                                                                            FILED 

                                                                          NOV 19,2015 

                                                                  I n the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


In the Matter of the Welfare of:               )
                                               )         No. 32938-1-111
R.L.,                                          )
                                               )         UNPUBLISHED OPINION
                                               )

        KORSMO, J. -   A father, JL, appeals the trial court's decision to terminate his

parental rights to his son, RL. We affIrm.

                                           FACTS

        RL, his older brother, and his step-sister, were placed with their maternal great-

grandparents after their mother, AL, was accused of domestic violence against JL in May,

2010. Because of this incident, the Department of Social and Health Services (DSHS)

initiated dependency proceedings. JL was permitted to visit the children.

        The dependency required JL to complete certain services, including a neuro­

psychological evaluation, individual mental health therapy, parenting class, domestic

violence perpetrator evaluation, drug and alcohol evaluation, and UAIBA monitoring. He

immediately began the required services. After an evaluation, JL also began a one year

domestic violence treatment program in August 2010.
No. 32938-I-III
In the Welfare ofRL


       Dr. Brian Campbell conducted a neuropsychological evaluation. He found that,

while JL had above average intelligence, he had lower scores in memory and may have

trouble learning. Dr. Campbell noted that because JL's own childhood was abusive, he

began using alcohol and abusing drugs at a young age. Ultimately Dr. Campbell

diagnosed JL with a cognitive disorder, mild anxiety, and memory loss associated with a

past traumatic brain injury. He recommended a variety of services including but not

limited to continuing domestic violence/anger management education, cognitive behavior

therapy, relaxation training, and stress reduction. DSHS attempted to work with JL's

primary care physician to arrange these services.

       In March 2011, DSHS attempted to move the children back into JL's house, but

two months later another domestic violence incident occurred. Assisted by DSHS, AL

sought and obtained a protection order against JL for herself and the children. DSHS also

struck its motion to return the children to their home. At this point, JL left Colville and

went to visit his grandmother in Nevada; DSHS was unable to reach him. Because he left

town, JL's visits were suspended and he did not complete his one-year domestic violence

perpetrator treatment program. In August 2011, the program discharged him for missing

the last three sessions.

       By May 2012, JL was back in Washington. That spring, he spent some time

incarcerated in Spokane. In July 2012, JL entered a 30-day inpatient chemical

dependency treatment program. After completing the inpatient program, it was

                                              2

No. 32938-I-II1
In the Welfare ofRL


recommended he complete an outpatient program as welL I That October, DSHS referred

JL to Sean Smithram, a clinical psychologist. JL only attended two sessions. He missed

three sessions in November and another three sessions in December.

       JL was again incarcerated from February until early April 2013. DSHS served

him with notice of the termination proceeding during this time. Although the petition

mentioned both of JL's sons, by the time of trial DSHS was pursuing termination only as

to the youngest child, RL. AL relinquished her parental rights and is not a party to this

appeal.

       Shortly after JL was released from jail, there was a family team decision meeting

regarding the children. RL's therapist recommended against any contact with his father.

JL then stopped communicating with DSHS. He had no contact with the agency until

July 10,2013, when he notified the social worker that ifhe could not see his children he

was not going to be engaging in any more services.

      The termination trial began in early May 2014. A number of witnesses testified,

including RL's therapist. She had begun seeing RL two years earlier when the child was

four. The therapist indicated that RL suffers from post-traumatic stress disorder (PTSD).

He has "rage episodes," suffers from emotional distress, and is very hard on himself. RL

told the therapist his dad was scary. She testified that rage would be triggered when RL



       lOur record does not indicate whether he did so.

                                             3

No. 32938-1-III
In the Welfare ofRL


went out in public or saw men with tattoos because they reminded him of his father. She

believed that memories of violence caused his behavior.

       She went on to testify that RL needs permanency. She felt that if he were adopted,

he would probably need six more months of regular therapy with only sporadic therapy

after that. In contrast, she could not fathom what would be required if he were not

adopted, stating that he would likely need therapy until he achieves permanency.

Ultimately, she did recommend that JL not have any further contact with RL.

       JL testified that he was happy with his new girlfriend and their new baby. JL

conceded, after listening to RL's therapist, that the situation with RL had deteriorated,

and that it was best for RL to remain where he was. JL maintained, however, that he did

not want his rights terminated, but instead wanted visitation once RL could handle it.

       JL's current therapist, Myriah Pazerckas Roy, also testified. She ended treatment

of a number of his past conditions, including PTSD and his personality disorder, because

the symptoms had abated. She also said that he was doing well with his new family and

there were no indications he was unfit to parent.

