                                                                      FILED 

                                                                   JUNE 11,2015 

                                                            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 re the Welfare of:                          )        No. 32490-7-111
                                               )
                                               )
                                               )         PUBLISHED OPINION
KJ.B.                                          )
                                               )
                                               )

        LAWRENCE-BERREY, 1. ­ The trial court tenninated J.B.'s parental rights to his

daughter, KJ.B. J.B. appeals, contending that the trial court erred in (1) finding that the

Department of Social and Health Sciences (Department) satisfied the notice requirements

of the Indian Child Welfare Act of 1978 (lCWA), 25 U.S.C. §§ 1901-1963; (2) finding

that all necessary services were expressly and understandably offered or provided;

(3) failing to consider the amended language ofRCW 13.34. 180(1)(f) applicable to an

incarcerated parent; and (4) finding that it was in KJ.B.'s best interests to tenninate J.B.'s

parental rights. We agree with J.B.'s third contention, but detennine that the error was

harmless, and we disagree with his other contentions. We therefore affinn.
No. 32490-7-1I1
In re Welfare ofK.JB.


                                         FACTS

       The Department received a referral for KJ.B. on April 20, 2012, the day she was

born. The referral was based on the mother testing positive for methamphetamine one

month prior to her daughter's birth. Because of the mother's methamphetamine and

cigarette use, K.J.B. has asthma and reactive airway disease. She is required to use a

nebulizer almost every day. Her condition requires that her caregiver be vigilant

concerning the odors and environment to which she is exposed. Her caregiver must

immediately take action ifKJ.B. shows any signs of breathing difficulties.

      The Department filed a dependency petition for KJ.B. on April 24, 2012. By

court order, the Department originally placed KJ.B. with a relative but soon after moved

her to foster care placement. On October 22, 2012, the court held a dispositional hearing

and entered an order of dependency. The order reaffirmed KJ.B.'s placement in foster

care. The order also required J.B. to complete the following services and to follow

provider recommendations: drug and alcohol evaluation and treatment, random urinalysis

(UA) testing, and parenting assessment and instruction.

      Drug and alcohol evaluation and treatment. J.B. completed a drug and alcohol

evaluation on May 6, 2013. The evaluation revealed methamphetamine dependence and

nicotine dependence, and the recommendation was intensive inpatient treatment. lB. was


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No. 32490-7-III
In re Welfare ofK.J.B.


scheduled to enter inpatient treatment on May 20, 2013, but he did not do so. In June

2013, he started intensive outpatient treatment. J.B. participated in the outpatient

treatment program in July and August 2013 but then left the program due to a relapse. On

September 12, 2013, he entered an intensive inpatient treatment program but left the

program without completing it on September 21,2013. lB. stated he left the intensive

drug treatment program because he was "uncomfortable with the fact that [he] was ...

getting sober ... and ... dealing with [his] issues ... instead of us[ing] drugs to mask

them," which he was not ready to do at that time. Report of Proceedings (RP) at 13.

       On December 18,2013, J.B. went to detox and planned to begin inpatient

treatment after finishing detox. He only stayed at detox for four days and did not go to

inpatient treatment. He made no other attempts to obtain drug addiction treatment before

he was incarcerated on January 24,2014.

      Random UA testing. IB. was ordered to provide random VA tests five times per

month beginning in January 2013. lB. provided six random VAs during this time: one

per month in February, March, May, and August, and two in April. Four of these tests

were negative, while two were positive.

      Parenting assessment. J.B. completed a parenting assessment and participated in

parenting instruction with parent educator Esteban Cabrera in July and August 2013. In a


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No. 32490-7-II1
In re Welfare ofK.J.B.


report dated September 9,2013, Mr. Cabrera recommended that J.B. complete inpatient

substance abuse treatment, individual and couple's counseling once he completed the

inpatient treatment, and consistent visitation with KJ.B. Because Mr. Cabrera

recommended completion of substance abuse treatment first, the Department did not

make referrals for counseling services at that time.

          Social worker Sonny Laform, who was assigned to the case in October 2013,

referred J.B. to Catholic Family and Child Services for individual and family counseling

on December 18,2013. This referral coincided with J.B.'s entry into detox and plan to go

to inpatient treatment thereafter. J.B. did not complete the referral for counseling.

