                                                                        FILED 

                                                                   SEPTEMBER 18,2014 

                                                                 In the Office ofthe Clerk of Court 

                                                                WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


InRe:                                         )         No. 31785-4-III
                                              )
A.B.                                          )
                                              )         UNPUBLISHED OPINION


        SIDDOWAY, C.J. - L.L. appeals the decision terminating her parental rights to her

daughter, A.B. Central to the trial court's termination ofL.L.'s parental rights were its

fmdings that L.L. is unable to recognize concerns for the health, safety, and welfare of

A.B., and that her parental deficiency is unlikely to be remedied in the near future, if

ever. Because the Department of Social and Health Services failed to meet its burden of

demonstrating at least two essential termination factors-that it had offered or provided

all necessary services and that L.L.' s parental deficiencies were unlikely to be remedied

in the near future-we reverse and remand for vacation of the order terminating L.L.'s

parental rights.

                                          FACTS

        A.B., now eight years old, is the daughter ofL.L. L.L., a rape victim, does not

know who L.L.'s father is. When A.B. was born, L.L. was living with her father in

Maryland. Shortly thereafter, L.L. moved to her mother's home in Massachusetts for,
No. 31785-4-111
In re A.B.


financial support and help in raising A.B. This was despite the fact that 1.L.'s mother

had unresolved substance abuse problems and mental health issues, and had always been

manipulative and belittling to 1.1. and her brother and sister. 1.1. described living with

her mother as "pure hell." Report of Proceedings (RP) at 238.

       Trisha Bann, a resident of Lewiston, Idaho, and a lifelong friend of1.L.'s mother,

recognized how detrimental it was to 1.1.'s well-being for her to live with her mother

and encouraged 1.1. to move to Idaho. In August 2010, 1.1. met a man from Clarkston,

Washington, Nick, whom she married several months later. She and A.B., who was then

four years old, moved to Clarkston in December 2010. Shortly after marrying Nick, 1.1.

became pregnant with a second daughter, N.

       1.1. has been diagnosed with bipolar disorder. At the time of the May 2013 trial

in this matter, she testified that she had been receiving Social Security disability benefits

as a result of her bipolar disorder for six years. She is prescribed several medications for

the disorder, I which she ceased taking after learning she was pregnant.

       Washington State's Child Protective Services (CPS) became involved with 1.1.

and her children when N. was injured as an infant. Doctors contacted CPS when N.

sustained a skull fracture and they found the injury inconsistent with 1.1.'s explanation

that she had tripped and dropped N. When CPS social workers went to 1.L.'s and Nick's


       I Her prescribed medications have included a mood stabilizer, an antidepressant,
and an antianxiety medication.

                                              2

No. 31785-4-III
In reA.B.


home, it was filthy, and firearms and pornography were accessible to the children. The

children were taken into State care in early November 2011. Personnel of the

Department of Social and Health Services later learned that during the time L.L. and A.B.

had lived with L.L.'s mother, child abuse and neglect referrals were made concerning the

care of A.B. A.B. had been removed from L.L.'s care at least once before.

       The department filed a dependency action as to A.B. a few days after the

hospital's referral. By agreement, A.B. was found dependent in late January 2012. A

dependency dispositional order was entered on that same date. 2 By the terms of the

dependency, L.L. agreed to a court-ordered service plan that required her to participate in

a psychological evaluation and parenting classes, demonstrate learned skills during visits

with her children, join a women's support group at the YWCA, and engage in counseling

with a therapist at St. Joseph's Regional Medical Center. In addition, L.L. was required

to ensure that no unsafe incidents occurred while the children were at visits, develop

personal and community supports to assist with a safe return home ofthe children,

maintain regularly scheduled appointments with her psychiatrist to manage her

medications, report any out-of-the-ordinary manic or depressive behavior to her treatment

team, ensure that firearms in her home had trigger locks installed and store ammunition

separately from and out of the children's reach, maintain the home in a safe and sanitary


       2 N. was also found dependent, but that dependency was later dismissed. N. is in
the care of her father, Nick.

                                             3

No. 31785-4-111
In re A.B.


fashion, develop a home maintenance schedule and follow it, sign releases of

information, and notifY the department within five days of a change of address or phone

number.