       The trial court terminated JUs parental rights to RL. In its oral ruling, the trial

court noted that although JL "has addressed many of the deficiencies, he cannot address,

or doesn't have the tools to address the severe past emotional trauma that [RL] endured."2


      2 The court also stated it did not want any undue scrutiny from DSHS concerning
JL's new child.

                                              4

No. 32938-1-III
In the Welfare of RL


In its written order, the trial court specifically found that JL was currently unfit to parent

RL. The court also found that RL suffered "intense trauma" while residing with JL and

that he was "damaged by his relationship with his father."

       JL timely appealed to this court.

                                         ANALYSIS

       JL presents four arguments: (1) the trial court erred when it found that all

reasonably necessary services had been provided to rectify his parental deficiencies, (2)

the trial court erred in finding that JL was an unfit parent, (3) the trial court erred by

failing to consider the incarcerated parent factors in RCW 13.34 .180( 1)(t), and (4) his

due process rights were violated because the State did not allege the incarcerated parent

factors in its termination petition. We address each argument in turn, but jointly consider

the final two arguments.

       When deciding whether to terminate a parent's rights to his or her child,

Washington courts apply a two-step process. In re Welfare of A.B., 168 Wn.2d 908, 911,

232 P.3d 1104 (2010). "The first step focuses on the adequacy of the parents" and requires

DSHS to prove, by clear, cogent, and convincing evidence, the six termination factors set

forth in RCW 13.34.180(1). Id. For the second step, "the trial court must find by a

preponderance of the evidence that termination is in the best interests of the child." In re

MR.H., 145 Wn. App. 10,24,188 P.3d 510 (2008) (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.

                                               5

No. 32938-I-III
In the Welfare ofRL


Reasonably Necessary Services

       JL only challenges the court's ruling on one of the six termination factors, arguing

that the record does not support a finding under RCW 13.34. 180(l)(d). That provision

requires:

      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.

(Emphasis added.) A service is "necessary" if it is needed to address a condition that

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

n.3, 225 P.3d 953 (2010). The services must be tailored to the individual's needs. In re

Dependency ofTR., 108 Wn. App. 149, 161,29 PJd 1275 (2001). However, because

RCW 13J4.180(l)(d) limits the services required to those capable of remedying parental

deficiencies in the "foreseeable future," a trial court can find that DSHS offered all

reasonable services where "the record establishes that the offer of services would be

futile." MR.H., 145 Wn. App. at 25.

       The finding on any factor "must be upheld if supported by substantial evidence

from which a rational trier of fact could find the necessary facts by clear, cogent, and

convincing evidence." Id. at 24. "Because the trial court has the opportunity to hear the

testimony and observe the witnesses, its decision is entitled to deference." In re Welfare

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

                                             6

No. 32938-I-II1
In the Welfare ofRL


       Here, the trial court found that "[t]here is little likelihood that conditions will be

remedied so that the child can be returned to the parent in the near future." This is

essentially a finding that further services would be futile. Substantial evidence supports

this finding.

       First, because JL damaged his relationship with RL so severely, reunification

would be impossible, regardless of what services DSHS provides. Where it is not

possible to reunify parent and child, providing further services is futile. See In re Welfare

ofK.MM, 187 Wn. App. 545, 568-569, 575, 349 PJd 929 (2015). RL's counselor

testified that the child was significantly scared of the very prospect of returning to his

father. The fear of his father was causing him to rage and destroy things in his foster

home. Setting foot outside, or any change in his routine would trigger this fear. Further,

men with tattoos also triggered the fear because they reminded him of his father. The

counselor continued, that while at least six months of counseling would be required if RL

were adopted by his foster parents, she could not fathom what would be required if he

were kept in limbo for longer. Finally, JL himself testified that he would be unable to

repair his relationship with RL.

       Second, JL did not complete many of the services that DSHS provided him and

said he would not complete further services if DSHS continued to forbid visitation.

When a parent is unwilling or unable to make use of the services provided, DSHS is not

required to offer still other services that might be helpful. T.R., 108 Wn. App. at 163.

                                              7

No. 32938-I-III
In the Welfare ofRL


The evidence showed that DSHS arranged for domestic violence perpetrator treatment in

August 2010, which JL failed to complete. DSHS also arranged psychotherapy where JL

attended only two sessions. Further, JL was simply unreachable for much of the

dependency.

