     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE DEPENDENCY OF J.N.,                 )      No. 74460-7-I
DOB, 7/28/13,                             )
                                                                                C^3


DEPARTMENT OF SOCIAL AND                  )
HEALTH SERVICES,                          ]                                     m
                                                                                —o


                                          .                                    CTi
                     Respondent,
                                                 DIVISION ONE                  2:
      v.

                                           1                                   O
BRYAN CORBETT, JR.
AKA BRYAN NICHOLS,                         i      UNPUBLISHED OPINION

                     Appellant.           \       FILED: September 26. 2016


       Spearman, J. — Bryan Corbett appeals an order terminating his parental
rights to his son, J.N. He argues that the record does not support the court's
finding that the Department of Social and Health Services (DSHS) offered or
provided all necessary services, reasonably available, capable of correcting his
parental deficiencies within the foreseeable future. He also argues that the
juvenile court failed to consider the statutory factors pertaining to incarcerated
parents provided by RCW 13.34.180(1 )(f). We find no error and affirm.
                                       FACTS

       Bryan Corbett, aka Bryan Nichols and Chamell Harris are the parents of J.
N., born on July 28, 2013. Corbett was charged in King County Superior Court
with allegations of domestic violence against Harris and J.N., based on incidents
No. 74460-7-1/2


that occurred on February 2 and 25, 2014. On February 2, while Harris was

holding J.N. in her arms, Corbett allegedly "threw a 'butcher block' that was the

size of a brick that struck the child in the head." Clerk's Papers (CP) at 325. J.N.

suffered a closed head injury and was admitted to the hospital. On February 25,

2014, Corbett was arrested when U.S. Marshals found him hiding under a bed in

Harris's home, in violation of a no contact order.

       Corbett was subsequently convicted by a jury of burglary in the first

degree-domestic violence and two counts of domestic violence felony violation of

a court order.1 He was also convicted of misdemeanor assault-domestic violence

against J.N. On August 22, 2014, Corbett was sentenced to 152 months (12.66
years) in prison for the burglary conviction and to two concurrent 60-month terms
for the violations of a court order. The sentencing court also imposed a lifetime

no contact order against Corbett as to Harris and J.N.2
        DSHS filed a dependency petition as to J.N. on February 28, 2014.3 On
August 18, 2014, two weeks before Corbett was sentenced, the juvenile court
found J.N. dependent as to Corbett. The dispositional order required Corbett to

        1Corbett has an extensive criminal history that includes convictions for assault, burglary,
possession of controlled substances, violation of protection orders, and other offenses committed
during 1999-2012.

         2 On appeal, we struck Corbett's lifetime no contact order and remanded for
reconsideration and resentencing because the trial court failed to enter findings regarding the
order's reasonable necessity and duration as required by In re Rainey, 168 Wn.2d 367, 377, 229
P.3d 686 (2010). See State v. Corbett. 192 Wn. App. 1050, 2016 WL 785073 (2016). Corbett filed
a petition for review challenging the guilty verdict which is pending before the Washington
Supreme Court (Supreme Court No. 93023-6).

        3On March 5, 2014, the juvenile court entered an order prohibiting Corbett from having
contact with J.N. or Harris to remain in effect until the dependency is dismissed. Ex. 1.
Dependency was established as to Harris on May 2, 2014. On September 28, 2015, Harris's
parental rights were terminated by default.
No. 74460-7-1/3


comply with random urinalysis testing twice a week for 90 days, complete a

drug/alcohol evaluation and treatment program, participate in a domestic

violence treatment program by a state certified provider, as well as a

psychological evaluation with a parenting component, and to establish paternity.

      After sentencing, Corbett was sent to Coyote Ridge Corrections Center in

January 2015 and then to Stafford Creek Corrections Center in October. J.N.'s

social worker, Amanda Potter, testified that she "had made reasonable efforts to

ascertain whether" the court ordered services were available there. CP at 90.