       Unlike most parental right termination proceedings appealed to this court that

present more than enough evidence of unabated chemical dependency, failure to comply

with recommended programs and services, haphazard visitation, or indifference to the

steps necessary to avoid termination of a parent's rights, this case presents no evidence of

substance abuse by L.L., and presents undisputed evidence that she complied with

recommended programs and services and has a strong bond and loving relationship with

A.B. In this atypical case, the department's petition to terminate L.L.'s parental rights

focused on a specific deficiency that the department attributed to L.L.'s dysfunctional

upbringing and her bipolar disorder: while acknowledging that "Mother has complied

with all ordered services," it alleged that she had proved "unable to maintain a safe

environment for either of her children. She corrects safety concerns when they are

pointed out to her but is unable to adequately [gauge] safety on her own." Clerk's Papers

(CP) at 4.

       A two-day trial on the department's petition was held in May 2013. By that time,

L.L. and Nick had divorced, but L.L. was pregnant (which she learned after finalization

of the divorce) with Nick's child. At the time of trial, L.L. was still pregnant and once

again off her medications. She was also living temporarily with Ms. Bann and looking

                                             4

NO.31785-4-III
In re A.B.


for new housing, having been fired from a position as a live-in caretaker for an older

gentleman.

       The trial court found that the department had met its burden of proof and

terminated L.L.' s parental rights. In its oral ruling, the court stated that even if a parent

complies with services, "if it's not safe for the child to come back home, they're never

going to get their child back. And that's what we have here." RP at 377. After the court

entered its order, findings, and conclusions, L.L. appealed.

                                         ANALYSIS

       To obtain an order terminating L.L.'s parental rights for parental unfitness, the

State was required to prove six elements, set forth in RCW 13.34.180(1), by clear,

cogent, and convincing evidence, and that termination is in the best interests of the child.

RCW 13.34. 190(1)(a), (b); In re Welfare ofA.B., 168 Wn.2d 908,920,232 P.3d 1104

(2010). L.L. contends that clear, cogent, and convincing evidence does not support the

court's determinations that the department provided or offered her all necessary services,

that there is little likelihood her deficiencies will be remedied in the near future, or that

the continuation of the parent-child relationship diminishes A.B.'s prospects for early

integration into a permanent and stable home. She also contends that the department

failed to prove that she is currently unfit to be a parent and challenges the trial court's

finding that the order terminating her parental rights is in A.B.'s best interests.

       Our review is limited to determining whether substantial evidence supports the

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No. 31785-4-III
In re A.B.


trial court's findings of fact. In re Welfare ofCB., 134 Wn. App. 942, 952-53, 143 P.3d

846 (2006). A finding of fact "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." In re Welfare ofMR. H., 145 Wn. App. 10, 24, 188 P.3d 510

(2008). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is

shown to be highly probable. In re Welfare ofSego, 82 Wn.2d 736, 739, 513 P.2d 831

(1973). We do not reweigh the evidence or pass on credibility, and we accord great

deference to the trial court's decision to terminate.

       We first summarize the evidence ofL.L.'s alleged inability to maintain a safe

environment for A.B. We then address L.L.'s challenges to the court's findings of two

statutory termination factors. Finding them unsupported and that the lack of support for

one is a sufficient basis for reversing the termination order, we need not address her

remaining challenges.

                        1. History In Support ofParental Deficiencies

       Pre-November 2010 child protective services referrals (before L.L. 's and A.B. 's

move to Clarkston). The State presented evidence that while L.L. and A.B. were living in

the eastern United States with L.L.'s mother, A.B.'s welfare was the subject of child

protective service referrals in May 2006, November 2006, March 2007, May 2009, and

September 2010 that were investigated by state agencies. At least one referral resulted in

a temporary removal of A.B. from L.L.'s care. In that case (the November 2006 referral),

                                              6

No. 31785-4-111
In re A.B.


L.L. had been hospitalized following a suicide attempt, left A.B. with her mother, and her

mother then left A.B. with a friend "who ha[d] serious safety concerns." CP at 3. L.L.'s

testimony that all of the referrals involved her mother in some fashion tends to be

confirmed by the recount of the referrals in the department's petition for termination,

which characterize L.L.'s mother as "a serious risk due to ... unresolved mental health

and substance abuse issues," and as having "significant mental health and substance

abuse issues." Id.