       JL argues that if family therapy had been provided, RL would not have the current

fear toward his father. JL relies heavily on our opinion in In re s.J. to argue that where

attachment and bonding issues have arisen because ofthe dependency, DSHS has a duty

to provide services to correct that issue prior to termination. See s.J, 162 Wn. App. at



       JL's situation, however, is distinct from the situation in SJ There the State

acknowledged a lack of attachment and bonding was preventing the parent (T.H.) from

effectively caring for the child (SJ). Id. at 882, 883. T.H. encountered unusually strong

controlling and aggressive behavior from SJ. Id. at 883. Further, this behavior arose

because SJ. had bonded with his foster parents while away from T.H. Id. We noted that

the child and parent were attached at the initiation of the dependency, and held that it was

"DSHS's role to work with SJ. to reduce this [new] behavior." Id. However, it was

clear in s.J. that the new behavior had not developed as a fault ofthe parent, but rather

because of the separation itself during the dependency. Id. at 883-884. In comparison,

here, the trial court found that RL was "damaged by his relationship with his father,"




                                             8

No. 32938-I-III
In the Welfare ofRL


and not by the mere separation alone. The court also noted that RL suffered "intense

trauma ... while residing with 1.L."

       To counter this argument, JL assigns error to these findings. Substantial evidence,

however, supports them. Prior to the dependency, there was an alleged incident of

domestic violence and AL was arrested. Ultimately, the department removed the

children. However, JL was allowed visitation for the first year of the dependency. After

the first year, there was a new incident of domestic violence and a no contact order

against JL. Because of this incident and the no contact order, the court terminated JL's

visitation. In addition, RL's counselor testified that RL's fear of his father, or anyone

looking like his father, developed because of domestic violence that RL had seen in the

home. These facts support the trial court's finding that JL caused RL's emotional trauma.

       Substantial evidence supports the trial court's finding that DSHS provided all

reasonably necessary services capable of correcting the parental deficiencies.

Finding of Unfitness

       As noted previously, the first part of the termination inquiry focuses on the

deficiencies of the parent and the second part focuses on the best interests of the child. In

addition to the six termination factors ofRCW 13.34.180(1), due process requires the

trial court to explicitly or implicitly find by clear, cogent, and convincing evidence that

the parent is currently unfit. A.B., 168 Wn.2d at 918-919. Where a trial court finds all

six elements of the statute by clear, cogent, and convincing evidence, it implicitly finds

                                              9

No. 32938-I-III
In the Welfare ofRL


the parent is unfit by the same standard. In re Dependency ofK.N.J., 171 Wn.2d 568,

576-577,257 P.3d 522 (2011). A trial court cannot terminate a parent's rights absent this

finding of unfitness. A.B., 168 Wn.2d at 918. We review the finding for substantial

evidence. In re Welfare ofB.P., 188 Wn. App. 113, 132,353 P.3d 224 (2015).

       1L argues that the trial court inappropriately incorporated a best-interest-of-the­

child analysis when it determined parental unfitness. He notes that the trial court

appeared to believe he was a fit parent because the court directed DSHS not to scrutinize

1L's relationship with his new child. He relies heavily on A.B. to suggest that the trial

court's findings were inconsistent, requiring reversal. We disagree and conclude that

substantial evidence supports the trial court's finding.

       In A.B., our Supreme Court reversed a termination because the trial court made no

explicit finding that the parent was unfit and one could not be implied. 168 Wn.2d at

924. In determining whether the court could imply the necessary finding, the court

looked to the findings the trial court did make, and noted that they conflicted on whether

the parent was unfit. Id. at 922. The court feared that the trial court was inappropriately

focusing on A.B.'s best interests rather than the parent's unfitness. Id. at 926.

       1L's situation is different. There the trial court made no express finding of

parental unfitness, and the court noted that to imply a finding, it must be clear from the

record that the omitted finding "was actually intended, and thus made, by the trial court."

Id. at 921,924. In contrast, here the trial court made an express finding of parental

                                             10 

No. 32938-1-III
In the Welfare ofRL


unfitness. Therefore, the only question here is whether substantial evidence supports the

trial court's finding of unfitness.

       JL's argument also fails because JL inappropriately relies on the trial court's oral

ruling rather than its actual findings. While a trial court's oral opinion may be used to

clarifY the formal findings when necessary, it is not itself a finding of fact. State v.

Kingman, 77 Wn.2d 551, 552,463 P.2d 638 (1970). A party cannot take an oral decision

by the trial court and argue that it is inconsistent with the court's written findings in an

attempt to impeach those written findings. Johnson v. Whitman, 1 Wn. App. 540, 546,

463 P.2d 207 (1969).

       JL's remaining argument is essentially that a parent cannot be tit as to one child

while simultaneously unfit as to another. We, however, rejected a similar argument in

B.P., 188 Wn. App. at 132. This possibility follows logically: what is required to parent

an undamaged newborn may be different than what is required to parent a child suffering

from severe psychological trauma, especially where the parent caused the trauma. Here,

the trial court found that RL suffers from PTSD, Reactive Attachment Disorder, and

depression. Significantly, the court found that RL was "damaged by his relationship with

his father" and that he suffered "intense trauma ... while residing with J.L." In such a

situation, it is reasonable that JL could be unfit to parent RL, but fit to parent his new

baby who does not suffer from these issues.




