                                                                                    MUM- OF APPEALS
                                                                                       1 VESiON 11

                                                                                 Mil MAY - 6     AM 8 : 28

                                                                                    STATE OF WASHIHGTON

                                                                                    RY
    IN THE COURT OF APPEALS OF THE STATE OF WA                                                  ligTON.

                                                DIVISION II

In re the Welfare of                                                         No. 44868 -8 -II


       A.B.,


STATE OF WASHINGTON, DEPARTMENT
OF HEALTH & SOCIAL SERVICES,


                                 Respondent,


       v.



                                                                 ORDER GRANTING MOTION TO
                                                                                PUBLISH


                                 Appellant.


       Appellant E.I. moves this court for publication of the unpublished opinion filed on April

1, 2014. The court having reviewed the record and files herein, now, therefore, it is hereby

        ORDERED that the final       paragraph    that   reads, "   A majority of the panel having determined

that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public

record pursuant   to RCW 2. 06. 040, it is .
                                           so   ordered."   is deleted. It is further

        ORDERED that the opinion will now be published.


        DATED this        T          day   of    JI , ,                     2014.




                                                              ACTING CHIEF JUDGE
                                                                                                              FILED
                                                                                                 COURT OF APP'EALS
                                                                                                         DIVISION II
                                                                                               2011-1
                                                                                                        APR    I   AM 9: 2
                                                                                               ST       E 0    WASHING




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II


In re the Welfare of                                                           No. 44868- 8- II


         A.B.,


STATE OF WASHINGTON, DEPARTMENT
OF HEALTH & SOCIAL SERVICES,

                                     Respondent,


         v.



                                                                         UNPUBLISHED OPINION .


                                       Appellant.


         JOHANSON, J. —           E.I. is the mother of A.B. The juvenile court terminated E.I.'s parental

rights to A.B. based on a finding that E.I. had cognitive impairments that would never allow her
to   parent   A.B.   on   her   own.     We agree with E.I. that cognitive impairments . alone are not


parenting deficiencies, and that the Department of Social and Health Services ( DSHS) failed to

meet its burden to prove that E.I. is currently unfit to parent A.B. We reverse the juvenile court' s

order   terminating E. I.' s    parental rights   to A.B.   and remand   for further   proceedings.
No. 44868 -8 -II



                                                                    FACTS

                                                                                                       1
           E. I.   and   N.B.     are    the parents of      A.B., born       February 2011.               E.I. also has an older child,


J. G.,   with a     different father         and who         is   not   the   subject    of     this   dependency.       In October, the


juvenile     court   found that A.B.          was a     dependent        child under       RCW 13. 34. 030( 6)( c).         The juvenile


court found that N.B.' s criminal history and violent behavior posed a serious risk of harm to A.B.

The juvenile court found that E.I. was unable to care for A.B. because she failed to recognize the

risk     that N.B.   posed        to the child.    A dispositional             order was entered             in November.     Under the


dispositional       order,       E. I.   was ordered    to   participate      in the    following          services:   domestic violence


 DV)      support services           through the   Young          Women' s Christian Association ( YWCA),                     a drug and

alcohol assessment, individual counseling, a parenting class, and a parenting assessment.

            The first      dependency        review order was entered on                  February 6,          2012.   The dispositional


plan remained the same with the exception of the parenting assessment, which the juvenile court

changed to a neuropsychological evaluation. According to the review hearing order, the provider

for the neuropsychological evaluation was not available until March, and the juvenile court

ordered-DSHS -
         -   to-attemptto Mind = providerwith-tattier-appointments: . The.review hearing - rder-
                               a                                                         o

also      changed        A.B.'   s   permanency     plan          from   reunification          to   adoption.     Four days later, on


February 10, DSHS filed                    a petition   for       termination    of     E.I.'   s parental rights.       The petition for


termination did not identify any specific parenting deficiencies.




  N.B.' s rights were terminated at the same time as E.I.' s. A commissioner of this court affirmed
 the order terminating N.B.' s parental rights, and a panel of this court denied his motion to
 modify the ruling. N.B., therefore, is not a subject of this appeal.
            A commissioner of this court also considered E.I.' s appeal on an accelerated basis under
 RAP 18. 13A, then referred the appeal for consideration by a panel of judges.

                                                                          2
No. 44868 -8 -II


         While the      petition    for termination was pending, the juvenile                     court held another


dependency     review    hearing     on   July   11, 2012.       The only services ordered for E.I. were DV

support services and a     parenting       class.   By this point in the dependency, E.I. was in the process

of   separating from N.B.     E.I.   and   N.B.     separated   permanently in August, 2012.           Another review


order was entered on      January    7, 2013.       At this time, the juvenile court ordered E.I. to engage in

individual counseling and medication management, and to continue working with a parenting

coach.     As of the January 7 hearing, the permanency plan listed for A.B. was adoption;

reunification was no longer listed as a secondary permanency plan.

