       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of:                         No. 79220-2-1
L.A.L.; D.L.L.; A.D.L.                                      (Consolidated with
                                                            No. 79221-1-1, and
STATE OF WASHINGTON,                                        No. 79222-9-1)
DEPARTMENT OF CHILDREN,
YOUTH AND FAMILIES,                                          DIVISION ONE

                        Respondent,                          UNPUBLISHED OPINION

               V.

ARRION DEMAR LAMB, SR.,

                        Appellant.
                                                             FILED: September 23, 2019

       HAZELRIGG-HERNANDEZ, J. — The juvenile court terminated Arrion D.

Lamb's parental rights to his three children. Substantial evidence supports the

trial court's findings with regard to the statutory factors necessary for termination.

And the father received adequate notice of the parental deficiencies that formed

the basis for the termination. We affirm.

                                            FACTS

       Arrion Lamb is the biological father of three young children.1                    The

Department of Children, Youth, and Families (Department) became involved with

the family in August 2016 when the children were one, four, and six years old. At

that time, the Department received reports that the family was homeless, that


       1 The parental rights of the children's mother are not at issue in this appeal.
No. 79220-2-1/2

both parents were actively using heroin, and that the father recently assaulted

the mother and knocked out two of her front teeth. The Department also learned

that the mother left the children in the care of a third party so she could obtain

drug treatment, but then quickly abandoned treatment.

      The Department took the children into custody and initiated a family team

decision meeting to discuss placement of the children. The father admitted to

recent drug use and to the recent assault. He also acknowledged an earlier

domestic violence incident that led to police involvement. The father denied any

violent behavior toward the children. Both parents signed a voluntary placement

agreement, allowing the children to be placed out of their care for a month so

they could complete chemical dependency assessments, and participate in

urinalysis testing and substance abuse treatment.

      In the month that followed, the Department offered chemical dependency

assessments, urinalysis testing, and provided transportation assistance, but the

father was largely unreachable and unresponsive. By the end of the month, the

father had not participated in any services or visited with the children. The

Department agreed to extend the voluntary placement agreement, based on

stipulations that the father would promptly complete a chemical dependency

assessment and start urinalysis testing.       The father failed to complete an

assessment and his single urinalysis test was positive for opiates and

amphetamines.

       Based   on   the   history of substance abuse, domestic violence,

homelessness, and several pending criminal charges against the father, the



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No. 79220-2-1/3

Department filed a petition for dependency. The Department alleged that the

children witnessed the domestic violence. In January 2017, the court entered an

order finding the children dependent as to the father under RCW 13.34.030(6)(c)

because they "had no parent, guardian, or custodian capable of adequately

caring" for them. The court ordered the father to successfully complete 90 days

of urinalysis testing; to complete a drug and alcohol evaluation and follow any

recommended treatment; to complete a parenting assessment with a domestic

violence component and follow any treatment recommendations; and to establish

the paternity of one of the children.2

       The father did not engage in any services or regularly visit the children in

2016 or in 2017 after the entry of the dependency order.

       In March 2017, just over two months after the court found the children to

be dependent, the father committed robbery in the second degree while armed

with a deadly weapon. In October 2017, he pleaded guilty to the crime, and in

November 2017, the court sentenced him to 15 months of incarceration. The

Department arranged for the children to visit the father at the King County Jail.

But after each child visited the father once, the court suspended all visits,

primarily based upon the recommendations of two of the children's therapists.

       In February 2018, while the father was still incarcerated, the Department

filed a petition to terminate his parental rights.

       A few months later, on June 5, 2018, the father was released from

custody. The Department again provided all court-ordered services to the father


       2 The court also ordered the father to engage in an in-home parenting education service
once the children were returned to his care.


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No. 79220-2-1/4

and encouraged him to participate. Upon his release, the father showed interest

in services and began to participate, but for the most part, was unable to

successfully complete them. For instance, the father met with the evaluator a

few times for the purpose of obtaining a parenting assessment with a domestic

violence component. But then he missed subsequent appointments because he

was in jail, having violated conditions of his community supervision and failed to

complete the assessment.