       L.L. acknowledged that the last referral, when she and A.B. were living with her

mother in a fifth-wheel trailer in Connecticut, included an allegation that their living

quarters were unsanitary. The department's petition for termination indicated that the

Connecticut referral was not accepted for investigation, having been found

"[u]nsubstantiated." Id. (emphasis omitted).

       There was testimony from Sheila McDougall, the assigned caseworker, that the

2009 referral in Massachusetts (made when 3-year-old A.B. was found wandering on a

busy street after being left with her grandmother) resulted in a second temporary removal

of A.B. from L.L.'s care. 3 L.L. testified that the referral did not result in A.B.'s removal

from her care. The department's petition for termination had recounted facts about the

2009 referral but, unlike its recount of the circumstances of the November 2006 referral,



       3   This testimony was given after the trial court overruled L.L.'s hearsay objection.

                                               7

No. 31785-4-111
In re A.B.


it did not suggest that the later referral resulted in removal of A.B. from L.L. 's care.

       November 2011: Unsanitary conditions following hospital referral. Ms.

McDougall, who had been assigned to A.B. 's case since its inception, testified that A.B.

was removed from L.L.'s home in November 2011 because of the hospital's reported

concern about A.B.'s younger sister N.'s skull fracture and because, when department

social workers visited the home, it "was filthy, ah, dog feces and urine all over the floor,

ah, clothing all over the place, and, ah, just a general mess-pornography accessible to

the children." RP at 160-61. There was also "several unsecured firearms loaded in ...

the home-one right behind the front door." RP at 161.

       November 2011 to late June 2012 time frame. Dates were not provided for most

events occurring during the dependency that were described at trial. This is especially

true for the first eight months after the department commenced the proceeding; the

department did not call any visitation supervisors for that period to testify. The best we

can do in most cases is place events from this period in the eight-month time frame.

       There was generalized testimony about safety and care issues that were addressed

during this time frame. L.L. testified that firearms in the home had been a point of

contention between her and Nick even before the CPS referral, and that the day after N.

was seen at the hospital, Nick removed them from the home. She testified that the

pornography found in the home was material she purchased for Nick for the six-week

period following N.' s birth during which her doctor recommended that L.L. not engage in

                                               8

No. 31785-4-111
In re A.B.


intercourse. Pornography was not identified as a concern anywhere in the trial record

apart from its having been found in the home in November 20 II.

       L.L. submitted to a psychological evaluation by Dr. Richard Gallaher in three

interviews conducted between December 8, 2011 and January 10, 2012. Although Dr.

Gallaher did not test or independently diagnose her, he accepted her self-reported

diagnosis of bipolar disorder, which he later testified was consistent with the medications

she had been prescribed.

       L.L. took the parenting class that she was asked to take by the department

sometime during this time period. 4 The department had concerns about exposed wiring

in the home and a bookcase that was not secured to the wall, and those concerns were

addressed and corrected during this time frame.

       Observations from supervised visitation supervisor Kathy Suesz, late June 2012 to

late August 2012. The observations of Kathy Suesz, who supervised L.L.'s visits with

A.B. for two months in the summer of 20 12 can be tied to the late June 2012 to late

August 2012 time frame. Visitation was twice a week, two hours a visit. Ms. Suesz was

initially supervising joint visits with A.B. and N. by L.L. and Nick, but L.L. and Nick

separated in mid-July and after that, Ms. Suesz supervised separate visits between the

children and each parent.


       4At a later date-the timing is not clear-L.L. testified that she took a second
parenting class on her own.

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No. 3 I 785-4-II1
In re A.B.


       Ms. Suesz testified that by the time she began supervising visitation, L.L. and

Nick had already put up child gates and had closed doors so that the girls did not enter

unsafe spaces. Ms. Suesz testified that she made unspecified additional suggestions

about childproofing their home; the implication of her testimony was that her

childproofing suggestions were followed.

       Ms. Suesz testified to several general concerns, as well as specific instances where

she felt the children were unsafe. Generally, she felt there was unhealthy competition

between L.L. and Nick when they were living together and that L.L. had difficulty paying

attention to both girls at one time. She had some concerns that L.L. wanted to be more of

a friend than a mother to her children.

       More specifically, Ms. Suesz identified two instances in which she had been

concerned for the children's safety. The first was when L.L. and Nick allowed A.B. to

climb on the back of the couch, stand on it, and write on a picture window, which L.L.­

who was kneeling on a cushion at the other end of the couch-was writing on as well.