                                              11 

No. 32938-1-III
In the Welfare ofRL


       Substantial evidence supports the trial court's finding that JL is currently unfit to

parent RL. The trial court found that RL is "not willing to have contact with his father,"

and RL's therapists "urgently recommend against RL engaging with his father." The

court also recognized RL's significant behavioral difficulties, including "rages" and his

fear of going places because he might run into his father. Where parent and child have no

relationship, the child suffers from fear of the parent, and services cannot repair the

relationship, substantial evidence supports the finding of unfitness.. See K.MM, 187 Wn.

App. at 577.

       The finding was supported by substantial evidence.

Incarcerated Parent Factors

       JL's last two arguments deal with the incarcerated parent factors ofRCW

13.34. 180(1)(f). The sixth statutory factor requires a trial court find that "continuation of

the parent and child relationship clearly diminishes the child's prospects for early

integration into a stable and permanent home." RCW 13 .34.180(1 )(f). However, this

inquiry changes if the parent is incarcerated. In 2013, the legislature appended the

following language to the sixth factor:

      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


                                             12
No. 32938-I-III
In the Welfare ofRL


       apprised of his or her location and in accessing visitation or other
       meaningful contact with the child.

RCW 13.34.180(l)(t). The plain reading of the statute requires a trial court to consider

three additional factors "[i]fthe parent is incarcerated." Id. The parties dispute whether

the amendment applies to this case. JL argues it applies to any parent who was

incarcerated during the dependency, while DSHS argues that it only applies to parents

incarcerated at the time ofthe termination. It is undisputed that JL was not incarcerated

at the time of the termination, but was periodically incarcerated during the dependency.

       Division One of this court recently interpreted this provision under similar facts in

State v. Saint-Louis, 188 Wn. App. 905, 355 P.3d 345 (2015). In Saint-Louis, the court

dealt with a mother who was incarcerated for approximately seven months. Id. She was

incarcerated when her termination petition was filed, but she was released a month prior

to the trial. Id. at 911-912. Division One held that the incarcerated parent factors did not

apply to her case because she was not incarcerated at the time ofthe termination. Id. at

916.

       That reasoning is persuasive. The court looked at the language of the provision

and recognized that it is written in the present tense. Id. at 917 ("[i]f a parent is

incarcerated"). The court went on to note that the legislature used different language in

other sections of the 2013 law. Id. at 917 (referencing a number of places where the

legislature referred not just to present incarceration but also to a parent's "prior


                                              l3
No. 32938-1-III
In the Welfare ofRL


incarceration"). Ultimately, the court held that the phrase "is incarcerated" is

unambiguous, and a trial court only needs to consider the factors if the parent is

incarcerated at the time of the termination. Id. at 919.

       We agree. If the statute's meaning is plain on its face, we apply the plain

meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). The

amendment reads "[i]fthe parent is incarcerated." RCW 13.34.180(1)(f) (emphasis

added). Because the court is only considering these factors at the time of the termination,

the parent "is incarcerated" only if he or she is incarcerated at the time of the termination.

       JL argues that this court should read into the dependency statute the words "during

the dependency." Under his argument, the statute would read "if the parent is

incarcerated during the dependency," then a court considers the three additional factors.

Reply Br. at 1. However, in interpreting a statute, an appellate court applies the plain

meaning of the statute as written. Armendariz, 160 Wn.2d at 110. Had the legislature

wanted the statute to read the way JL suggests, it could have easily added the two words

JL desires. An appellate court "will not add language to a clear statute." Wash. State

Coal. for the Homeless v. Dep 't ofSoc. & Health Servs., 133 Wn.2d 894, 904, 949 P.2d

1291 (1997).




                                             14 

                                                                                            t

                                                                                            ,f
No. 32938-1-II1
In the Welfare ofRL                                                                         I•
                                                                                            \
                                                                                            t
       We hold that the additional incarceration factors ofRCW 13.34.180(1)(f) only

apply to parents incarcerated at the time of the termination. Because JL was not
                                                                                            It
incarcerated at the time of the termination, the factors do not apply to this case. Thus,
                                                                                            if
                                                                                            1


JL's third and fourth arguments fail.
                                                                                            1
                                                                                            i
       The judgment is affirmed.
                                                                                            l
                                                                                            I

       A majority of the panel has determined this opinion will not be printed in the       I1
                                                                                            (,


Washington Appellate Reports, but it will be filed for public record pursuant to RCW        t
                                                                                            i
                                                                                            t
2.06.040.
                                                                                            I




WE CONCUR:



  d7 dIv tV~ ,c,C1--
                 V
       Siddoway, C.J.


C.~r"-      ........ <.. -
      Lawrence-Berrey, J.
                             ~v....<"1 





                                             15 