       And just after his release, the father completed a drug and alcohol

evaluation at Valley Cities.3 The evaluation led to a diagnosis of opiate addiction

and a recommendation for outpatient drug treatment. In the three to four month

period following the evaluation, the father attended approximately five

appointments at Valley Cities. Some of those appointments were for mental

health treatment, based on diagnoses of paranoid schizophrenia and depression.

During a recess in the trial, the father enrolled in a medication-assisted

substance abuse program and took his first dose of medication. Although the

father participated in some urinalysis testing required by the Department of

Corrections (DOC), he did not complete any urinalysis testing ordered by the

dependency court, nor did he provide the DOC testing results to the Department.

       The Department initiated a process to reestablish contact between the

father and the eldest son that began with six scheduled meetings with his son's

counselor.     The father met once with the counselor but missed all of the


        3 The father did not inform the Department about his completion of the assessment until
months later, during the termination trial. The social worker assigned to the case expressed
concern about the validity of the assessment because it did not reflect the father's current
conditions in the community and continued drug use after his release.


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No. 79220-2-1/5

subsequent appointments. The father refused to agree to allow one of his sons

to take medication recommended by the child's physician to treat Attention Deficit

Hyperactivity Disorder, and eventually the Department obtained a court order to

allow administration of the medication. The father also initially refused to consent

to another child's dental surgery unless he could be present, but eventually

relented.

      Approximately a month after his release from prison, the father relapsed.

As a result, he lost his clean and sober housing. The father was sanctioned five

times for violating conditions of community supervision. Three of the violations

were for using heroin and methamphetamine. Based on the number of violations

he had already accrued, the father faced a substantial risk of being returned to

prison to serve the remainder of his prison term if he committed further violations

of his conditions of supervision.

       At the time of the fact-finding hearing in the fall of 2018, the father had

been out of custody for almost four months. His sons were ages eight, six, and

three and had been out of his care for more than two years. The father had not

seen the children in more than a year. Two of the children were in licensed care,

in separate households, and the oldest child had been admitted to Ryther, a

provider of inpatient and outpatient therapeutic services for youth, for

approximately a year. The two older children had been involved in intensive

therapy to address behavioral, emotional, and mental health issues. Apart from

establishing paternity and obtaining a drug and alcohol evaluation, the father had

not completed any of the court-ordered services.



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No. 79220-2-1/6

      The father testified and admitted to recent use of heroin and

methamphetamine use and admitted that he had used those drugs in the past

when the children were in his care.      He did not believe that his drug use

prevented him from providing for the safety and welfare of his children. He

claimed his drug use was a "mistake," largely because it resulted in the

Department's involvement with his family.

      The father testified that one of the reasons the children were in the

Department's custody was because they witnessed an "altercation" between him

and the children's mother, but he disputed the severity of the incident.       He

acknowledged that he had at least one prior assault conviction involving the

mother. Because the father was involved in multiple prior incidents of assault, he

could not recall whether or not the children's mother was the victim of his prior

aggravated assault conviction in Arizona.

      The father testified that his plan to regain custody of his sons was to

obtain permanent employment and housing. Although the father met his oldest

child's counselor, he said he did not learn anything about why his child was

receiving treatment at Ryther.

      A Department social worker who supervised the father's case, Xiao Yu

Jackson, testified that the father was currently unfit to parent his sons and had

made no progress toward correcting his parental deficiencies, which included

drug abuse and domestic violence. She testified that it would take at least a year

of consistent engagement before the Department could consider placement with

the father. Both the Court Appointed Special Advocate and the social worker




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No. 79220-2-1/7

assigned to the case at the time of the fact finding hearing likewise testified that

that the father was not capable of parenting his sons now or in the near future.