On that occasion, Ms. Suesz expressed her concern to both parents, who did not act on it.

On the second occasion, L.L. was tossing N. in the air and catching her; Ms. Suesz said

she was uncomfortable with it and that it needed to stop. On that occasion, L.L. did stop,

and Ms. Suesz never observed her tossing N. in the air again.

       Observations from supervised visitation supervisor Mercedes Walser, late August

2012 to time o/trial. Mercedes Walser assumed the responsibility for supervising L.L.'s

                                            10 

No. 31785-4-111
InreA.B.


visitation with A.B. at the end of the summer in 2012. At the time, L.L., who had by then

separated from Nick, was temporarily living with a friend in Lewiston. For the couple of

months it took for L.L. to find an apartment, her visitation with A.B. and N. took place in

a park. After L.L. got an apartment, visitation continued there. Evidently in or about

April 2013, L.L. took a live-in caretaking job, from which she was fired; after that, she

moved in with Ms. Bann while looking for shared or low-income housing. 5 As of the

time of trial, L.L. was living with Ms. Bann and visitation was again taking place in a

park.

        At the time Ms. Walser began supervising visitation in L.L.'s apartment, she

described L.L. as having "every single ... gadget that you could have" for childproofing

a home for children. RP at 61. She said there was a heater in the home that could get too

hot, but that L.L. had warned the girls about it and, otherwise, "she had everything pretty

well put away." RP at 62.

        She testified that a problem developed at the apartment when L.L. got a pet

dachshund that was not housebroken and whose "accidents" were tolerated by L.L. more,

and for longer, than they should have been. RP at 291. Ms. Walser testified that the


        5 It was mentioned at the May 21 and 23 trial that L.L. had lived in the apartment
until "fairly recently." RP at 90. Ms. McDougall testified that she had visited the home
where L.L. was living as a caretaker on April 29, approximately three weeks before the
trial, but that it had not been approved for visitation because Ms. McDougall had not
received a completed background check on the owner. L.L. later testified to having been
fired from the caretaking position and that she had moved in with Ms. Bann.

                                             11 

No. 31785-4-111
In re A.B.


smell of dog feces and urine became overpowering and, when visiting the apartment, she

would see dog feces behind the furniture and in the bathroom. At some point during

visitation taking place during the several-week period of the dog problem, N. walked into

the back of the apartment and returned with a piece of dog feces in her hand that she was

getting ready to put in her mouth, causing L.L., according to Ms. Walser, to "leap[]

across the floor," say '"No,''' grab it, and wash N.'s hands. RP at 78.

       Ms. Walser reported the problems with the unhousebroken dog to Ms. McDougall,

and was told that if this continued, Ms. Walser would have to cancel A.B.'s visits. Ms.

Walser reported this back to L.L. She testified, "I informed [L.L.] about this and by the

next week she had remedied that by, ah, shampooing the carpets and thereafter." RP at

62. According to L.L., in addition to regularly shampooing the carpets thereafter, she

"trained [the dog] to be outside." RP at 291.

       Ms. Walser testified that initially there were problems with L.L.'s tardiness to

visitation. But over the course of her supervision L.L. made "substantial" improvements

in that regard. RP at 73. There had also been a problem with the dog nipping at Ms.

Walser and the children. L.L.'s ability to control the dog improved, according to Ms.

Walser, and by her fourth visit the dog had stopped nipping and completely ignored the

supervisor and the children.

       Ms. Walser and others in the department were concerned about the snacks

provided by L.L. during visits, given the importance of good eating habits, testifying

                                            12 

No. 31785-4-111
In reA.B.


"there was a lot of sugar in the snacks initially." RP at 188. Reportedly, A.B.' s foster

family "eat[s] very healthy," which Ms. Walser spoke to L.L. about, after which L.L.

started providing A.B. with more nutritious drinks and snacks. RP at 67.

       Ms. Walser expressed concern that L.L. was sometimes overprotective ofN. Ms.

Walser testified that L.L. gradually improved in her ability to allow N. more freedom and

accommodate the girl's inquisitiveness. When she began supervising visits, Ms. Walser

testified that L.L. seemed preoccupied with other things and managing both girls was

difficult, but L.L. had come to be able to focus on the children at the same time with all

three playing together. Ms. Walser testified that L.L. had learned discipline methods in

parenting classes and that she put them to use with her daughters.