          Parental visits. J.B. participated in visits with KJ.B. in January 2013 and

regularly from March 2013 to January 2014, missing only a few visits within that time

period.

       Incarceration. On January 24,2014, J.B. was found guilty of first degree unlawful

possession of a firearm and possession of a stolen firearm. He was sentenced to 74

months of incarceration. He was incarcerated at the time of the March 2014 termination

trial. While incarcerated, J.B. never sought contact with KJ.B. nor contacted Mr. Laform

to ask about KJ.B.




                                               4

No. 32490-7-111
In re Welfare ofKJB.


       ICWA notices. KJ.B. 's mother indicated she is Native American and identified

herself as having Cherokee, Hopi, and Cree ancestry. J.B. submitted a declaration stating

he has Blackfoot ancestry through his father, and he gave his father's name and date of

birth. His declaration also stated that his great, great grandmother was full-blooded Cree,

but he did not know her name or date of birth. The Department prepared a Family

Ancestry Chart. The chart failed to identify J.B. or his father as having Blackfoot

ancestry. The Department submitted notice of the pendency of parental termination

proceedings to various Cherokee, Cree, and Hopi tribes. No notice was sent to the

Blackfoot tribe. Accompanying each notice was the before-described Family Ancestry

Chart. For each notice sent to an individual tribe, the Department provided a copy to the

Bureau ofIndian Affairs (BIA). The Department did not receive any response from the

various tribes or the BIA.

       The Department filed a termination petition on May 8, 2013. The case proceeded

to a termination trial on March 17-18, 2014. One month prior to trial, KJ.B.' smother

consented to an order terminating her parental rights to her daughter. At the time of trial,

KJ.B. had been in a safe and stable foster care home for 22 months, and had an

opportunity for adoption into a permanent family with her foster parents.




                                             5

No. 32490-7-II1
In re Welfare ofKJB.


       J.B. testified at trial that he was not going to be available to KJ.B. in the near

future due to his incarceration. He estimated his early release date from prison was just

under four years from the time of trial. J.B. acknowledged that he still needs drug

treatment and stated that he is now ready to get treatment. He stated that no parent should

be under the influence of drugs while raising a child and that using drugs has an impact

on the ability of a parent to provide a stable and permanent home for a child. He also

testified that he tried to keep in contact with the Department as much as possible

throughout the dependency, while working two jobs and battling his drug addiction.

       Cristy Benge, who conducted 1.8. 's original drug and alcohol evaluation, testified

that J.B. is still in need of substance abuse treatment.

       Social worker Marcinna Heine-Rath, assigned to the case from February 2013 to

October 2013, testified that prior to leaving intensive inpatient treatment in September

2013, J.B. "seemed motivated to do what was in the best interest for his daughter" and

"[h]ad been making [the] most of his visits." RP at 75. She testified that after leaving

treatment, J.B. reported that he had been going to Alcoholics Anonymous meetings and

connecting with his sponsor.

       Ms. Heine-Rath observed several visits between J.B., KJ.B, and KJ.B.'s mother,

and one visit between J.B. and KJ.B. only. She testified the visits went well, with the


                                               6

No. 32490-7-III
In re Welfare ofK.JB.


parents playing with K.J.B. and interacting with her. Ms. Heine-Rath testified she felt

K.lB.'s mother was a trigger for J.B. and his sobriety. At the time of trial, J.B. was still

in a relationship with K.J.B.'s mother.

       When asked why she did not make a referral for J.B. to do individual counseling

after receiving Mr. Cabrera's report, Ms. Heine-Rath testified, "The recommendation was

for [J.B.] to complete [counseling] after he successfully completed his inpatient

treatment." RP at 103. She stated that if lB. had completed inpatient treatment, she

would have made a recommendation for individual or couple's counseling.

       Finally, Ms. Heine-Rath testified she believes continuation of the parent-child

relationship diminishes K.J.B. 's prospects for early integration into a stable and

permanent home because K.J.B. needs the security of a permanent home. She also stated

that termination of lB.'s parental rights is in K.J.B.'s best interest so that K.J.B. can

move on and be a legal part of her foster family.

       Mr. Cabrera also testified at trial, stating J.B.'s parenting questionnaire showed he

"has some common sense as far as what parenting is and what you should do." RP at

124. Mr. Cabrera observed one visit between both parents and K.J.B. and testified lB.

was nurturing and loving toward KJ.B., showing compassion and sensitivity toward her.