       At the conclusion of the fact-finding hearing, after considering the

testimony of 6 witnesses and 28 exhibits, the juvenile court entered findings and

an order terminating the father's parental rights. Specifically, the court found that

the father failed to correct his parental deficiencies related to substance abuse

and domestic violence and that termination of parental rights was in the

children's best interests.

       The father appeals the termination order.

                                  DISCUSSSION

I.     Standard of Review

       Parental rights are a fundamental liberty interest protected by the United

States Constitution. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71

L. Ed. 2d 599 (1982). To terminate parental rights, the Department must satisfy

a two-step test. In re Welfare of A.B., 168 Wn.2d 908, 911,232 P.3d 1104

(2010). In order to terminate a parent-child relationship, the Department must

prove the six elements of RCW 13.34.180(1) by clear, cogent, and convincing

evidence. In re Dependency of K.N.J., 171 Wn.2d 568, 576-577, 257 P.3d 522

(2011). Then, if the juvenile court finds that the Department has met its burden

under RCW 13.34.180, it may terminate parental rights if it also finds by a

preponderance of the evidence that termination is in the "best interests" of the

child. RCW 13.34.190(2)(b); A.B., 168 Wn.2d at 911.




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No. 79220-2-1/8

      Where the trial court has weighed the evidence, our 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 of law. In re

Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial

evidence' is evidence in sufficient quantity to persuade a fair-minded, rational

person of the truth of the declared premise." In re Welfare of T.B., 150 Wn. App.

599, 607, 209 P.3d 497 (2009)(citing World Wide Video, Inc. v. City of Tukwila,

117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the

findings of fact are supported by substantial evidence "must be made in light of

the degree of proof required." P D , 58 Wn. App. at 25. In determining whether

substantial evidence supports the trial court's findings, this court does not weigh

the evidence or the credibility of witnesses. In re Dependency of E.L.F., 117 Wn.

App. 241, 245, 70 P.3d 163(2003).



II.    Offer or Provision of Services

      The father challenges the juvenile court's finding that the Department

offered or provided all necessary services capable of correcting his parental

deficiencies as required by RCW 13.34.180(1)(d). In particular, he claims the

Department did not make reasonable efforts to provide services to him when he

was incarcerated for robbery.

      To meet its burden under RCW 13.34.180(1)(d), the Department must

prove that "the services ordered under RCW 13.34.136 have been expressly and

understandably offered or provided and all necessary services, reasonably




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No. 79220-2-1/9

available, capable of correcting the parental deficiencies within the foreseeable

future have been expressly and understandably offered or provided." Necessary

services are "those services 'needed to address a condition that precludes

reunification of the parent and child." K.M.M., 186 Wn.2d at 480 (quoting In re

Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014)). A service

is "reasonably available" if it is "available within the department [or supervising

agency], or within the community" or "the department has existing contracts to

purchase" it. RCW 13.34.136(2)(b)(vii).       When a parent is incarcerated, the

permanency      planning   statue,   RCW      13.34.136(2)(b)(i)(A),   requires   the

Department to craft a permanency plan that focuses on the provision of services

that are "available at the facility where the parent is confined."

       With respect to this factor, the court found:

       2.14 Services ordered under RCW 13.34.130 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, including Urinalysis (UA)
       testing, a substance abuse evaluation (and recommended
       treatment) and a parenting assessment with a domestic violence
       component.

       2.15 [The Department] has made service referrals to [the father] on
       multiple occasions, including sending him multiple service letters
       detailing where he can participate in the ordered services. In
       October, 2017 [the father] pled guilty to Robbery in the Second
       Degree. He was incarcerated until June 2018 and some, if not all,
       services were not available to him while he was incarcerated.

       The father was incarcerated for approximately 13 months of the

dependency that lasted almost two years. In 2017, when the father was confined

at the King County Jail, Department personnel provided him with multiple service




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No. 79220-2-1/10

letters, outlining the services ordered by the dependency court. These letters

also informed the father that the primary court-ordered services, a drug and

alcohol assessment and treatment, a parenting assessment with a domestic

violence component, and random urinalysis testing, were unavailable at the jail.