       Ms. Walser testified that on visits to the park, she never saw anything that caused

her to be concerned about an immediate threat to the safety of either child. After the dog

problem was cleared up, Ms. Walser could not identify any other concerns that were

safety issues.

       When it came to her opinion whether L.L. was ready for A.B. to return to L.L.'s

care, however, Ms. Walser testified that she would not be comfortable moving to

unsupervised visitation between L.L. and A.B. She felt uncomfortable because she did

not view L.L. as settled. She stated,

       1 think that [L.L.] would be more successful with someone who could teach
       her skills that-good nutrition, ah, more parenting skills on what's okay to
       watch or do or play, ah, communication skills, bedtime regiment [sic],

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No. 31785-4-III
In re A.B.


       bathing, outdoor activities. . .. I think that she would benefit more with
       someone teaching those skills to her and-and her understanding what is
       being taught.

RP at 90.

       Caseworker McDougall testified that she did not personally observe much

visitation but that she did attend a visitation being supervised by Ms. Walser once, at

L.L.'s apartment. By the time she visited the apartment with Ms. Walser, she testified

that the sanitation problem with the dog "was solved." RP at 171. She testified that the

dachshund bit her twice, however, breaking the skin once on her hip.

       Ms. McDougall also testified that toward the end of the case, when she told L.L.

that the department was moving toward termination and that her best chance of having

continued contact was to have A.B. placed with a relative, L.L. initially provided only the

name of her mother, calling a few days later to put forth her father's name. The

department ultimately argued to the trial court that "nowhere is [L.L.' s] lack ofjudgment

and insight more apparent" than it was in putting forth her mother as a placement option.

RP at 359. When asked about it, L.L. agreed that her suggestion of her mother was,

"what do you call it-stupidity. Ah, just one of those weird things like [']what was I

thinking['] type ofthing." RP at 307.

       Ms. McDougall's conclusion from her and her colleagues' history with L.L. was

that "if you point out a safety issue, [L.L.] is able to correct it if you tell her how to

correct it, but she isn't able to recognize a safety issue before somebody points it out."

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No. 3 1785-4-III
In re A.B.


RP at 173. She expressed the view that 1.1. would never be able to recognize and

address safety issues on her own.

                     II. Were Necessary Services Offered or Provided?

           Under RCW 13.34.180(l)(d), the court must find that the department expressly

and understandably offered or provided "all necessary services, reasonably available,

capable of correcting the parenting deficiencies within the foreseeable future." "This

encompasses 'all reasonable services that are available within the agency, or within the

community, or those services which the department has existing contracts to purchase' in

order to enable a parent 'to resume custody.'" In re Dependency oITL.G., 126 Wn.

App. 181, 198, 108 P.3d 156 (2005) (footnote omitted) (quoting former RCW

13.34. 136(l)(b)(i), (iv) (2000». A service is necessary ifit is needed to address a

condition that precludes reunification of the parent and child. In re Welfare olC.S., 168

Wn.2d 51, 56 n.3, 225 P.3d 953 (2010).

       The trial court entered three findings addressing whether the department offered or

provided necessary services. The first addressed the unavailability of psychosocial

rehabilitative services in Washington, and is not challenged by 1.1. She challenges the

trial court's second and third findings in support of the sufficiency of the department's

efforts.




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No. 31785-4-111
In re A.B.


       The trial court's second finding addressed L.L.'s argument during trial that a

parenting assessment was a necessary and reasonably available service, but was not

provided. She had elicited the following testimony from Dr. Gallaher:

       Q. 	   Can you tell me ifthere are any other sorts of evaluations, for 

              example, a parenting assessment that you might do? 

       A. 	   Ah, there--I could have done, should I be asked to do that, more of a
              parenting assessment. A parent-I did pieces of it. I asked her
              about her parenting knowledge and philosophy and how she
              managed and I asked her to describe the child. A more thorough
              parenting evaluation, ah, would have been to observe her with the
              child and to do a home visit. Ah, since [Department of Social and
              Health Services] as doing those things, they want me to focus on
              history and her as an adult since their records are all child oriented.
       Q. 	   Is this, ah, kind of evaluation something that you have done in the
              past?
       A. 	   Ah, the full or more complete parenting evaluation?
       Q. 	   That's-yes, (inaudible).
       A. 	   I have done some of those, yes.