She also testified that the State had been "unable to obtain the services of a

DSHS contracted and qualified psychological evaluator who will travel to Coyote

Ridge" to assess Corbett. CP at 91. Noemi Peredo, another social worker who

later assumed J.N.'s case, testified that the file contained letters and emails

showing that Potter had made at least five attempts to contact the Department of

Corrections (DOC) regarding services for Corbett. Potter also determined that

Corbett could not participate in the parenting assessment component of the court

ordered psychological evaluation because of the lifetime no contact order.

       While Corbett was at Coyote Ridge, his DOC counselor, Brady Hinds,

spoke with Potter and confirmed that the facility could not provide a drug and

alcohol evaluation, random urinalysis testing, or domestic violence batterer's

treatment. Hinds testified that Corbett was placed in his Thinking for a Change

program that addressed anger issues and "teaches...to basically stop and think

before they act." VRP (12/01/15) at 128. Corbett completed the nine month

program, along with another four week voluntary course called Inside Out Dad.
No. 74460-7-1/4


Corbett also asked Hinds multiple times about getting a psychological exam, but

Hinds told him it would have to be at his own expense. Hinds also told Corbett

that he could not get substance abuse treatment until he was two years from his

release date.


       In October 2015, Corbett was transferred to Stafford Creek correctional

facility. Prior to the transfer, on March 12, 2015, the State obtained an order

striking all service requirements for the father, because no such services were

available while he was incarcerated. In May 2015, Peredo was assigned as

J.N.'s social worker. Although Corbett was advised of this change at the time,

Peredo testified that Corbett made no attempts to contact him to ask about J.N.

       Corbett's DOC counselor at Stafford Creek was James Forbis. Forbis

confirmed that none of the previously ordered services would be available until a

time closer to Corbett's release date. According to Forbis, Corbett was on track

for intensive outpatient care for substance abuse addiction, but it would not be

available to him until approximately 2022. Stafford Creek also has no programs

for counseling or treatment for domestic violence. Forbis testified that he had

never seen a psychologist come in to evaluate an offender. Nor was he aware of

a process for transporting children to the facility so an inmate's parenting abilities

could be evaluated. But he noted that children were permitted into the facility to

visit a parent. He also explained that it was possible to get permission to have a

psychologist or domestic violence evaluator come into the facility if the person

were prescreened and approved.
No. 74460-7-1/5


       Forbis also mentioned a DOC program called Redemption, a 21 week

course run by inmates, as a potential program for Corbett. The program included

"a whole lot of stuff for anything, all the way up to filling out a checkbook when

you're released." CP at 26. Stafford Creek offered the Redemption program,

along with Alcoholics Anonymous, Narcotics Anonymous, and a Partners in

Parenting class.

       At the pretrial conference on October 9, 2015, Corbett sought a

continuance based on not having received a witness and exhibit list. The juvenile

court granted a short continuance, rescheduling the trial for November 16, 2015,

in order for DSHS to present a settlement offer. Corbett moved to reinstate

services on October 29, 2015. Corbett requested another continuance on

October 30, 2015.

       In its November 6, 2015 order denying Corbett's request for a

continuance, the juvenile court found that Corbett "did not contest the motion

relieving the Dept of offering him services; and (2) he has not met the required

standard of extraordinary circumstances." CP at 258. After a hearing on

December 1 and 2, 2015, the court terminated Corbett's parental rights. Corbett

appeals.

                                   DISCUSSION

       Corbett seeks reversal of the termination order, claiming that evidence

before the court was insufficient to establish that all necessary services were

offered or provided as required by RCW 13.34.180(1 )(d) and to satisfy the

incarcerated parent provisions of RCW 13.34.136 and RCW 13.34.145. We will
No. 74460-7-1/6


uphold the trial court's findings if they are supported by substantial evidence. In

re Dependencv of K.D.S.. 176 Wn.2d 644, 652, 294 P.3d 695 (2013).