However, he described the bond between them as "[d]istant." RP at 138. J.B.'s



                                              7

No. 32490-7-III
In re Welfare ofK.J.B.


interaction with KJ.B. was minimal, standing back and allowing the mother to parent

KJ.B., because he did not want to "further stress" the child. RP at 137.

       Mr. Cabrera also testified that "in talking with [J.B.] and identifYing stresses in his

life, it turned more [into] an individual counseling session than it did into a parenting

instruction." RP at 122. He stated J.B.'s health questionnaire indicated some stress in his

life, including substance abuse and his relationship with KJ.B.'s mother. Mr. Cabrera

also stated J.B. 's relationship with KJ.B. 's mother was one of the triggers in his life. He

described J.R' s family history as "[v]ery harsh, very physical, had a lot of abuse, parents

weren't very instructive, wasn't raised in a structured home, parents didn't provide him

with any boundaries or limits." RP at 123.

       As to his recommendation for couple's counseling, Mr. Cabrera testified he did not

specifY an exact time for J.B. to start but that he "encouraged him to start as soon as

possible." RP at 139. He stated there may be some benefit for a person starting couple's

counseling while actively using methamphetamine, but that it would not be as effective.

       Finally, Mr. Cabrera testified that generally speaking, it is normal for substance

abuse and mental health issues to occur simultaneously, and that a mental health issue can

sometimes be a precipitating event to substance abuse. Additionally, he stated it is not

uncommon for people with mental health issues to self-medicate by using street drugs.



                                              8

No. 32490-7-II1
In re Welfare ofK.J.B.


       Mr. Lafonn testified that he made the referral for individual and family counseling

so that those services would be available to lB. after he completed his inpatient substance

abuse treatment. He also testified that his referral for counseling services asked the

service provider to do a mental health intake or assessment so "the practitioner could

properly diagnose if he had any sort of mental health diagnosis that might be affecting his

behaviors or leading him to using drugs and alcohol." RP at 199. He testified this

request was made because he believed "it was important that if in fact there was a co­

occurring issue that we could address it." RP at 199. However, he believed J.B. should

take substantial steps in his substance abuse treatment prior to the mental health intake

being conducted. A mental health assessment was never court ordered, and Mr. Lafonn

had no reason to believe the father had a mental health issue or co-occurring disorder.

       Mr. Lafonn testified that overall lB. had a "semi-engagement" in his court-

ordered services because he had not followed through with his chemical dependency

treatment. RP at 184. He also stated lB. was "wonderful" in maintaining contact with

the Department, but that lB. has not contacted him since his incarceration in January

2014. RP at 184-85. However, Mr. Lafonn admitted he does not accept collect calls, he

did not provide J.B. with preaddressed stamped envelopes so he could communicate with

him, and he assumed J.B. had his address available to him while incarcerated.



                                             9

No. 32490-7-111
In re Welfare ojK.JB.


       Mr. Lafonn testified that he believed continuation of the parent-child relationship

diminishes K.1.B.'s prospects for early integration into a stable and pennanent home

because it would be a disruption to K.1.B.'s integration into her current foster family.

Additionally, he stated that tennination of J.B. 's parental rights is in K.1.R 's best

interests so that she can stay in her current home, be adopted by her current foster family,

and move forward in her life.

       Guardian ad litem Mischa Theall testified that tennination of J.B.'s parental rights

was in K.J.B.'s best interests based on her need for pennanency. Ms. Theall did not

observe J.B. and K.J.B. together.

       At the close of trial, the trial court entered an oral ruling and also written findings

of fact and conclusions of law tenninating J .B.' s parental rights. In ordering tennination,

the court found that the Department offered J .B. all necessary services. The court also

found that all elements ofRCW 13.34.180 had been established by clear, cogent, and

convincing evidence. Finally, the court found that lB. was unfit to parent and that

tennination was in K.1.B.'s best interests. In making these findings, the court noted that

there was no evidence of J.B. having a mental health issue requiring a mental health

assessment or counseling, and even if there was a potential mental health issue, experts

agreed lB.'s drug addiction needed to be addressed first. The court also noted that lB.'s



                                              10 

No. 32490-7-III
In re Welfare ofKJB.


incarceration will make him unavailable for an extended period of time to engage in

services or to parent KJ.B.

       lB. appeals.