RP at 32-33. Cross-examination of Ms. McDougall confirmed that no one had performed

a parenting assessment ofL.L.

       After L.L. argued in closing that the department's failure to provide or offer a

parenting assessment caused it to fail the statutory element requiring sufficient

department efforts, the department's lawyer argued that

       the one "service" that the respondent now is able to articulate that wasn't
       understandably, ah, and expressly offered or provided is a parenting
       assessment, and the reason for that is what Dr. Gallaher told you. He
       doesn't do them. He has on rare occasions. He doesn't do them. Ah, he's
       our contracted provider to do psychological evaluations, and in most cases,
       that's the best that we can get. Ah, it's-parenting assessment is not a
       service that's reasonably available. Your Honor has seen parenting

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No. 31785-4-111
In re A.B.


       assessments. The-the local person that we get is Dr. Wilson. Dr. Wilson,
       sadly, is not a contracted provider with the Department. It's not a service
       that's reasonably available.

RP at 370. Consistent with this closing argument, the court's second finding that the

department had satisfied its obligation to offer and provide services states:

       A parenting assessment is not reasonably available because there is no
       contracted provider within 100 miles; however, Dr. Gallaher's
       psychological evaluation did incorporate some elements of a parenting
       assessment, so to the extent that service is reasonably available, it was
       provided.

CP at 39.

       If it is a fact that "a parenting assessment is not reasonably available because there

is no contracted provider within 100 miles," then that fact is not supported by the trial

court record other than by the department's lawyer's closing argument. Argument is not

evidence. Parenting assessment or evaluation is a service frequently mentioned as

offered or provided in reported appeals of parental termination cases. We agree with L.L.

that the trial court's finding that a parenting assessment was not reasonably available is

not supported by clear, cogent, and convincing evidence.

       It is not enough that the service might have been available, however; the

department fails to demonstrate its compliance with RCW 13.34.180(1)(d) only if a

service that it failed to provide or offer was "necessary" in the sense of being needed to

address a condition that precludes reunification. Because the trial court dispensed with

L.L.'s contention that no parenting assessment was provided on the basis that it was not

                                             17 

No. 31785-4-III
In re A.B.


reasonably available, it did not reach the issue of whether a parenting assessment was

necessary and capable of correcting L.L. 's parental deficiencies. Although this may be

an issue in the event of a future motion to terminate, we need not remand for additional

findings in light of our conclusion that the order terminating rights must be reversed on

another basis, discussed in section III below.

       L.L. also challenges the trial court's third finding in support of the sufficiency of

the departmenfs efforts, which states:

       All other services reasonably available and capable of correcting the
       parenting deficiencies, including but not limited to psychological
       evaluation, mental health counseling, medication management, parenting
       education, referrals to personal and community supports, individualized
       education on health and safety issues in the home, and case management,
       were expressly and understandably offered and provided.

CP at 39. She contends that she should have been provided with or offered the family

preservation program, developmental disability services, and family reconciliation

services. Because the record contains testimony from L.L.'s assigned social workers that

L.L. either did not qualify for these services or that the program requested was not

available in Washington State, this finding is sufficiently supported.

                111. Likelihood ofRemedying Deficiencies in Near Future

       The court must find that "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(l)(e).

Three nonexclusive factors are identified as relevant to this element: the parent's


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No. 3 1785-4-III
In re A.B.


(i) chemical dependency, (ii) psychological incapacity or mental deficiency, or (iii)

failure to have contact with the child for an extended period of time. RCW

13 .34.180(1)( e)(i)-(iii). The department makes no allegation of a chemical dependency

nor does it argue that L.L. failed to have contact with A.B.6 The trial court entered

findings of a psychological incapacity and a generalized finding that L.L.' s deficiencies

were not remediable, both of which L.L. challenges as unsupported by the evidence. In

considering these nonexclusive factors and other evidence bearing on whether conditions

can be remedied so that the child can be returned to the parent in the near future, what

constitutes "near future" depends on the child's age and placement circumstances. C.B.,