         The termination fact -finding         hearing   was    held   on   April 1   and   2, 2013.   DSHS presented


three   witnesses:   Dr. Lawrance Majovski, the provider who performed the neuropsychological


evaluation;    Linda West, E.I.' s parenting           coach;    and   Lisa Sinnett, E.I.' s      social   worker.   E.I.


presented testimony from Debby Brockman, E.I.'s DV counselor; and Cory Wetzel, E.I.' s
employer. E.I. also testified at the termination fact -
                                                      finding hearing.

         Dr. Majovski testified that he performed a neuropsychological evaluation to evaluate

E. I.' - brain = ""=
                behavior and- emotional =fiuictiomng- status:                   He also performed . a.-- parenting--

 assessment.       Majovski    diagnosed         E.I. with      a cognitive disorder not otherwise specified


  cognitive   impairment)     and   impaired intellectual        abilities.   Majovski noted that E.I.' s parenting

 strengths were an ability to nurture her children and having a calm demeanor. He also observed

 that there were no adverse circumstances or safety concerns during the one hour he observed E.I.

 with her children. When asked what E.I.' s weaknesses were, Majovski responded,

          Limited in her insight, understanding,                 and decision- making that applies to
          judgment and reasoning, how you go about making decisions if you had to have
          one -on -one with one child, as parent to child, much let alone one to two to three
          or four children.



                                                             3
No. 44868 -8 -II


                  Limited intellectual ability, which affects her cognitive challenges and the
           impairment we' ve already discussed, or I have testified, that limit her ability.to
           have insight; reason, to . achieve productive solutions to complex challenges;
           multitasking, decisions you have to make; also affected by comprehension level in
           reading; also her memory and ability to 'assimilate a lot of information and hold it,
           to use that for manipulating data and information to reach productive solutions.

1 Report       of    Proceedings ( RP)        at   27. Majovski opined that on a " more probable than not" basis,


E. T.   would    be    unable     to     parent without a coparent, companion, or supportive              help.   1 RP at 28.


Majovski        did     not    recommend           any     services     for E. I. because he stated that her cognitive


impairments were unlikely to change.

           West       was     E. I.' s   assigned    parenting     coach.       West worked with E.I. from the end of

September 2012              until      January     2013.     Prior to working        with   E. I., West received copies of


visitation notes         and a      copy of Dr. Majovski'           s report.    West worked with E.I. for 10 two -
                                                                                                                  hour


sessions       during the period of time E. I. was             referredto services.      West' s final report was issued on


January 21, 2013, 19 days after the January 7 review order in which the juvenile court ordered

E.I. to continue working with the parenting coach and approximately two months before the
termination trial.


           West identified four             specific goals     for E.I.: ( 1)    understanding normal child development,

  2)    following      a child' s    lead in play, ( 3)     serving healthy food, and (4) increasing safety. As to her

 initial concerns about A.B.' s safety, West testified,

           Well, I think that one of the concerns was that it was her safety and then keeping
           him safe through the domestic violence pieces that were happening and that [ E.I.]
            could make good choices for herself and [ A.B.].
                        I didn' t feel that there was any concern for his safety during the visits.
            She      was always          watching him,       and   he   never   did anything dangerous.     So it was
            more around if she had him alone at and things got out of hand.

 1 RP     at   59.    As to her conclusions regarding E.I.'s progress in learning child development, West

 testified,
No. 44868 -8 -II


           I think that it   would   have taken        a    few --   several more months for her to really get
           that kids do develop certain ways, you know, emotionally, physically, with
           language. So I       would   have had to --         from where I stopped, I' m not really sure she
           understood that.


1 RP at 64.

           One of West' s greatest concerns regarding E.I. was that she had to remind E.I. to slow

down       and    let A.B. lead the play.             She was also concerned that E.I. asked A.B. too many

questions.        However, in her final          report,     West     wrote, "      On our last visit she did a good job of


following [ A.B.' s] lead and asking appropriate questions that helped him learn and engage with
her."      Ex. 9.     West also expressed concern about E.I.' s ability to engage A.B. in calming

activities such as       rocking   him     or   reading.       West also believed that E. I. engaged with A.B. more


as a playmate than a parent, particularly because West did not observe E.I. say things such as •

 I' m    mama and you' re       my   son"   to A. B.    during       visits.   1 RP at 63.


           West testified that by the end of the period of her referral, E.I. was bringing A.B. healthy
food at     visits and   that   healthy    food   was no        longer   a concern.        However, in her report she noted,


   E.I.]   was unable to vary much from [the better food choices such as yogurt, rice, chips, gummy

treats, and drinks] which maybe [ sic] an indication of her lack of creative thinking and problem -

 solving    skills noted     in her neuropsychological             evaluation."        Ex. 9.


            Finally, West testified to several concerns she believed existed as to E.I.' s ability to meet
 A.B.'   s needs and provide         for his. safety.          First, she stated that she was concerned because E.I.


 was originally living alone in an apartment and then had to move back in with her parents.
 Second, she did not believe that E.I. had the capacity to organize and maintain a routine for A.B.

