                                                                         1LED
                                                                    COURT OF APPEALS
                                                                       DIVISMA 11

                                                                   2013 APR -2 AM S: 49

                                                                    SATE OF VIASHINGfi0N

                                                                    BY—




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

In re the Welfare of:                                             No. 43048 7 II
                                                                            - -


N. ., 23/
 A 10/
    08
                                                                Consolidated with:


In re the Welfare of:                                             No. 43058-
                                                                      11-  4


Z. ., 18/
 B 02/
    07
                                                            UNPUBLISHED OPINION




       JOHANSON, A. . E.— trial court's termination of her parental rights. She
                 J. A.appeals the
                  C


correctly argues that insufficient evidence supports the trial court's finding that continuation of

her parent child relationship interferes with N. . and Z. .'
           -                                   A       s early integration into a stable and
                                                        B

permanent home. Accordingly, we reverse.

                                             FACTS


       E. . is the mother of Z. and N. . Both children were placed in foster care in 2010 and
        A                     B      A

found dependent on the State on June 14, 2010. As the assigned social worker, Ashley Mangum

was responsible for finding a placement for the children and setting up services for the parents.

The trial court held permanency hearings to decide placement for the children in December 2010

and November 2011.      Mangum   asked E. .to refer to her any relatives who
                                        A                                      might be   a   placement
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          - -




resource for the children. E. .failed to successfully complete the court-
                            A                                           ordered services, except

she did complete a 28 day inpatient drug treatment program at Sea Mar.
                      -                                           -

       s termination trial began in January 2012, while Mangum was still searching for a
       E. .'
        A

permanent placement for the children.            At the time, Mangum was considering permanent

placement with either E. .'
                      s aunt or the girls' current foster parents. Mangum testified that it
                       A

would be best for the children to be adopted because the girls had been in foster care for 20

months and had bonded together. She explained that E. .' of stability and emotion control
                                                   s lack
                                                    A

and inability to make good decisions would not make her a safe parent for the girls.

       But, Mangum did not think the girls were prepared for E. .'
                                                             s rights to be terminated.
                                                              A

Mangum explained that E. . had consistently shown up for visits, and the girls seemed bonded
                       A

with E. , recognized E. . as their mother, sought her attention, responded to her, and looked
      A               A

forward to her visits. Mangum recommended continued hands on parenting programs and also
                                                          -

explained that she had investigated E. .'
                                    s maternal grandmother as a placement, and was still in
                                     A

the process of gathering background information about E. .'
                                                      s aunt.
                                                       A

       At trial, parenting coach LaShanda Green testified that E. . engaged with the girls at an
                                                                A

appropriate level for their age and she did not have safety concerns, but that E. . was unable to
                                                                                A

control her anger at times and was very reactionary. E. .'
                                                     s mother testified to her belief that
                                                      A

E. . took
 A          good   care   of the   girls. Last, the guardian ad litem testified that it would be in the

children's best interest to terminate E. .'
                                      s parental rights because the girls had already been
                                       A

dependent for 21 months.

       During closing arguments, the State argued:




                                                      0)
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                Continuation of the parent child relationship.
                                            /                    The girls are placed
         together. They're in a home that is willing to adopt them. There's also some
         relatives that have come,forward. Ms. Mangum has testified that those relatives
         who did come forward she's looked into. Right now there isn't a viable relative,
         that perhaps Ms. Carter might pan out, I don't know. But clearly, the parent child
                                                                                      /
         relationship prevents [Z. .] [N. .]
                                 B and     A from moving forward and being integrated
         into their home.


3 Verbatim Transcript of Proceedings (VTP) at 277. In response, E. . argued that it was too
                                                                 A

early to grant the request to terminate parental rights, that she had engaged in some services and

was willing to complete them, and that the State had not fully explored relative placement

options.

         The court terminated E. .'
                              s rights, specifically finding E. .to be an unfit parent for N. .
                               A                              A                             A

and Z. .
     B        Orally, the court found that the State satisfied factors "(
                                                                        d)" e)"
                                                                          and "( of RCW

180(
13. 4.but
   1
   3 )                   it did not address factor "( The court entered
                                                    f)."                      a written finding that

continuance of the parent child relationship clearly diminishes the child's prospects for early
                          -

integration   into   a   stable and permanent home." Clerk's    Papers (CP) at 74.    The court was


especially concerned that E. .did not take parenting feedback well, that she was mean, and that
                           A

she had issues controlling anger. The court then found that because E. . did not make progress
                                                                     A

in the 12 months prior, it saw little likelihood that she would learn how to parent in a timely

manner. E. .appeals.
         A

                                             ANALYSIS


          E. . appeals the trial court's order terminating her parental rights, arguing that the court
           A

erred because the State did not prove that continuation of her parental relationship would

1
    The trial court did not expressly reference this statute by number, but it is apparent from the
record.



                                                   3
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diminish her children's prospects for   early integration      into   a   permanent and stable home. She

argues that there is no evidence that E. .'
                                      s relationship with her daughters would interfere with
                                       A

their stability because (1) A.has consistently visited her daughters and the girls look forward
                           E.

to the visits, 2)
               ( Mangum was still investigating placements for the girls, and (3) girls are not
                                                                                 the

prepared for the separation.