                                        ANALYSIS

       Where the trial court has weighed the evidence, appellate review is limited to

determining whether the court's findings of fact are supported by substantial evidence and

whether those findings support the court's conclusions oflaw. In re Dependency ofP.D.,

58 Wn. App. 18,25, 792 P.2d 159 (1990). "Evidence is substantial if it is sufficient to

persuade a fair-minded person of the truth of the declared premise." In re Welfare ofSJ,

162 Wn. App. 873, 881,256 P.3d 470 (2011). When deciding whether substantial

evidence supports the findings of fact, the appellate court must consider'" the degree of

proof required.'" In re Dependency ofA.MM, 182 Wn. App. 776, 785-86, 332 P.3d 500

(2014) (quoting P.D., 58 Wn. App. at 25). For termination proceedings, the burden is

"clear, cogent, and convincing evidence." A.MM, 182 Wn. App. at 784-85. Thus, "the

question on appeal is whether there is substantial evidence to support the findings in light

ofthe highly probable test." P.D., 58 Wn. App. at 25. Unchallenged findings are verities

on appeal. In re Mahaney, 146 Wn.2d 878, 895,51 P.3d 776 (2002). Finally, the trial




                                             11 

No. 32490-7-II1
In re Welfare 0/ K.JB.


court's credibility determinations receive deference on appeal from an order terminating

parental rights. A.MM, 182 Wn. App. at 786.

1.     Whether the Department satisfied the ICWA notice requirements

       lB. contends that the trial court erred in finding that the Department complied

with the notice requirements of the ICWA. He argues the Department should have

notified the Blackfoot tribe of the termination proceedings. He also argues that the

Department's failure to comply with ICWA's notice requirements resulted in the trial

court lacking jurisdiction to hear the termination proceeding.

       The ICWA grants tribes the right to intervene in state court custody proceedings

involving an "Indian child." 25 U.S.C. § 1911(c); see also RCW 13.38.090. The statute

defines "Indian child" as "any unmarried person who is under age eighteen and is either

(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is

the biological child ofa member of an Indian tribe." 25 U.S.C. § 1903(4); see also

RCW 13.38.040(7). The Department must notifY "the Indian child's tribe" or the BIAI of



       1 The BIA must be notified if a tribe's identity or location cannot be determined.
25 U.S.C. § 1912(a). "Under the interpretive regulations, notice of the termination
proceeding shall be sent to the appropriate BIA Area Director under the Secretary of the
Interior." In re Welfare o/MS.S., 86 Wn. App. 127, 136,936 P.2d 36 (1997) (citing 25
C.F.R. § 23.11(b)). More specifically, for proceedings in Washington State, "the
regulations require that notice be sent to the Portland, Oregon BIA office." Id. (citing 25
C.F.R. § 23.11(c)(11)).

                                             12 

No. 32490-7-111
In re Welfare ofK.J.B.


such pending proceedings and the tribe's right to intervene "where the court knows or has

reason to know that an Indian child is involved."

25 U.S.C. § 1912(a); see also RCW 13.38.070(1). However, only federally recognized

tribes 2 are entitled to § 1912(a) notice. In re Welfare ofL.N.B.-L., 157 Wn. App. 215,

239,237 P.3d 944 (2010). "The State has the burden of proving that the notices sent

complied with the ICWA." In re Dependency ofE.s., 92 Wn. App. 762, 771, 964 P.2d

404 (1998).

      Here, the parties agree that there was reason to know KJ.B. could be an Indian

child. On February 12,2014, lB. submitted a declaration stating he has Blackfoot and

Cree ancestry. KJ.B.'s mother also indicated she is Native American. The Department

submitted notice of termination proceedings to several Cherokee, Cree, and Hopi Indian

tribes, and provided copies of these notices to the BIA as well. The Department did not

receIve any responses.




      2 The ICWA defines "Indian tribe" as "any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible for services provided to
Indians by the Secretary because of their status as Indians." 25 U.S.C. § 1903(8)
(emphasis added). A list of "Indian Entities Recognized and Eligible To Receive
Services From the United States Bureau ofIndian Affairs" is published yearly in the
Federal Register. See Indian Entities Recognized and Eligible To Receive Services From
the United States Bureau ofIndian Affairs, 80 Fed. Reg. 1942-48 (Jan. 14,2015).