 Third,    when asked about                concerns         regarding E. I.' s ability to       protect   herself   and   A.B., West
                                     any


 stated     she   believed that E. I. had         a   lot    of progress       to   make   in keeping herself        and   A.B.   safe
No. 44868 -8 -II



because E.I. was very " wishy- washy" when making a decision about how to deal with the car she

shared with      N.B.     after    they    separated.    1 RP   at   66.       Fourth, West believed that E.I. could not


manage her time and schedule because she was late to visits on a couple of occasions due to a

new      work    schedule.         In her fmal report, West referenced two additional incidents which

concerned       her: ( 1) E. I. once took her older son, J. G.; to work with her fora 10 -hour shift, and


 2) she asked permission to bring A.B. to J.G.' s birthday party which was scheduled for 7 PM.

The only safety concern West identified during visits was one occasion when E.I. did not stop

A.B. from running with a sucker in his mouth.

            West concluded that E.I. would not be able to care for A.B. as a single parent because she

                                                lacked decision -                                                      Although
was      emotionally immature             and                   making            and problem- solving       skills.




West testified that E.I. would probably be able to parent with her family' s support, she concluded

that E.I.' s prognosis for improving her parenting skills was poor.

            Sinnett   was   E. I.' s   assigned caseworker at. DSHS.               Sinnett testified regarding the services

provided      to E. I.    She stated that E.I. engaged in the drug and alcohol assessment, but there were

no rioted drug or-alcohol issues: ""She also
               -                                            testifiedthatslie-referred-E:I:to :individual counseling
                                                                                            -


 at the " Center for Child and Family Therapy" but the service ended after three sessions because
 it   was   determined that E.I. did          not   have any clinically        significant   issues. The first parenting class


 Sinnett     referred .  E.I. to   was "   Parenting    Children Who Witness Domestic Violence."                   E.I. attended


 and completed           that parenting       class.   Then. Sinnett referred E.I. to " Nurturing Parenting" which

 E. I. began to              and
                      attend _         then dropped.       Sinnett later        referred   E. I. to " Love   and   Logic" at the .


      Parenting Place."        E. I.   also     completed    Love        and   Logic.      Finally, Sinnett referred E.I. to

 Nurturing Parenting again but E.I. did not attend.



                                                                     6
No. 44868 -8 -I1



          Sinnett stated that E.I. was originally ordered to do a parenting assessment, but that

service    was     later       changed      to   a    neuropsychological                evaluation.          Sinnett       changed   the


recommendation          because ( 1) E. T.       exhibited a "[        f]lat   affect," (     2) Sinnett would have to be very

concrete and specific when              discussing      services with           E.I.,   and (   3) Sinnett would often have to


                                                               E. I.                     to   it later. 2 RP         10.    Sinnett was
write   down   what     they discussed verbally          so            could refer                              at




also concerned because E.I. would be positively engaged and then have some trouble following

through " at other       points     in time."     2 RP    at   14.      When Sinnett received the neuropsychological


evaluation, she did not refer E.I. to any additional services because there were no additional

services recommended               in the   report.    The other service E.I. was ordered to engage in was DV

support services.          E. I.   was referred       to the YWCA "            ALIVE" DV program and began working

with Brockman, an individual DV advocate.


          On cross -examination, Sinnett stated that she had no idea what other services might help

E.I.    E.I. asked Sinnett about additional hands -on parenting programs and Sinnett stated that

parent -child interaction therapy and " Safe Care" were at least two additional hands -on parenting

services:     Sinnett clid- riot refer-Et - either. service because -she- had -referred- her-to- hands=on . - -
                                          to-

parenting coaching with West. However she .did acknowledge that " Safe Care" could have been
 appropriate.




           Sinnett   also supervised some of             the   visits      between E. I.        and   A.B.    During her testimony

 the only negative incident Sinnett testified•about was that on one occasion A.B. was coloring by
 scribbling    with crayons and markers.               E.I. tried to get him to color a picture and told him the fire

 truck    should   be   red.    Sinnett testified that this incident demonstrated that E.I. was demanding of

 A.B. beyond his developmental capability.




                                                                       7
No. 44868 -8 -II



         Sinnett also testified that A.B. was doing very well, and meeting all of his developmental

milestones.     She opined that there was little likelihood E.I. would be able to remedy her parental

deficiencies.     And she testified that there were no adoption resources identified for A.B. and that


the only identified potential placement being considered by DSHS was placement with one of

A.B.' s paternal relatives. Sinnett opined that termination was in A.B.' s best interests.

         Brockman testified regarding her                work     with    E.I.    during   the   dependency.       Brockman


began working one -on -one with E.T. after she received the referral from DSHS in December

2011, but E.I. had already been attending                    support      groups     through the       program.     Initially,

Brockman worked with E.I. on recognizing patterns of abusive relationships, identifying healthy

relationships, and       safety planning.       During her    work with          E.I., Brockman never observed E.I. to


be cognitively impaired nor did she observe any difficulty with E.I.' s comprehension of the

topics   they   were     discussing. Over time, Brockman observed E.I. make significant progress in

understanding the harm         of   her relationship      with   N.B. Brockman also commended E.I.' s decision


to   separate   from N.B.     and make        the conscious decision to           maintain   that    separation.   Brockman


also-testified -
               thatE.I. had-..
                            decided iiot-to enter- into- any-relationships and to--
                                                                                  continue-working-

with Brockman on identifying warning signs and unhealthy behavior so she would be safe if she

 entered into a new relationship in the future.