134 Wn. App. at 954.

       RCW 13 .34.180( 1)( e )(ii) allows the trial court to consider psychological

incapacity ofthe parent that "is so severe and chronic as to render the parent incapable of

providing proper care for the child for extended periods oftime or for periods of time that

present a risk of imminent harm to the child," and where there is "documented


        6 The department elicited testimony from A.B. 's foster mother that there was a
several-month period when she believed L.L. canceled many visitation opportunities, but
Ms. Walser, who served as the visitation supervisor during that time frame, responded
with testimony that there were several reasons for missed visits, including that A.B. or N.
was ill; that L.L., who was then pregnant, had doctor's appointments; and that some visits
were canceled due to Ms. Walser's own conflicts. Ms. Walser testified that she never got
the impression that L.L. was disinterested in visiting A.B., and that L.L. asked for
makeup visitation. But Ms. Walser admitted that her own schedule was "pretty slim,"
and "[u ]nless I had a cancellation of another client, I wouldn't be able to fit it in." RP at
268.

                                              19
No. 31785-4-II1
In re A.B.


unwillingness of the parent to receive and complete treatment or documentation that there

is no treatment that can render the parent capable of providing proper care for the child in

the near future." Evidently relying on subsection (e)(ii), the trial court's first finding that

there was little likelihood of remedying the parental deficiency in the near future stated

that "[t]he mother's demonstrated history of bipolar disorder, for which she has been

treated with medications and receiving disability payments for over six years, is clearly a

chronic incapacity or deficiency within the meaning ofRCW 13.34.180(1 )(e)(ii)." CP at

39.

       The evidence of the diagnosis of bipolar disorder is sufficient to prove a chronic

incapacity or deficiency. And according to the department's petition, L.L. made a

statement in November 2011 that when unmedicated and in a manic phase, she becomes

dangerous for herself and her children. But that evidence is insufficient to support a

finding that she has an incapacity or deficiency "within the meaning ofRCW

13.34.180(1)(e)(ii)." '''[M]ental illness is not, in and of itself, proof that a parent is unfit

or incapable." T.L.G., 126 Wn. App. at 203. "The court must examine the relationship

between the mental condition and parenting ability." Id.

       As L.L. argues on appeal, the trial court made no finding that her condition was

severe, that she was unwilling to receive or complete treatment, or that the State

documented that there is no treatment that can render her capable of providing proper

care for A.B. in the near future--nor is there evidence in the record that would support

                                               20 

No. 31785-4-111
In re A.B.


such findings. Dr. Gallaher testified that bipolar disorder, in and of itself, does not make

one an unfit parent, and he testified that he was unable to make an evaluation of where in

the spectrum of bipolar disorder L.L. would fall without seeing her off her medication'?

What evidence was presented supported L.L.' s position that it was a reasonable decision

to suspend her psychotropic medications while pregnant, for the safety of her unborn

child. The medical records that she offered and were admitted into evidence

demonstrated that she had suspended the medications with the knowledge and while

under the ongoing care of a psychologist and physician. We reject the department's

implicit suggestion that any woman with bipolar disorder who goes off her psychotropic

medications during pregnancy is an unfit parent for the duration ofthe pregnancy.

       L.L. also challenges the trial court's second finding in support of there being little

likelihood of remediation in the near future, which states:

       Whether caused by bipolar disorder, poor parenting modeling, or
       developmental delays, the mother's demonstrated inability to recognize
       immediate or chronic concerns for the health, safety, and welfare of the
       child is unlikely to be remedied in the near future, if ever.




       7 When Dr. Gallaher saw L.L. in December 2011 and January 2012, she was still
in her marriage and on her medications, both of which the doctor believed contributed to
her stability. We are skeptical of the department's efforts to bootstrap those beliefs into a
trial opinion from Dr. Gallaher, 16 months later (and without having seeing L.L. again)
that, since L.L. had separated from Nick and suspended her medications during
pregnancy, she likely presented a danger to her child.

                                             21
No. 31785-4-III
In re A.B.


CP at 39. She argues that insufficient evidence supports the finding that she has a

"demonstrated inability to recognize immediate or chronic concerns for the health, safety,

and welfare" of A.B. She also complains that the State failed to establish a time frame of

what the "near" or "foreseeable" future was for A.B.

       We agree that the record of the termination trial presently on review does not

include sufficient evidence ofa "demonstrated inability" on L.L.'s part to recognize

danger to A.B.'s health, safety, or welfare. The record includes the testimony of

department employees expressing the opinion that L.L. lacks the ability to recognize

safety concerns. But when those employees were pressed by L.L.' s lawyer to identifY the

events that provide the basis for those opinions, the demonstration falls well short of the

clear, cogent, and convincing standard of evidence to which the department is held.