The Department informed the father that certain other drug and alcohol-related

programs were available in jail and encouraged him to participate.

        Department supervisor Jackson also visited the father personally at the jail

once in the fall 2017.4           Until visitations were suspended, the Department

arranged for the children to visit the father.

        By October 2017, the Department had identified a provider who was

willing to conduct a parenting assessment with a domestic violence component at

the jail and referred the father for that service. The Department provided the

father with the provider's name and telephone number. Department staff and the

provider herself made multiple attempts over many months to arrange for the

evaluation at each of the facilities where the father was housed. But these

attempts were not successful, largely because the father did not remain at the

same facility. The father moved from the King County Jail to a DOC facility, then

to Snohomish County Jail, and was finally returned to a DOC facility. In addition

to the transfers, the record suggests the Department's efforts to schedule the

evaluation were hampered by difficulty obtaining information from the DOC and

the Snohomish County Jail.




        4 Jackson testified that she directed another social worker who took over the case to visit
the father in jail, but she did not know for certain whether or not that visit occurred.


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No. 79220-2-1/11

        The father cites a lack of evidence that Department staff personally met

with him or sent him any letters regarding services after he was moved from the

King County jail. He further points out that no Department witnesses testified

about the unavailability of services at the Snohomish County Jail or at the DOC

facility.

        The court addressed a similar claim in In the Matter of the Dependency of

D.L.B., and held that the Department made reasonable efforts to provide services

to an incarcerated parent where the Department's social worker contacted the jail

and learned that only one required service was available at the facility where the

parent was in confinement. 186 Wn.2d 103, 122-23, 376 P.3d 1099 (2016). The

Department's efforts were at least as substantial in this case. The record as a

whole shows that while the father was incarcerated, the Department investigated

whether court-ordered services were available, communicated with the father,

and made significant efforts to provide a service that was unavailable to him in

any of the facilities, a parenting assessment with a domestic violence

component. The lack of evidence about the Department's actions with respect to

each facility where the father was confined, does not render its overall efforts

insufficient. This is especially true where the Department was apparently not

notified of each transfer and the facilities were unresponsive to the Department's

requests for information. On this record, we conclude the Department fulfilled its

duty to make reasonable efforts to refer the father to available services.

        The father's argument also ignores the fact that he failed to meaningfully

engage in services when they were undisputedly available to him before and




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No. 79220-2-1/12

after he was incarcerated. The Department is not required to offer services that

would be futile. In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275

(2001). If a parent is unwilling or unable to make use of the services offered or

provided, the Department is not required to offer additional services that might

have been helpful. In re Dependency of S.M.H., 128 Wn. App. 45, 54, 115 P.3d

990 (2005).

       Apart from submitting to one urinalysis test in 2016, which was positive for

amphetamine and opiates, the father did not participate in any service before he

committed robbery and went to jail in 2017. The Department again offered all

court ordered services to the father upon his release in June 2018. In the four

months preceding the trial, the father completed only a drug and alcohol

evaluation.

       The Department made reasonable efforts to provide services throughout

the dependency, including the period of time when the father was incarcerated.

Even if this were not the case, the Department's failure to offer services during

this period   would   be excusable.        Despite referrals for services and

encouragement to participate in them, the father was unable or unwilling to

complete most of the services or and failed to make significant progress.



III.   Likelihood that Conditions Will Be Remedied in the Near Future

       The father also challenges the court's finding that "[t]hat there is little

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

parent in the near future." RCW 13.34.180(1)(e). The focus of this statutory




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No. 79220-2-1/13

factor is on whether the identified parental deficiencies have been corrected.