          Brockman explained the circumstances surrounding the car that concerned West.

 Brockman       stated   that the car   was registered     in E. I.' s   name    but it   was used   by N. B.   E. I. retrieved


 the car from impound when N.B. was arrested and used the car while N.B. was incarcerated.

 Although the car was helpful to her in managing her schedule, E.I. felt uncomfortable keeping

 the   car, so she returned      the    car   to N.B.'   s mother.       After she returned the car, E.I. was able to

 purchase a vehicle of her own.

                                                                 8
No. 44868 -8 -II



         Brockman also testified regarding West' s concern that E.I. brought J. G. to work with her

during   a   10 -hour   shift at a    galley    on a   Navy    base.   Contrary to West' s understanding, E.I. had

J. G. with her during a day off when E.I.' s boss called her and asked if she could cover for some
people who      had   not shown       up   at work.     E.I. made sure that it was acceptable to bring J. G. and

that there was     a safe place       for him to stay     while she worked.          There was an office with a Naval


officer present where J. G. could watch television or videos, so E.I. brought him to work with her.

E.I.' s boss was able to relieve her after approximately two hours.

          Brockman       noted      that E.I.   also   had   unsupervised      visitation with         J. G.    Although J. G.' s


father was the primary residential parent, E.I. was able to take J. G. places unsupervised and

sometimes J. G. spent nights at E. I.' s home.

          In   addition,   Brockman testified regarding E.I.' s               housing         situation.    She explained that


when     E.I. originally      separated    from N.B.,     she was living in an apartment that was paid for based

on   their     combined       incomes.      When she was living alone, she could no longer afford the

apartment       and   bills    on    her individual income.            During the same period, E.I. was briefly

Tiirloughed"
           from-lierjobandwithout steadyincomehe=was-unable-toTibtaiihaisng=asszstarice:- . -

 Due to her financial         situation,   E.I.   chose   to   move    in   with   her   parents.     Brockman testified that



 she had visited the apartment at the time E.I. was living alone and the apartment was well taken

 care   of and   E. I. did     not   appear     to have any     problem       living     on    her   own.      It was only E.I.' s

 financial situation at the time, primarily a result of her decision to end her abusive relationship

 with N.B.,     which caused         her to leave the        apartment and move           in   with   her   parents.   Brockman



 also observed that E.I. was very self-sufficient in pursuing resources that may offer her housing
 assistance and was resourceful enough to seek out that assistance on her own.



                                                                 9
No. 44868 -8 -11


          E. I.' s   supervisor,       Wetzel, testified regarding E.I.' s               employment.             E.I. began as a food


service   worker       in the Navy galley, but                she was promoted            to   a   lead   position.      As a lead, E. I.


opened or closed           the galley    when     Wetzel        was not there.       Wetzel explained that at one point, due


to lack    of   work, they       shut    down        one   of   the    galleys    and   E.I. was laid       off     However, Wetzel


immediately hired E.I.           back    when     the galley          reopened.    Wetzel also testified that E.T. was such a


valuable employee that Wetzel was able to maintain•her employment even though they had to

later lay off other employees again.

          Wetzel       characterized      E. I.' s     work as        outstanding.      She noted that E.I. was very punctual

and   managed         her changing            schedule.       Wetzel also testified that E.I. was promoted to lead


because she had been able to learn every area of the galley including the cash register and

helping    with      the   cash management.             E.I. was able to multitask, address problems as they came

      manage all       her tasks efficiently,           and   handle the      stress of    high- capacity,        busy   days.   E.I. was
up;


also able to manage inspections in the galley and perform additional tasks related to inventory

and ordering.


          Wetzel"also-clarifiedtifccirctustances- tegarding-the -- -Yiat J:G: - ame to :work x tth E:I:-
                                                                day t         c

Wetzel had           asked   E.T. to    come     in,   and    E. I.   stated she   had J. G.       with   her.    Wetzel told her that


there was an office with a television and videos where J. G. would be supervised by the Navy

watchman.            Wetzel   also     told   her that it     would      be for approximately two hours.                  Because there


was a safe place for J.G. and she would only be working for a couple of hours, E.I. came to work

to fill in for Wetzel until Wetzel could relieve her.


           In addition to observing E.I.' s work first hand, Wetzel also supervised several employees

 with   disabilities,      including     people. with         learning     disabilities.       Based on her experience working




                                                                         10
No. 44868 -8 -II



with people with learning disabilities, Wetzel did not believe that E.I. had a learning disability

that impeded her ability to function independently.