                                            13
No. 32490-7-III
In re Welfare ofK.JB.


       The parties disagree as to whether the Department was required to notify the

Blackfoot tribe of the proceedings. The Department contends it did not notify the

Blackfoot tribe because the Blackfoot tribe is not federally recognized3 and is "different

and distinguishable" from the Blackfeet tribe, which is federally recognized. Response to

Motion for Accelerated Review at 19.

       This court's other two divisions have decided cases with similar issues where a

party claimed Blackfoot ancestry and the Department did not notify the Blackfoot tribe.

In Division Two's decision, Welfare ofL.N.B.-L., the court determined the record

contained insufficient evidence "to demonstrate that the 'Black Foot out of the Algonquin

Nation' refers to the federally-recognized Blackfeet Tribe of the Blackfeet Indian

Reservation of Montana." 157 Wn. App. at 238 n.20. Because the Department failed to

notify the Cherokee and "Black Foot" tribes, the court remanded for proper notice to

both. Id. at 238. However, because the identity of the "Black Foot" tribe was not clear

from the record, the court stated the Department "should, on remand, notify the Portland

area director of the [BIA] of the termination orders." Id. at 238 n.20.

       In Division One's decision, In re Dependency ofJA.F, the court determined the

record was sufficient where the Department provided general notice to the BIA that the



      3   The Federal Register only lists the Blackfeet Tribe of the Blackfeet Indian

                                             14 

No. 32490-7-111
In re Welfare ofK.J.B.


action possibly involved "Indian children" without listing any affiliation with a particular

tribe, and the BIA responded, '" The child was determined to be non-Indian by Superior

Court: therefore the Indian Child Welfare Act of 1978 does not apply. Do not send future

notices.'" 168 Wn. App. 653, 664-65, 278 P.3d 673 (2012) (emphasis in original). The

Department received this response from the BIA prior to trial. Then, on the first day of

trial, the children's mother testified that she possibly had "Barefoot" tribe ancestry but

later stated it could have been Blackfoot instead. Id. at 665. The Department investigated

the matter by contacting the party's father but did not send any further notices to tribes or

to the BIA based on the mother's testimony. Id. Nonetheless, the court found the

Department's general notice to the BIA sufficient to fulfill its obligation under ICWA.

Id. at 666.

       In this case, J.B. concedes that the Department was required to notifY only

federally recognized tribes. The Department cites Indian Entities Recognized and

Eligible To Receive Services From the United States Bureau of Indian Affairs, 79 Fed.

Reg. 4748-53 (Jan. 29, 2014) to support its assertion that the Blackfeet tribe is federally

recognized but the Blackfoot tribe is not and that the two are distinct tribes. J.B. does not

contest this assertion. Nor do we find any evidence in the record to contest the



Reservation of Montana. Indian Entities Recognized and Eligible, 80 Fed. Reg. at 1943.

                                             15
No. 32490-7-III
In re Welfare ofK.JB.


Department's assertion. Because the record is clear that the Blackfoot tribe is not a

federally recognized tribe and because there is no evidence that J.B. was confused

concerning the two tribes, the Department was not required to notifY either the

unrecognized Blackfoot tribe or the recognized Blackfeet tribe of this proceeding. The

Department therefore complied with the ICWA notice requirements.

2. 	   Whether all necessary services were expressly and understandably offered or
       provided

       When deciding whether to terminate the parental rights of a parent, Washington

courts apply a two-step process. In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d

1104 (2010). "The first step focuses on the adequacy of the parents" and requires the

Department to prove, by clear, cogent, and convincing evidence, the six termination

factors set forth in RCW 13.34.180(1).4 Id. '''Clear, cogent and convincing' means



       4 The six termination factors that the Department must prove in a termination
hearing 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 ofthe
       hearing, have been removed from the custody ofthe 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

                                            16
No. 32490-7-III
In re Welfare ofK.JB.


highly probable.~' In re Welfare   ofMR.H.~   145 Wn. App. 10,24,188 P.3d 510 (2008). If

the Department meets its burden as to the six termination factors, "the trial court must

find by a preponderance of the evidence that termination is in the best interests of the

child." Id. (citing RCW 13.34.190(2)). Only if the first step is satisfied may the court

reach the second step. A.B., 168 Wn.2d at 911.