       The State responds, relying on In re Dependency ofJ.C., argue that DSHS did not have
                                                             to

to demonstrate that a relationship with E. .will diminish the girls' prospects of early integration
                                         A

into a stable home because it adequately demonstrated that there is little likelihood that

conditions can be remedied so the children can return to the parent in the foreseeable future. 130

Wn. d 418, 427, 924 P. d 21 ( 1996). The
  2                  2                              State asserts that when E. . failed to appeal the
                                                                             A

finding that there is little likelihood that conditions will be remedied in the future, she conceded

this fact. In   re
                     Dependency of K. .tells
                                   S.
                                    D          us                         S., 2d ,
                                                    that E. . is correct. K. .
                                                          A                D   Wn.                   294


P. d 695 (2013).
 3

                                       A. Standard of Review


        Parents have a fundamental liberty interest in the custody and care of their children.

Santosky v. Kramer, 455 U. . 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); re
                         S                                                     In

Dependency of K. . 171 Wn. d 568, 574,
              J., 2
               N                                          257 P. d 522 ( 2011).
                                                               3                     The legislature has
                                                                                     "

prescribed a statutory scheme that balances the parents' liberty interest with the child's right to a
safe and healthy environment."K. .294 P. d at 699 (citing In re Welfare of4. ., Wn. d
                              S., 3
                               D                                          - B 168 2

908, 919, 232 P. d 1104 (2010)). order for the State to terminate parental rights, it must prove
               3              In




                                                     in
No. 43048 7 I1/
          - -
No. 43058 4 I1
          - -




the six elements in RCW 13. 4.by clear, cogent, and convincing evidence. In re Welfare of
                        180
                          3

C. ., Wn. d 51, 55, 25 P. d 953 (2010);
 S 168  2         2     3             RCW 13. 4. RCW 13. 4.
                                          180(
                                             1 and
                                             3 )     a)(
                                                     190(
                                                        i).
                                                        1)(
                                                        3

       Evidence is clear, cogent, and convincing when the evidence shows that the fact in issue

is highly probable. In re Dependency of KR., Wn. d 129, 141, 904 P. d 1132 (1995).The
                                           128 2                  2

court must then find by a preponderance of the evidence that termination is in the child's best

interest. K. .171 Wn. d at 576 77;RCW 13. 4.On appeal, deference is given to
          J., 2
           N                   -      b).
                                      190(
                                         1)(
                                         3

the trial court that had the benefit of having the witnesses before it. In re Welfare ofAschauer,

93 Wn. d 689, 695, 611 P. d 1245 ( 1980). The
     2                  2                             trial court's findings must not be disturbed

unless clear, cogent, and convincing evidence does not exist in the record."K. ., Wn. d at
                                                                             R 128  2

144.


                                        B. Sufficiency of Evidence

       The State must prove the following six factors to terminate parental rights: (a) child
                                                                                       the

is dependent, b) court has entered a dispositional order, c) child has been removed from
              ( the                                       ( the

the parent's custody for at least six months pursuant to a dependency finding, d) necessary
                                                                               ( all

services which could correct the parental deficiencies have been offered, ( there is little
                                                                          e)

likelihood that the parental condition can be remedied in the near future, and (f)
                                                                                 continuation of

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

a stable and permanent home. RCW 13. 4.1)(f).
                                 180 ( a) -(
                                   3

       The   State's sole argument is that if it satisfied its burden of proving RCW

13. 2. necessarily had proved
e),
180(
   1)(
   3  it                                     RCW      13. 4. This argument was recently
                                                      f).
                                                      180(
                                                         1)(
                                                         3

rejected by our Supreme Court.




                                                  M
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          In K. .the Supreme Court explained that the State must prove each element of RCW
             S.,
              D

180(
13. 4.before a trial court may terminate parental rights under RCW 13. 4.
   1
   3 )                                                             a)(
                                                                   190(
                                                                      i).
                                                                      1)(
                                                                      3

S., 3d at 701. The court based its decision in part on In re K. .decided three years
K. .
 D 294 P.                                                    C.,
                                                              S

after J.C.,
          where, although RCW 13. 4.
                              e)
                              180(
                                 1)(
                                 3 was satisfied, it nonetheless analyzed whether

the State had proved the allegation codified in RCW 13. 4.KS. ., Wn. d 918,
                                                    f).
                                                    180(
                                                       1)( 137
                                                       3    C      2