        E. I. introduced many   reports created   by   the   visit supervisors.   According to the visitation

notes, the visits between E.I. and A.B. were positive. E.I. played wiih A.B. on push cars; bikes,

and wagons.    They   colored and played with     Play -Doh.     E.I. talked to A.B., asked him questions,


and helped him identify lots of toys with words. A.B. clearly liked cars, so E.I. often picked him

up and held him so he could look out the window and watch the cars drive by. E.I. responded to

A.B.' s cues such as fussing or acting tired, and she was able to redirect any inappropriate

behavior.   The visitation reports demonstrate that E.I. regularly responded to safety concerns

appropriately. Neither of the incidents that West or Sinnett identified as problematic was in the

visitation reports submitted into evidence.


        E.I. testified that it was a hard decision for her to leave N.B. because they were a family

but it was a positive decision. E.I. also explained that she and Brockman had developed a safety

plan so E.I. knew exactly what to do if N.B. became a danger to her or her children. E.I. testified

that she currently ..
                    lived withkiex parentg'-for-finaric al=reasons- but - hen - ire- was—
                                                                        w     s          able to; -sh• -

would   seek   her   own   apartment.   She also stated that her parents were a good resource and


support for her, as well as her best friend who also had children. When asked what she would do

if the termination petition was dismissed and the dependency continued, E.I. responded,

        My plan is for my child to be home and returned to me and at least give me the
        chance to work in - ome dependency; because obviously since I' ve been working
                           h
        with them for these past two years or whatnot, obviously they must not know who
        I am and what I' m capable of, what I' m capable of doing, or what I can do for
        myself and my child.


 2 RP at 94. E.I. also agreed she would continue participating in services if necessary.



                                                       11
No. 44868 -8 -II



         A.B.' s court- appointed special advocate ( CASA). stated that she believed E.I.' s parenting

deficiencies were difficulty making decisions and perceiving the needs of a child at different

ages.    The CASA       stated   that   she    believed termination          was      in A. B.'   s   best interests.      She also


noted that DSHS was investigating a placement with a paternal relative.

         At the conclusion of the fact -
                                       fmding hearing, the juvenile court made an oral ruling

terminating E. I.' s   parental rights as       to   A.B.      The juvenile       court stated, "[      I]t literally makes me

sick to have to terminate her parental rights. because she' s a kind, good, sweet person who has

neurological    deficits, the type      of   thing   that   can'   t be really   cured   by   a course of    therapy." 2 RP at

175- 76.     The juvenile    court      specifically found that E. I.' s              witnesses       testified "   truthfully and

accurately,"   but that E.I.' s cognitive impairments resulted in a lack of judgment and insight as it

related to the subtle needs of children. 2 RP at 176.

           The juvenile   court also         entered written         findings    of   fact   and conclusions         of   law.   The


juvenile court found E.I. to be currently unfit because her cognitive impairments prevented her

from making intuitive judgments,                grasping child development, perceiving subtle dangers to

eliifidren; understariding the -impact - f-things- onchildren; =r-communicating- effectively-withher
                                       o                       o

child.     The juvenile court also found that there were no services that could be offered to E.I.

because her     cognitive   impairments          could not         be   changed.      The juvenile court concluded that


DSHS proved the statutory requirements for termination by clear, cogent, and convincing

evidence, and      that termination was in the best interests                of   the    child.   The juvenile court entered


 an order terminating E.I.' s parental rights to A.B. E.I. appeals.




                                                                   12
No. 44868 -8 -II



                                                               ANALYSIS


          E.I. argues that the juvenile court erred by finding that DSHS proved all the statutorily

required     factors for termination                by   clear, cogent, and      convincing       evidence.   Specifically, she

argues that DSHS failed to prove ( 1) that all necessary services reasonably capable of correcting

her parenting deficiencies                   were   expressly   and   understandably       offered or provided, (    2) that she


was    currently      unfit   to   parent      A.B., (   3) that there was little likelihood that conditions would be

remedied such that A.B. could be returned to E.I. in the near future, and ( 4) that continuation of

the parent and child relationship clearly diminished.A.B.' s prospects for early integration into a

stable and permanent home. Because we hold that DSHS failed to meet its burden to prove that

E.I.   was   currently        unfit     to   parent   A.B.,    we do not address the remaining issues E.I. raises on

appeal.




          The juvenile court may terminate a parent' s rights as to his or her child if DSHS

establishes      by    clear, cogent, and             convincing      evidence   that the   parent   is currently   unfit.   In re .