When Ms. McDougall was asked in cross-examination whether she could think of any

behavior by L.L. that she had personally seen in the prior seven months that, but for

supervision, would have caused immediate harm to one of the children, she could not; she

deferred to the visitation supervisors who had personally observed L.L. with A.B. And

the visitation supervisors' testimony revealed only the history identified above-not a

particularly numerous list of events, and all of which had been addressed.

       The record of this termination trial is, like the termination trial on review in

T.L.G., 126 Wn. App. at 205, in "stark contrast to other cases involving mental health

issues" alleged to give rise to irremediable parental deficiencies. In the trial below, the

                                             22 

No. 31785-4-111
In re A.B.


department did not even try to quantify what the "near future" meant for A.B.; instead, it

resorted to a finding that the conditions would not be remedied in the near future "if

ever." T.L. G. described the type of record it would expect to see where a parent who

desires and has consistently worked toward reunification with a child is found to be

incurably incapable:

       [I]n [In re Welfare oj] HS., [94 Wn. App. 511, 528, 973 P.2d 474 (1999)]
       where parental rights were terminated due to mental health issues, the court
       described the record as "replete" with testimony that the parents had not
       benefited from parenting services, were unlikely to improve, and recounted
       a litany of parenting issues. Similarly, in In re Welfare ofA.J.R., [78 Wn.
       App. 222, 225-28, 896 P.2d 1298 (1995)] where both parents were
       developmentally disabled, 15 physicians, psychologists, detectives, social
       workers and service providers testified that reasonably available services
       could not correct the parents' deficiencies regarding the care of their infant
       child.
               Here, there was no parenting evaluation, no testimony connected the
       parents' mental health issues to parental deficiencies, and no mental health
       services treatment was offered over the two years of the dependency. The
       record does not support the finding that no services would have been able
       to correct the deficiencies.

126 Wn. App. at 205 (footnotes omitted); cf In re Welfare ofA.B., 181 Wn. App. 45,64­

65,323 P.3d 1062 (2014) (holding that while the concerns of department employees

about a parent's cognitive impairment preventing her from identifying subtle dangers to

her child sufficed for the purpose of establishing dependency, the parent's impairment

did not make it highly probable that the child would be harmed, thereby rendering the

parent unfit to parent for the purpose of permanently terminating her parental rights). "If

an absolute guarantee of safety were required, we have a difficult time envisioning a case

                                            23 

No. 31785-4-111
In re A.B.


in which the court could properly return a child to parental custody. Even the mythical

perfect parent cannot guarantee anything." David B. v. Superior Court, 123 Cal. App.

4th 768, 797, 20 Cal. Rptr. 3d 336 (2004).

        The examples of past safety issues proved in this case do not establish by clear,

cogent, and convincing evidence that L.L. had "a demonstrated inability to recognize

immediate or chronic concerns" that was unlikely to be remedied in the near future, if

ever.

                                 IV. Remaining Challenges

        Given our decision that the department failed to demonstrate two of the

termination factors, we need not address L.L. 's additional challenge to a third termination

factor (that continuation of the parent and child relationship clearly diminishes the child's

prospect for early integration into a stable and permanent home, as required by RCW

13.34.180(1).

        It follows necessarily from the department's failure to demonstrate the statutory

factors that it has failed to demonstrate L.L. ' s current unfitness, which due process

requires be proved before the State can terminate her relationship with A.B. See In re

Dependency ofK.R., 128 Wn.2d 129, 141-42,904 P.2d 1132 (1995) (holding that

Washington's termination statute implicitly requires evidence of current parental

unfitness, comporting with constitutional due process requirements).




                                             24
No. 31785-4-II1
In re A.B.


       Because the department has not met its burden in the fact-finding phase of

terminating L.L.'s rights, we need not reach the dispositional phase designed to

separately address L.L.'s best interests. See A.B., 168 Wn.2d at 926 (holding it premature

to address the second phase before resolving the first).

       We reverse and remand for vacation of the order terminating L.L.'s parental

rights. We note that the dependency remains in effect and that the department may file

another petition to terminate.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




Brown, 1.




                                             25 