       Parents have a fundamental right to the custody and care of their children.

Ji, Santoskv v. Kramer. 455 U.S. 745, 753, 102 S.Ct. 1388, 71 LEd.2d 599

(1982). In Washington, before a court can enter an order terminating that right,

the State must satisfy the two-part test set out in RCW 13.34.180(1) and RCW

13.34.190. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104(2010).

The first part focuses on the adequacy of the parent and must be proved by

clear, cogent, and convincing evidence. A.B., 168 Wn.2d at 911. "Clear, cogent,

and convincing evidence exists when the ultimate fact in issue is shown by the

evidence to be 'highly probable.'" In re Dependencv of K.R., 128 Wn.2d 129, 141,

904 P.2d 1132 (1995) (internal quotation marks omitted) (quoting In re Sego, 82

Wn.2d 736, 739, 513 P.2d 831 (1973)). The second step focuses on the child's

best interest and is reached only if the first step is satisfied. A.B., 168 Wn.2d at

911.

       The first step involves six statutory factors set forth in RCW 13.34.180(1).

The factors are:

          (a) That 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;
No. 74460-7-1/7


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

In addition to finding the six statutory elements, due process requires that a court

make a finding of current unfitness before parental rights may be terminated.

K.R., 128 Wn.2d at 142. A finding that all six factors have been met raises an

implied finding of parental unfitness. Id.

      Corbett challenges the court's conclusions regarding RCW 13.34.180(1)

because, according to him, the underlying factual findings are not supported by

substantial evidence. Corbett claims that DSHS failed to show that it offered or

provided "all necessary services, reasonably available, capable of correcting the

parental deficiencies within the foreseeable future" as required by subsection

(1)(d). A service is necessary within the meaning of the statute if it is needed to
address a condition that precludes reunification of the parent and child. In re

Dependencv of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014) (citing ]n_re

Welfare of C.S.. 168 Wn.2d 51, 56, n.3, 225 P.3d 953 (2010)). The State must

tailor the services offered to the individual's needs. In re Welfare of K.J.B., 188

Wn. App. 263, 278, 354 P.3d 879 (2015) review granted, 184Wn.2d 1033

(2016).

      Here, the juvenile court concluded that:

       2.11     Services ordered under RCW 13.34.130 would have been
       expressly and understandably offered or provided to the father if he
          had been available to participate in the[m] and all necessary
       services reasonably available, capable of correcting the parental
No. 74460-7-1/8


          deficiencies within the foreseeable future have been expressly and
          understandably offered or provided.

          2.12    Even if the court-ordered services had been reasonably
          available to him in prison and even if Mr. Corbett had fully
          participated in the services, the services would have been unable to
          correct his parental deficiencies in the near future.4

CPat311.

          Corbett disputes the trial court's factual findings regarding these

conclusions.

          The juvenile court found that:

          2.7    The social worker made efforts to find services that would be
          available for the father at his correctional facility; however, none
          were available. Due to the father's long-term incarceration and no
          services being available for him at Coyote Ridge Corrections
          Center, all of his court ordered services were stricken on March 12,
          2015.

          2.8     Previously ordered services for substance abuse addiction
          are not available where Mr. Corbett is incarcerated until
          approximately the last year of his incarceration.

          2.9 Previously ordered services of treatment/counseling for
          perpetrators of domestic violence are not available where Mr.
          Corbett is incarcerated.

          2.10 It may be possible for a psychological evaluatorto come to
          where Mr. Corbett is incarcerated and conduct an evaluation of
          him, but it would not and cannot include a parenting component as
          Mr. Corbett has two No Contact Orders in place between him and
          [J.N.]. It is also unknown how ongoing treatment of Mr. Corbett
          would take place if any were recommended.

CP at 310-11.