Welfare      ofA.B.,     168 Wn.2d 908, 925, 232 P. 3d 1104 ( 2010).                       The juvenile court must also find


that DSHS " proven sixfactors byclear, cogent; and -
     "    has                 -                    convincing-evidence:

                       a) [   t] hat the child has been found to be a dependent child;
                       b) That the court has entered a dispositional order pursuant to RCW
           13. 34. 130;
                       c) That the child has been removed or will, at the time of the hearing,
          have been removed from the custody of the parent for a period of at least six
          months pursuant to a finding of dependency;
                       d) That the services ordered under RCW 13. 34. 136 have been expressly
           and understandably offered or provided and all necessary services, reasonably
           available, capable of correcting the parental deficiencies within the foreseeable
           future have been expressly and understandably offered or provided;
                        e) That there is little likelihood that conditions will be remedied so that
           the   child can         be   returned      to the   parent   in the   near   future.   A parent' s failure to
           substantially improve parental deficiencies within twelve months following entry
           of the dispositional order shall give rise to a rebuttable presumption that there is
           little likelihood that conditions will be remedied so that the child can be returned

                                                                        13
No. 44868 -8 -II



          to the   parent   in the   near    future.     The presumption shall not arise unless [ DSHS]
          makes a showing that all necessary services reasonably capable of correcting the
          parental deficiencies within the foreseeable future have been clearly offered or
          provided[; and]

                     f) That      continuation          of    the       parent     and    child    relationship   clearly
          diminishes the child' s prospects for early integration into a stable and permanent
          home.


Former RCW 13. 34. 180( 1)(           a) -( f)   2009); A.B., 168 Wn. 2d
                                                 (                                   at   911.    Then, DSHS must prove by a

preponderance of the evidence that termination of parental rights is in the child' s best interests.

RCW 13. 34. 190( 1)( b).


          Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown to

be "'   highly probable.'"     In    re    Sego, 82 Wn.2d 736, 739, 513 P. 2d 831 ( 1973) ( quoting Supove v.


Densmoor, .225 Or. 365, 372, 358 P. 2d 510 ( 1961)).                              We will not disturb the juvenile court' s


findings    of     fact if they      are    supported        by    substantial       evidence.      Sego,    82 Wn.2d at 739.


Substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth

of    the declared    premise.       Bering      v.   SHARE, 106 Wn.2d 212, 220, 721 P. 2d 918 ( 1986),                      cert.




dismissed, 479 U.S. 1050 ( 1987). "[                  E] vidence that may be sufficiently ` substantial' to support

an ultimate-fact -in issue based upon a "`preponderance -of-the- evidence'- may-not-be -sufficient to -

support an ultimate fact in issue, proof of which must. be established by clear, cogent and .

convincing       evidence."    Sego, 82 Wn.2d            at   739 ( footnote         omitted).     We do not make credibility

 determinations or weigh evidence. Sego, 82 Wn.2d at 739 -40.

                                                       CURRENT UNFITNESS


           Identifying   parenting deficiencies is                not   the   equivalent of      proving   parental unfitness.   In


 re   Dependency      of Schermer, 161 Wn.2d 927, 943, 169 P. 3d 452 ( 2007) (                             citing In re Welfare of

 KK, 119 Wn.2d 600, 609,                   836 P. 2d 200 ( 1992),                cert.   denied, 507 U.S. 927 ( 1993)).          A


 dependency determination requires a showing of parental deficiency by a mere preponderance of
                                                                    14
No. 44868 -8 -II



the   evidence.     Schermer, 161 Wn.2d       at    942. Under RCW 13. 34. 030( 6), a child is a dependent


child if the child '


                     a) [   h] as been abandoned;
                     b) Is abused or neglected ...;
                     c) Has no parent, guardian, or custodian capable of adequately caring for
         the child, such that the child is in circumstances which constitute a danger of
         substantial damage to the child' s psychological or physical development.


Dependencies are subject to a " relatively lenient preponderance standard" because dependencies

serve " the important function of allowing state intervention in order to remedy family problems

and provide needed services."           Schermer, 161 Wn.2d at 942. A dependency finding under RCW

13. 34. 030( 6)( c) need not be based on proof of actual harm, but instead can rely on a danger of

harm to the        child.     Schermer, 161 Wn.2d         at   951.   A juvenile court has broad discretion in


determining when there exists a risk of harm. Schermer, 161 Wn.2d at 951.

          But "[   a] dependency proceeding and a termination proceeding have different objectives,

statutory   requirements,        and safeguards."       KK, 119 Wn.2d at 609 ( citing In re Hiebert, 28 Wn.

App.    905, 908, 627 P. 2d 551 ( 1981)).           While identifying parenting deficiencies is sufficient to

support 'a-dependency; it -s -unconstituti- nal- to- permanently terminate-a-parent' s -rights without a- - --
                          i               o

finding   of unfitness.        KK, 119 Wn.2d       at   609.    Further, DSHS is held to the higher burden of


proving current unfitness in a termination proceeding by clear, cogent, and convincing evidence,

rather than the more lenient preponderance of the evidence standard applied in dependency

proceedings. RCW 13. 34. 190( 1)( a)( i).

          Therefore, a finding of current unfitness requires more than the determination that DSHS

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

 dependency        proceeding.      See RCW 13. 34. 030( 6); Schermer, 161 Wn.2d          at   943.   To meet its


 burden to prove current unfitness in a termination proceeding, DSHS is required to prove that the

                                                               15
No. 44868 -8 -II



parent' s parenting deficiencies prevent the parent from providing the child with " basic nurture,

health,   or       safety"      by    clear,   cogent, and          convincing      evidence.    See RCW 13. 34. 020; see also


                                                                    ii) (parent has                   that "                 the parent
generally former RCW 13. 34. 180( 1)(                         e)(                       a condition            render[ s]




incapable of providing proper care for the child for extended periods of time or for periods of
                                                                                    2
time that present a risk of                 imminent harm to the            child ").