T.R., 108 Wn. App. at 165. Even where evidence shows that a parent may

eventually be capable of correcting deficiencies, termination is appropriate if

those deficiencies will not be corrected within the foreseeable future. In re

Welfare of A.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010)(citing In re A.W.,

53 Wn. App. 22, 32, 765 P.2d 307 (1988)).

       What constitutes "near future" necessarily depends on the specific

circumstances of each case, including the child's age and placement

circumstances. In re Welfare of C.B., 134 Wn. App. 942, 954, 143 P.3d 846

(2006). A matter of months may be outside the foreseeable future for a young

child. In re Welfare of M.R.H., 145 Wn. App. 10, 28, 188 P.3d 510 (2008). "When

it is eventually possible but not imminent for a parent to be reunited with a child,

the child's present need for stability and permanence is more important and can

justify termination." C.B., 134 Wn. App. at 958-59.

       Here, the court found as follows:

      2.20 There is little likelihood that conditions will be remedied so
      that the children can be returned to their father within the near
      future.



      2.25 The credible estimate is that even in a best case scenario it
      will be at least 12 months of consistent participation in services
      before [the father] would be in a position to possibly parent his
      sons. A best case scenario is unlikely given [the father's] history of
      relapse and inconsistent participation in services.



      2.27 12 months is not the near future to these children and is too
      long to wait for a mere possibility of progress. The near future is


                                           13
No. 79220-2-1/14

      measured in months, not years, for children of these ages. Despite
      [the father's] love for his children and his desire to have a
      relationship with them, this is outweighed by the boys' needs for
      stability and permanence now.



      2.34 The children's father is unfit to parent these children. He has
      not cured his parental deficiencies related to substance abuse and
      domestic violence and will not be able to do so in the near future.

      The father contends there is insufficient evidence in the record to support

these findings, because contrary to the court's findings, he made "huge strides

toward completing his court ordered services" in the four months prior to the

termination hearing. The father points out that he completed a drug and alcohol

evaluation shortly after his release, enrolled in a drug treatment program, and

attended appointments with his oldest son's counselor and a parenting evaluator.

      But the father's characterization of his progress fails to take into account

all of the facts. The father ignores evidence indicating that while he initially

appeared to be motivated to address his parental deficiencies upon his release,

he quickly reverted to drug use and sporadic engagement. At the time of trial,

the father was homeless, was still struggling with drug addiction, and had used

drugs during the pendency of the trial. The father had done nothing to address

his domestic violence issues and had not completed a parenting assessment

with a domestic violence component to learn what treatment might be

recommended. The father made no progress toward reestablishing visitation,

since he attended only one of six scheduled appointments with his son's

counselor and testified that he learned little about the reasons for his son's

treatment. While the father appeared to have good intentions upon his release,


                                          14
No. 79220-2-1/15

there was a lack of evidence of sustained actual efforts to match those intentions.

And there was countervailing evidence that the father believed that neither

domestic violence nor drug use affected his parenting.

        Moreover, Jackson testified that it would be at least a year before the

Department could consider reunifying the children with their father, assuming

consistent participation and progress in all services in the interim. She also

testified that a year was beyond the near future for the children, based on their

ages of eight, six and three. Even if we were to agree that the evidence showed

a trajectory of consistent participation and steady improvement, the evidence

supports the court's finding that potential reunification in a year, at the earliest,

was not within the children's near future. Substantial evidence supports the

juvenile court's finding that there is little likelihood that conditions would be

remedied so that the children could be returned to the father's care in the near

future.5



IV.     Due Process

        The father alleges a due process violation. He contends the juvenile court

terminated his parental rights, in part, based on his failure to address domestic

violence, a deficiency of which he was not notified prior to the termination trial.

        Parents have a fundamental liberty interest in the care and welfare of their

children. In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452


       5 The father assigns error to numerous other findings made by the juvenile court. We
address the findings only to the extent that the father provides specific argument in his briefing.
See Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010) (citing Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)); RAP 10.3(a)(6).