        4Although labeled as findings of fact, these are actually conclusions of law. We review a
conclusion of law erroneously labeled as a finding of fact as a conclusion of law; we review a trial
court's conclusion of law de novo. Willenerv. Sweeting. 107 Wn.2d 388, 394, 730 P.2d 45
(1986).
No. 74460-7-1/9


       There is ample evidence in the record showing that the required

substance abuse and domestic violence treatment programs were either simply

not available or that Corbett would only be eligible to participate on a date closer

to his release. The record also supports a finding that an outside psychological

evaluation would not be sufficient without a parenting component, and because

of the existence of at least one no contact order, the parenting component would

be impossible to attain.

       Even if appropriate services had been available, DSHS argues that

providing them to Corbett would have been futile under the circumstances.

Where the record establishes that the offer of services would be futile, the trial

court can make a finding that DSHS has offered all reasonable services. In re

Welfare of M.R.H., 145 Wn. App. 10,25, 188 P.3d 510 (2008). Even when DSHS

"inexcusably fails" to offer or provide necessary services, "termination is

appropriate if the service would not have remedied the parent's deficiencies in

the foreseeable future. . . ." In re Dependencv of T.R., 108 Wn. App. 149, 164, 29

P.3d 1275 (2001j; see also In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664

P.2d 1245 (1983). The term "'foreseeable future" must be considered from the

child's point of view.'" Hall, 99 Wn.2d at 851.

       Here, the provision of services would not have remedied Corbett's

parental deficiencies in the near future. Corbett is currently serving a sentence of
over twelve years, with an earned release date of January 19, 2023. At the time

of the termination order, J.N. was 2 1/2 years old. While the lifetime no contact

order has been stricken, the juvenile court's order still prohibits Corbett from
No. 74460-7-1/10


contacting J.N. until the dependency has been dismissed. While neither criminal

conduct nor imprisonment alone will justify termination of the parent-child

relationship, a court must consider a parent's inability to perform his parental

obligations, because of imprisonment, the nature of the crime committed, the
person against whom the criminal act was perpetrated, and the parent's conduct
prior to imprisonment and during the period of incarceration. In re Pawling, 101
Wn.2d 392, 398-99, 679 P.2d 916 (1984).

        It is undisputed that J.N. was a victim of Corbett's assault and Corbett
does not challenge the juvenile court's finding that he "is a serial perpetrator of
domestic violence" and "showed no appreciation for his past violent actions and

lacked any insight that he might benefit from treatment." CP at 327. On this
record, we cannot say that the juvenile court erred when it found that the
provision of services and Corbett's full participation would have still been "unable
to correct his parental deficiencies in the near future."5 CP at 327.
        Corbett next argues that the trial court erred by failing to apply a 2013
amendment to the dependency statutes that requires trial courts to make certain
considerations before terminating the rights ofa parent who "is incarcerated."


        5 Corbett also disputes the court's conclusions that continuation of his relationship with
J N "clearly diminishes ... [J.N.'s] prospects for early integration into a stable and permanent
home" that he is "unfit to parent [J.N.]," and that termination of the relationship is in J.N.'s best
 interests. CP at 328, Findings 2.17, 2.22, and 2.23. He contends that the conclusions were
 premature due to DSHS's failure to provide him with the necessary services. The claim is without
 merit There is ample evidence in the record from which the court could conclude that J.N. could
 not be returned to Corbett within the nearfuture and that termination was necessary to insure
 jN's integration into a stable and permanent home, including the unchallenged findings that
 Corbett has not been part of J.N.'s life since February, 2014, that the juvenile court imposed a no
 contact order against him for the duration of the dependency, and that he is a "serial perpetrator
 of domestic violence." CP at 325-327.



                                                   10
No. 74460-7-1/11


LAWS OF 2013, ch. 173, § 3(4)(b). Under RCW 13.34.180(1)(f), when filing a

petition to terminate parental rights,

       [i]f 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) 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.