          Here, the juvenile court made the following factual finding regarding the parenting

deficiencies that rendered E.I. currently unfit:

                           E.I.]   has neurological and cognitive deficits that do not allow her parent
          to [      sic]   the     child.       Because       of    these deficits,     she cannot make the intuitive
          judgments that               parents      have to   make.      She is not able to grasp child development,
          and while she is able to perceive obvious dangers to herself, she is unable to
          perceive          the       subtle   dangers that impact               children.    She cannot understand the
          impact and effect things have on children, or communicate effectively with the
          child.



Clerk' s Papers.           at   57.    The trial court relied on this finding to conclude that DSHS had met its

burden to          prove    that E. I.      was   currently    unfit   to   parent   A.B. - The juvenile court' s findings of fact


are not supported by evidence substantial enough to support the conclusion that the DSHS met

its burden to-prove -
                    current unfitness by-clear; - ogent; and - onvincing evidence. -
                                                c            c




 2
   We also note that . third party custody statutes place " a high threshold burden on a petitioner
                     the
 seeking noriparental custody." In re Custody of B.MH., 179 Wn.2d 224, 235 -36, 315 P.3d 470
  2013). To meet this heightened standard, a party seeking to interfere with a parent' s liberty
 interest in the custody of her children must show that the parent is either unfit or custody with the
 parent would result                  in   actual   detriment to the         child' s   growth and    development.              H., 179
                                                                                                                            B. M.

 Wn. 2d       at   235. For the            purposes of nonparental          custody,    our   Supreme Court has     stated, "   A parent

 is   unfit   if he    or she cannot meet a child' s            basic needs." B.M.H., 179 Wn.2d at 236 ( citing RCW
 26. 44. 010);       see also         generally In     re   Aschauer, 93 Wn.2d 689, 694, 611 P. 2d 1245 ( 1980) ( "[ the

 mother] lacks the necessary capacity for giving parental care ").
                                                                            16
No. 44868 -8 -II



             E.I.' s parenting deficiencies, as identified in the dependency order, were all related to the

DV in her relationship            with   N. B.   By the time of the termination hearing, E.I. had remedied the

parenting deficiencies related to DV by removing herself from her relationship with N.B.,

understanding           the    need    for maintaining the           separation,   deciding not to enter into new

relationships, learning the characteristics and harms of DV relationships, and completing all her

DV-related services. The juvenile court recognized that E.I. had the ability to understand how to

cease being the victim of DV but somehow believed that she was unable to understand how DV
affected      her   child.     The juvenile court reiterated this concern in its written finding regarding

E.I.'   s   inability   to   perceive subtle     dangers   and   the impact     of "things"   on children.   The evidence


presented in this case is not sufficient to persuade a fair -
                                                            minded, rational person that E.I. is

unable to perceive the dangers that DV poses to her child. .

             There is also insufficient evidence to support the juvenile court' s finding that E.I. was

unable       to   communicate         effectively   with   A. B.    West testified that sometimes she felt that E.I.


asked A.B. too many questions during play, but there is also ample evidence that E.I. interacted
withA.. . -on arr age=appropriate -level and-was -able- to- teach him words through-identifying toys
      B

and objects.         There was no evidence that asking A.B. too many questions during play prevents

E.I. from effectively communicating with him. Sufficient evidence does not support the juvenile

 court' s finding that E.T. is unable to effectively communicate with A.B.

              There were some minor safety concerns that were articulated by West and Sinnett such as

 the incident       involving      A.B. running       with    the   lollipop.    West also testified that E.I. had not


 learned      a sufficient amount about child              development.     Therefore, there is sufficient evidence to




                                                                    17
No. 44868 -8 -I1



support the finding that E.I. has parenting deficiencies related to a lack of understanding of

childhood development and trouble identifying some subtle dangers to children.

        However, there is insufficient evidence to support the trial court' s finding that E.I. lacks

intuitive judgment      and    decision -
                                        making        skills.   Although West testified that she was concerned


about ' E.I.' s decision -
                         making ability based on a misunderstanding regarding the shared car,

Brockman explained that E.I. had concerns about keeping the car, made a clear decision about

what   to do   with   the   car ( give    it to N.B.' s   mother),   and then proceeded to buy a car on her own.

The juvenile    court       explicitly found that Brockman testified truthfully.         Therefore, we conclude


that the trial court' s finding regarding day -to -day decision -making ability is not supported by
sufficient evidence.