928, 976 P. d 113 ( 1999); D.294 P. d
          2              S., 3
                         K.                    at 701.   The Supreme Court reasoned that if a

finding    under   RCW   f)
                         180(
                         13. 4. necessarily followed from a finding under RCW
                            1)(
                            3

e),
180(
13. 4.
   1)( not have needed to review this issue. K. .294 P. d at 701.
   3 they would                              S., 3
                                              D

          The Supreme . Court also noted that facts supporting a conclusion under RCW

e) do not necessarily, support a conclusion under RCW 13. 4.
180(
13. 4.
   l)(
   3  may, but                                        f)
                                                      180(
                                                         1)(
                                                         3

In J. . , for
    C           example, the fact that the mother was unlikely to change behaviors that had

psychologically destabilizing effects on her children also supported a determination that

continuation of their relationship clearly diminished the likelihood that the children would be

emotionally and psychologically prepared to integrate into a stable and permanent home if and

when one became available. But the existence of overlapping facts does not relieve the State of

its burden of proving RCW 13. 4.
                          f) RCW 13. 4.And where
                          180(
                             1 independently of
                             3 )(               e).
                                                180(
                                                   1)(
                                                   3

facts do not overlap, little reason exists to tie a finding under RCW 13. 4. a finding
                                                                      f)
                                                                      180(
                                                                         1 to
                                                                         3 )(

under RCW 13. 4. S., P. d at 701.
          e).
          180(
             1)(294 3
             3  KD.

          The Supreme Court in K. . also recognized that treating the two factors individually
                               S.
                                D
also comports with the rules of statutory construction: "` [ t
                                                           I]    is a .fundamental principle of

statutory construction that courts must not construe statutes so as to nullify, void or render




                                                n
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meaningless   or   superfluous   any section   or   words' of the statute." K. .294 P. d at 701
                                                                            S., 3
                                                                             D

quoting Taylor v. City ofRedmond, 89 Wn. d 315, 319, 571 P. d 1388 (1977)).
                                       2                  2               Accepting the

State's interpretation of J. . renders RCW 13. 4.
                           C               f)
                                           180(
                                              1)(
                                              3  superfluous because, under its view,

no showing needs to be made to prove RCW 13. 4. long as RCW 13. 4.
                                         f) 180(
                                         180(
                                            1)(
                                            3 as            e)1)(
                                                              3  is

proved. K. .
        S., 3d at 701.
         D 294 P.

       The Supreme Court in K. .held that the State must independently prove each element
                            S.
                             D

in RCW 13. 4.before a trial court may order the termination of parental rights under
       180(
          1
          3 )

RCW   13. 4. Evidence may support more than one element found within RCW
      a)(
      190(
         i).
         1)(
         3

180(
13. 4. But proof of the element codified in RCW 13. 4.
   1
   3 ).                                         e) necessarily
                                                180(
                                                   1)(
                                                   3  does not

prove the element codified in RCW 13. 4.To terminate parental rights, the trial court
                                  f).
                                  180(
                                     1)(
                                     3

must find that the State has proved each of the six statutory elements.. D.
                                                                       S., 3
                                                                       K. 294 P. d at 701.

       Here, the State does not attempt to argue that there are sufficient facts to uphold the trial

court's finding that continuation of the parent child relationship interferes with an early
                                                -

integration into a stable and permanent home. .Instead,the State argues that it does not need to
                                                        _

prove factor ( ) they proved factor ( ). light of K. . State's argument fails.
             f if                   e In          S.,
                                                   D the

       We turn then to whether sufficient facts support factor (f). conclude that the State
                                                                  We

failed to prove by clear, cogent, and convincing evidence that maintaining a relationship with

E. . would be detrimental to N. . and Z. .'
 A                            A       s early integration into a stable and permanent
                                       B

home. There is very little evidence in the record describing E. .'
                                                             s relationship with her children.
                                                              A

The testimony that exists supports a conclusion that the parent child relationship was strong, and
                                                                -

not harmful in any way. Social worker Mangum testified that she did not think the girls were



                                                      7
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prepared       s rights to be terminated.
           for E. .'
                A                                Mangum explained that E. . had consistently
                                                                        A

showed up for the visits and the girls seemed bonded with E. ,recognized E. . as their mother,
                                                           A              A

sought her attention, responded to her, and looked forward to her visits. In contrast, there was no

testimony that the children had a detrimental relationship with E. . or that continuation of the
                                                                 A

parent child relationship would interfere with their early integration into a stable and permanent
       -

home. Accordingly, insufficient evidence supports the trial court's finding that continuation of

the parent child relationship interferes with the children's early integration into a permanent and
           -

stable home.


       Reversed.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                                  Johanson,A. .
                                                                           J._
                                                                           , C
We concur:




                     j orgen, J.