       J.B. asserts that the Department did not timely offer or provide him with individual

counseling, couple's counseling, and a mental health assessment. To satisfy its statutory

burden under RCW 13.34. 180(l)(d), the Department must offer or provide "all necessary

services, reasonably available, capable of correcting the parental deficiencies within the

foreseeable future." A service is "necessary" if it is needed to address a condition that



      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.

              (0 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.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.
RCW 13.34.180(1).

                                              17
No. 32490-7-III
In re Welfare ofK.JB.


precludes reunification of the parent and child. In re Welfare ofes., 168 Wn.2d 51, 56

nJ, 225 P.3d 953 (2010). The Department must tailor the services offered to the

individual's needs. In re Dependency ofTR., 108 Wn. App. 149, 161,29 P.3d 1275

(2001). However, because RCW 13 .34.180(1)(d) limits the services required to those

capable of remedying parental deficiencies in the "foreseeable future," the trial court can

find that the Department offered all reasonable services "[w]here the record establishes

that the offer of [other] services would be futile." MR.H, 145 Wn. App. at 25.

       J.B. contends that the Department's three-month delay in referring him to

individual counseling, couple's counseling, and a mental health assessment made the

referrals untimely. He also argues that the delay in providing these services was

inconsistent with parent educator Esteban Cabrera's recommendation. He points to Mr.

Cabrera's testimony that he encouraged lB. to start counseling as soon as possible and

also Mr. Cabrera's recommendation that lB. "continues [sic] to participate in ongoing

individual and couple's therapy to address unresolved issues of trauma related symptoms

(i.e. rejection, guilt, etc.), after his successful completion of inpatient treatment." Ex. 6

(Parenting Assessment Summary for J.B. dated Sept. 9, 2013) (emphasis added).

       lB. 's arguments are not supported by substantial evidence. Social worker

Marcinna Heine-Rath testified that she did not make a referral for counseling services


                                              18 

No. 32490-7-II1
In re Welfare ofKJB.


after receiving Mr. Cabrera's report because she believed Mr. Cabrera's recommendation

was for 1.B. to complete counseling after he successfully completed his inpatient drug

treatment. Mr. Cabrera testified he did not specifY a time for 1.B. to start counseling

services in his written recommendations. And while 1.B. focuses on the "continues"

verbiage of the recommendation, he ignores the clause "after his successful completion of

inpatient treatment" at the end of that same sentence. Thus, the evidence presented at

trial confirms that the Department acted consistent with Mr. Cabrera's recommendations

to wait to make the referrals for counseling.

       After hearing this evidence, the trial court found "[t]he assessment recommended

that the father complete drug/alcohol in-patient treatment, participate in individual and

couples counseling once he completed in-patient treatment." CP at 20 (emphasis added).

"Because the trial court has the opportunity to hear the testimony and observe the

witnesses, its decision is entitled to deference." SJ, 162 Wn. App. at 881.

Consequently, the trial court's credibility determinations receive deference on appeal

from an order terminating parental rights. A.MM, 182 Wn. App. at 786. Substantial

evidence supports the trial court's finding as to the timing of the referral for counseling

services.




                                                19 

No. 32490-7-II1
In re Welfare ofKJ.B.


       J.B. also contends that the counseling and mental health assessment were

necessary services for correcting his identified parenting deficiency of substance abuse

and thus should have been offered concurrently with his substance abuse treatment. J.B.

argues the evidence demonstrated he has trauma-related health issues that are co­

occurring with his substance abuse.

       For his assertion that he has mental health issues co-occurring with his substance

abuse, lB. references testimony by Mr. Cabrera and social worker Sonny Laform that

mental health issues can lead to substance abuse and that they can be co-occurring issues.