Corbett contends that the State failed to prove that it made reasonable efforts to

provide him with all available services during his incarceration and thus failed to
satisfy the prerequisite to termination set forth in RCW 13.34.180(1)(f). Corbett

cites A.M.M., 182 Wn. App. 776, to support his argument that the State did not

prove the factors set forth in RCW 13.34.180(1). According to him, DSHS fell
short of making "reasonable efforts," because it should have gone to greater

lengths to determine what services were necessary and to provide them. RCW
13.34.180(1 )(f).

        Recently the Supreme Court decided In Matter of Dependency of D.L.B.,
376 P.3d 1099 (2016), in which it found that DSHS had made reasonable efforts
to offer services to the parent while incarcerated.6 In that case the social worker

testified




           6The issues in D.L.B. involved RCW 13.34.180(1 )(d) (termination) and RCW
13.34.136(2)(b)(i)(A), which requires that a permanency plan "where possible, must include
treatment that reflects the resources available at the facility where the parent is confined." The
Supreme Court analyzed the record and found that DSHS fulfilled the standards for both statute,
having "made reasonable efforts to refer her to the necessary services available in jail." 376 P.3d
at 1109.




                                                 11
No. 74460-7-1/12


      that she contacted the jail to inquire about services for Saint-Louis
      and learned that the only required service available was one-on-
      one mental health counseling. ... [the social worker's] testimony on
      this issue was undisputed. Indeed, it was corroborated by Saint-
      Louis's testimony that the only people she knew in the jail's
      chemical dependency program were referred there by drug court.

InreD.LB., 376 P.3d at 1109.

       Here, social workers made at least five attempts to reach DOC to inquire

about services available at the two different facilities where Corbett was

contained. The record shows that the Department made reasonable efforts to

provide and offer all necessary services that were reasonably available to

Corbett during his incarceration.

       Corbett makes a number of collateral arguments against the finding that

all necessary services had been offered or provided. He argues that DSHS

misunderstood its obligations, citing testimony that suggested that it was

Corbett's responsibility to contact DSHS within 72 hours of his release and

request services. These statements, however, referred to provisions in the

agreed order of dependency, which was entered before Corbett was sentenced..
At that point it was not clear how long Corbett's sentence would be; the order

reflected the intent of the court at that time, not the intent of DSHS.

       Next, Corbett argues that DSHS further failed to provide all necessary

services reasonably available because it only inquired about the services

specifically listed in the dispositional order. According to him, DSHS made the
assumption that only the services listed in the order were required to be offered,
and it used this assumption to conclude that no services were available.



                                          12
No. 74460-7-1/13


       Corbett argues that services were available "in abundance," even ifthey

did not "identically match the disposition order." Brief of Appellant at 17. Corbett

points to evidence in the record that classes such as parenting, AA, NA, the

Redemption Program, anger management, were available at the facility, and that

he participated in some of the available programs. He also cites to testimony that

outside evaluators and treatment providers were permitted to come to the facility

and work with inmates, and that he made repeated requests for a mental health

evaluation. However, even accepting the truth of these assertions however, does

not undermine the trial court's conclusions because they are supported by

findings of fact, which in turn, are supported by substantial evidence. The

existence of other evidence that may have supported other findings of fact is

irrelevant to our inquiry. In re Welfare of A.G., 155 Wn. App. 578, 588, 229 P.3d

935 (2010).

       Corbett also argues that DSHS ignored its statutory duty because it

moved to strike the ordered services a mere seven months after the order had

been entered. He contends that parents are given a twelve month period during

which they must begin to substantially improve their deficiencies. He cites to

RCW 13.34.180(1 )(e), which establishes a rebuttable presumption, not a grace

period. Under the statute, "[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. . . ." But since DSHS did not rely on the presumption to

establish that there was little likelihood that conditions would be remedied, it has



                                          13
No. 74460-7-1/14


no application here.

      Affirmed.




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WE CONCUR:



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                       14