         West and Sinnett expressed concern about E.I.' s judgment and decision- making skills

because they believed she was unable to live independently, and the juvenile court relied on
these opinions in its findings of fact. West' s and Sinnett' s opinions were based solely on the fact

that E. I. moved in         with   her   parents.   However, Brockman' s credible testimony established that

E:I- - as -able- to- live -on "her own; but because -she -made -the -
     w                                                              decision - o-leave- her- abusive-
                                                                             t

relationship, she did not have the financial resources to continue living in the apartment that she
had previously        shared with        N.B.    Brockman also testified that E.I.' was very proactive about

 trying to reestablish an independent living situation by seeking out housing resources.
 Accordingly, a fair -
                     minded person could not conclude that E.I. lacked judgment or decision -

 making skills based exclusively on E.I.' s living situation, and substantial evidence does not
 support the juvenile court' s findings that E.I. is incapable of adequate judgment or decision

 making.




                                                                18
No. 44868 -8 -I1


         Substantial        evidence      supports          the   juvenile     court' s finding that E.I.' s cognitive

impairments resulted in a lack of understanding of child development stages and difficulty

identifying    certain subtle     dangers.       Therefore, DSHS identified parenting deficiencies that create

a risk of   harm that      warrants     intervention        and participation     in   services.   However, the findings of


fact do not show that DSHS proved that E.I. was unfit by clear, cogent, and convincing evidence.

         DSHS was required to prove that it is " highly probable" that E.I.' s cognitive impairments

rendered    her incapable        of   meeting A.B.'     s   basic   needs.    Here, there were never any serious safety

concerns     regarding E.I.' s        care of   A.B.    A.B. was removed from the home due to the safety risk

posed   by    N.B.'   s   abusive      behavior.       E.I. removed this risk to A.B.' s safety by leaving her

relationship    with      N.B.   The evidence also showed that E.I. was able to provide healthy, food for

A.B.,   and E.I. was able to maintain a safe home both on her own and with her parents. Although

E.I.' s cognitive impairments may pose a risk of harm to A.B due to an inability to identify .subtle

dangers for the purpose of establishing a dependency based on these concerns, it is not highly

probable that A.B. will be harmed by E.. .'s inability to recognize subtle safety risks or that E.I.
                                       I

would- be- unable -
                  to -provide - or
                              f                     basic- needs
                                                his -                 --   Therefore; =
                                                                                      DS-HS- did-not- meet-its-burden -
                                                                                             -        -     -         to--


 prove that E.I.' s cognitive impairments render her unfit to parent for the purpose of permanently

 terminating her parental rights to A.B.

         Here, E.I.' s cognitive impairments impacted her ability to parent because they interfered

 with her ability to understand child development and identify subtle safety risks to her child.

 Cognitive impairments that result in a parent having difficulty learning specific: aspects of

 parenting but that do not present an immediate or severe risk to the child' s safety are not
 sufficient   to   render a parent        currently    unfit.       Therefore, the juvenile court erred by concluding

 that DSHS met its burden to prove that E.I. was currently unfit by clear, cogent, and convincing

                                                                     19
No. 44868 -8 -II


evidence.        Because DSHS failed to meet its burden to prove that E.I. is currently unfit, the

juvenile court' s order terminating E.I.' s parental rights as to A.B. is reversed.

        Although we do not address E.I.' s remaining claims regarding whether DSHS met its

burden to prove that all necessary services were offered or provided or there was little likelihood

conditions could be remedied in the near future, we note that the juvenile court relied heavily on

Majovski'                       that E. I.' s                  impairments        could not    be    corrected.   However, the
             s   testimony                      cognitive




juvenile    court' s    focus   was   misplaced. In In           re    Dependency       of T.L.G.,   126 Wn. App. 181, 203,

108 P. 3d 156 ( 2005),          the court held that mental illness alone is not proof that a parent is unfit or

incapable. "      The court must examine the relationship between the mental condition and parenting

             T.L. G., 126 Wn.         App.   at   203.    The        same   is true   of cognitive   impairment. Because the
ability."


existence of cognitive impairments is not proof that a parent is unfit unless the cognitive

impairment directly impacts the ability to parent, the question is whether the resulting parenting

deficiencies      can   be   corrected.      See In      re   Dependency        of T.R.,   108 Wn. App. 149, 165, 29 P. 3d

 1275 ( 2001).      In other words, the proper inquiry for the juvenile court is whether the parenting

 deficiencies "
              resulting                                                     can be teinedied; -
                                                                                              and --
                                                                                                  Whether services can be 7.
                                                                                                                       -

 offered or provided         that may remedy the parenting deficiencies.                       At times, such as with some


 mental illnesses, services may be directed toward remedying both the underlying cause of the

 parenting deficiencies in          addition      to the parenting deficiencies themselves. However, even when


 the underlying cause of the parenting deficiency cannot be remedied, the juvenile court must

 determine whether services were offered to remedy the resulting parenting deficiencies and

 whether there is a likelihood that the resulting parenting deficiencies can be remedied in the near

 future. Former RCW 13. 34. 180( 1)( d), ( 1)(                 e).




                                                                       20
No. 44868 -8 -II



        The juvenile court' s order terminating E.I.' s parental rights as to A.B. is reversed because

DSHS failed to meet its burden to prove that E.I. was currently unfit. We remand to the juvenile

court for further proceedings consistent with this opinion.


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




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