He also cites Mr. Cabrera's testimony that it is not uncommon for people with mental

health issues to self-medicate by using street drugs. However, the record indicates both

witnesses were testifYing generally about co-occurring mental health issues and drug use,

rather than specifically as to lB.

       lB. also relies on S.1., 162 Wn. App. 873. There, the trial court's dispositional

order required the mother to complete, among other services, substance abuse evaluation

and treatment and mental health services. Id. at 876. The Department knew that the

mother suffered from mental illness and substance abuse issues but failed to adequately

provide integrated mental health and·drug treatment services. Id. at 881-82. The S.J.

court noted the legislative finding that co-occurring mental health and drug dependency



                                            20 

No. 32490-7-II1
In re Welfare ofKJ.B.


issues are best resolved when treatment of both issues is integrated. Id. at 882. Based on

this finding, the s.J. court held that the Department failed to tailor the services to the

parent's needs. Id.

       s.J. is distinguishable from this case. J.B.'s court-ordered services were drug and

alcohol evaluation and treatment, random UA testing, and parenting assessment and

instruction. A mental health assessment and mental health counseling were never

ordered. Additionally, none of the social workers involved in the case testified that J.B.

had a mental health issue that required evaluation or services.

       Mr. Cabrera testified that during his sessions with J.B., J.B. indicated he had a

difficult childhood and also identified several stressors in his life, including his substance

abuse and his relationship with K.1.B.'s mother. However, Mr. Cabrera did not

recommend a mental health evaluation or mental health services. He only recommended

counseling. Mr. Laform was the only person to recommend a mental health assessment.

He testified that his December 18, 2013 referral for counseling services asked the service

provider to do a mental health intake or assessment so "the practitioner could properly

diagnose if he had any sort of mental health diagnosis that might be affecting his

behaviors or leading him to using drugs and alcohol." RP at 199. But Mr. Laform also

stated he had no reason to believe that J.B. had a mental health issue or co-occurring



                                              21 

No. 32490· 7·III
In re Welfare ofK.JB.


disorder. Thus, the trial court's finding that there was no evidence of J.B. having a mental

health issue requiring a mental health assessment or treatment was supported by

substantial evidence.

       J.B. next argues that had the Department made referrals for counseling services

earlier, the services would not have been futile. The record contradicts this argument.

Mr. Laform testified he believed J.B. should take substantial steps in his substance abuse

treatment prior to the mental health intake being conducted. He also testified that overall

lB. had a "semi·engagement" in his court· ordered services because he had not followed

through with his chemical dependency treatment. RP at 184.

       Relatedly, the trial court entered findings that:

              1.20 The father has not been able to demonstrate sobriety for any
      significant period of time, despite being provide [sic] ample time and
      opportunity to do so. He has engaged in criminal activity due to his
      addiction. He described how his drug addiction impacted ... him and his
      family and made him unavailable to parent. . .. He has attempted treatment
      multiple times and has failed.
              1.21 ... The father has a substance abuse addiction and continues
      to struggle with sobriety. He has not been able to complete treatment and
      continues to relapse. Although he indicates he is ready for treatment at this
      time, he will be incarcerated for up to 74 months and will not be able to
      complete services in the near future. He still needs to complete treatment
      and demonstrate his ability to maintain sobriety once he is released from
      incarceration. The near future for the child is a few months, not years. The
      father's needs far exceed the near future timeframe for the child.




                                              22
No. 32490-7-II1
In re Welfare ofK.J.B.


CP at 21. The trial court ultimately found that all necessary services reasonably available

had been offered, and that   ~~[t]here   is little likelihood that conditions will be remedied so

that the child can be returned to her father in the near future." CP at 21.

       J.B. does not challenge these findings of fact, and the court's unchallenged

findings are verities on appeal. Mahaney, 146 Wn.2d at 895. Additionally, these findings

are supported by substantial evidence, and they support the conclusion that this

termination factor was satisfied. J.B. admitted at trial that he was not going to be

available to KJ.B. in the near future due to his incarceration. He estimated his early

release date from prison was just under four years from the time of trial. He

acknowledged that he still needs drug treatment and stated that he is now ready to get

treatment.

       Thus, the record establishes that the offer of counseling services or a mental health

assessment any earlier in the dependency would have been futile because of his continued

drug use. The trial court's finding that the services ordered under RCW 13.34.136 had

been expressly and understandably offered or provided and all necessary services,

reasonably available, capable of correcting the parental deficiencies within the

foreseeable future had been expressly and understandably offered or provided is

supported by substantial evidence.



                                                  23 

No. 32490-7-II1
In re Welfare ofK.J.B.