                                                   15
No. 79220-2-1/16

(2007). Parental rights cannot be abridged without due process of law. A.M.M.,

182 Wn. App. at 790-91. Due process requires "'that parents receive notice of

the specific issues to be considered' at a termination hearing. Id. at 791 (quoting

In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970)). Such notice

is required "to prevent surprise, helplessness and disadvantage.' Id.

      The order of dependency and petition to terminate the father's parental

rights described two main issues underlying the dependency: substance abuse

and domestic violence. The primary services ordered by the dependency court

were designed to address these issues.          Yet, the father contends he was

unaware that the court could rely on his untreated domestic violence issues as a

basis to terminate his parental rights. The father points out that neither the order

of dependency nor the Department's termination petition specifically labelled

domestic violence as a parental deficiency and the court expressly declined to

order a separate domestic violence assessment or domestic violence treatment.

       But no authority suggests that constitutionally adequate notice is

dependent on the use of specific language. In In the Matter of the Parental

Rights of F.M.O., the court rejected a similar argument that evidence of notice of

parental deficiencies could be found only in certain pleadings. 194 Wn. App. 226,

230, 374 P.3d 273 (2016). The court in F.M.O., held that review of the entire

record must show that both sides were aware of what "deficiencies are at issue

since the State has to prove the deficiencies to make its case while the parent

has to know what allegations to defend against." Id. at 232. The court observed

that termination trials are often the "endgame in lengthy proceedings where the




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No. 79220-2-1/17

parties have wrestled over the needed services during the previous years and

there is no question what deficiencies are truly at issue." Id. Because issues may

come to light throughout the proceedings, from various sources, the court

concluded that it would serve "only form instead of substance" to impose rigid

requirements as to how a parent must receive notice. Id.

      This rationale also applies here. While neither the order of dependency

nor the petition to terminate the father's parental rights uses the phrase "parental

deficiencies," it is clear from both documents, and from the record as a whole,

that domestic violence was a primary concern of the Department and an issue

the father needed to address.

      The petition to terminate the father's parental rights highlighted the "history

of domestic violence" and past incidents witnessed by the children.              The

Department also asserted in the petition that there was little likelihood the father's

parental deficiencies could be remedied to allow the children to be returned to his

care in the near future, in part, because the father was incarcerated and would

be unable to complete domestic violence treatment in the foreseeable future.

       Both the order of dependency and termination petition also referred to two

specific incidents of domestic violence against the mother. The dependency

order included the mother's report that the father had been convicted of

assaulting her and indicated that one of the children reported to law enforcement

that the father had punched him and his brothers. The father's own handwritten

correspondence to the court reflects his awareness that domestic violence was

one of the reasons the Department took custody of the children.




                                             17
No. 79220-2-1/18

       The father's reliance on the dependency court's failure to separately order

a domestic violence assessment and treatment is likewise unpersuasive. The

dependency court struck the requirement of a separate domestic violence

assessment, but included a handwritten interlineation adding a domestic violence

component to the parenting assessment. The court also required the father to

follow all treatment recommendations following from that assessment. It was

clearly a benefit to the father to streamline his court-ordered services to make

them less cumbersome. And this consolidation made him no less aware of the

possibility that he would be required to participate in domestic violence treatment.

       The father relies on this court's decision in A.M.M. 182 Wn. App. at 790-

91. But the facts in A.M.M. differ from those here in critical respects. In A.M.M.,

the dependency proceedings and the termination hearing focused on the

mother's substance abuse problems. Id. at 780-83. The mother only became

aware of a parental deficiency that could support termination when a social

worker testified at the termination trial that the mother lacked an understanding of

her children's needs. Id. at 784. But here, domestic violence was an issue

throughout the dependency proceedings and the termination trial.               The

Department's position that domestic violence was a parental deficiency and a

barrier to reunification was clear. There was no unfair surprise and the father

fails to establish a due process violation.




                                              18
No. 79220-2-1/19

      Affirmed.




WE CONCUR:




                   19