3. 	   Whether continuation ofthe parent-child relationship diminished K.J.B. 's
       prospects for early integration into a stable and permanent home

       lB. contends that the Department failed to prove all the necessary elements to

show that continuation of his relationship with KJ.B. clearly diminishes her prospects for

early integration into a stable and permanent home. Specifically, he argues that the trial

court failed to consider the 2013 amendment to RCW 13 .34.180( 1)( t) regarding

incarcerated parents.

       The 2013 amendment at issue in this case is emphasized here:

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

RCW 13.34.180(1)(t) (emphasis added). This new language references

RCW 13 .34.145( 5)(b), which provides a nonexhaustive list of six factors the court may

also consider as part of its "meaningful role" assessment. These factors include:

               (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;



                                            24
No. 32490-7-III
In re Welfare ofK.J.B.


                (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.

RCW 13.34.l45(5)(b).

       The statute's legislative history suggests the purposes of the 2013 amendment are

to assure that a parent's incarceration should no longer tip the balance toward termination,

and to require courts to make individualized determinations when deciding whether an

incarcerated person's parental rights should be terminated. SUBSTITUTE H.B. 1284, 63d

Leg., Reg. Sess. (Wash. 2013).

       In support of his argument that the trial court erred, J.B. relies on A.MM In

A.MM, Division One of this court reversed a termination order because there was no

evidence in the record that the trial court considered the 2013 amendment to



                                             25
No. 32490-7-II1
In re Welfare ofK.J.B.


RCW 13.34.180(1)(f). A.MM, 182 Wn. App. at 786-87. There, the father was

incarcerated for all but a month and one-half of the dependency. Id. at 780.

       The Department attempts to distinguish A.MM by arguing that here the

incarcerated parent was incarcerated for only 51 days at the end of the entire dependency.

The Department's argument would be persuasive but for the mandatory language

contairied in the amended statute. RCW 13.34.180( 1)(f) provides that "[ i]fthe parent is

incarcerated, the court shall consider" three factors. (Emphasis added.) The first is

whether the parent "maintains a meaningful role in his or her child's life," the second is

whether the Department made reasonable efforts to remedy the parental deficiencies, and

the third is whether barriers of incarceration interfered with the parent's efforts to

maintain meaningful contact with the child and participate in required assessments,

services, and court proceedings. The amended statute does not contain an exception to

the mandatory language. We therefore will not imply one.

       Nevertheless, a failure to weigh the required considerations will not require

reversal if the State's case is strong or if the factors are not contested. In re

Termination ofMJ. & MJ., Nos. 3232l-8-III, 32322-6-III; 2015 WL 1945057, at

*5 (Wash. Ct. App. Apr. 28, 2015). Here, once incarcerated, J.B. made no effort

to playa meaningful role in his daughter's life. The record also establishes that the


                                              26 

No. 32490-7-II1
In re Welfare ofK.J.B.


Department made reasonable attempts to remedy lBo's parental deficiencies.

Finally, there is no evidence that barriers of incarceration impacted lBo's ability to

maintain meaningful contact with his daughter nor is there evidence that barriers of

incarceration impacted J.B. 's required assessments, services, or his ability to

participate in court proceedings. Therefore, unlike A.MM, we conclude that the

trial court's failure to weigh the required considerations was harmless error, which

does not require reversal.

4.     Whether it was in K.J.B. 's best interests to terminate J.B. 's parental rights

       lB. argues that the trial court erred when determining it was in his daughter's best

interests to terminate his parental rights. He argues that the trial court erred in

determining this second step without first requiring the Department to establish the six

elements of the first step.

       The best interests analysis is the second step in a two-step process for termination

proceedings. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P 3d 1104 (2010). The

court may only reach this second step if the first step-review of the six termination

factors listed above-is satisfied. Id. The court must find by a preponderance of the

evidence that termination is in the child's best interests. MR.R, 145 Wn. App. at 24




                                              27 

No. 32490-7-1II
In re Welfare ofK.JB.


(citing RCW 13.34.190(2)). "[1]t is 'premature' for the trial court to address the second

step before it has resolved the first." A.B., 168 Wn.2d at 925.

       Because we resolved the first step in favor of the Department, and because the

factual record firmly establishes the second step, we affirm the trial court's determination

that it was in the best interests ofKJ.B. to terminate J.B.'s parental rights.




                                           Lawrence-Berrey, J.

WE CONCUR: 





Brown, A.CJ:




Fearing, J.     ~(




                                             28 

