                                                                  FILED 

                                                                Dec. 15,2015 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


In the Matter of the Termination of:            )         No. 32829-5-111
                                                )
                                                )
                                                )         PUBLISHED OPINION
R.M.P.t                                         )
                                                )
                                                )

        LAWRENCE-BERREY, J. -       RCW 13.34. 136(2)(b)(i)(B) protects a disabled person's

parental rights by requiring the Department of Social and Health Services (Department) to

make reasonable efforts to consult with the Developmental Disabilities Administration

(DDA) to create an appropriate permanency plan to reunite parent and child. The primary

question on appeal is whether this subsection, enacted after the dependency proceeding

ended, applies to the related termination proceeding so that the Department's failure to

consult with the DDA requires reversal of the parental termination order. We answer the

primary question no, reject the parent's secondary arguments, and affirm the trial court's

termination order.


        t For purposes of this opinion, the minor child's initials are used in place of her
name.
No. 32829-S-II
In re Term. ofRMP


                                               FACTS

       A.     Events leading to dependency

       R.M.P. was born May 21,2008. Her mother is S.S.B., and her father is D.B.I The

Department received two referrals involving this family prior to the referral establishing

this dependency. On February 11, 2008, the Department first received concerns from a

person who was not sure if S.S.B. was getting prenatal care, and was worried about

S.S.B.'s severe cognitive issues and S.S.B.'s capability to care for the child. The

Department did not investigate this referral. On July 12, 2011, the Department received

the second referral from two people, one of whom was a former roommate of S.S.B. and

D.B. The referents reported roaches, rats, and rotten food in the refrigerator because

S.S.B. and D.B. did not pay their utility bill, causing the utility company to shut off their

power. The referents described D.B. as a methamphetamine user, but could not

remember the last time he used. There were no concerns about drug use by S.S.B. The

referents reported D.B. would have parties in the home, but S.S.B. would not participate

in the drug use or drinking. Police came to the home and arrested D.B. several times for

domestic violence incidents between D.B. and S.S.B., and the police located two prior




       I D.B. is not a party to this appeal.

                                                 2

No. 32829-5-II
In re Term. ofRMP


restraining orders between D.B. and S.S.B. The Department did not investigate this

referral because it was unable to contact the family.

       On October 11, 2012, the Department received the referral leading to this

dependency case. The referent stated four-year-old R.M.P. had severe global delays and

functioned at a level of a two-year-old. The referent additionally stated R.M.P. was not

toilet-trained, had no language skills, her teeth were rotten, had poor hygiene, had head

lice, ate with her hands, and did not know how to wash her hands. A child protective

services (CPS) worker visited RM.P.'s home on October 12,2012, and confirmed the

allegations in the referral. The CPS worker also observed the home was unsanitary, had

unknown debris on the floor, dishes piled in the kitchen, and food was sitting in the living

room with flies on it, which S.S.B. indicated RM.P. was eating. S.S.B. stated R.M.P. had

not been to the doctor since June 2011, and thought R.M.P.'s speech problems would

improve on their own. The CPS worker's impression was S.S.B. did not seem overly

concerned about her daughter's teeth. RM.P. had bruises on her right ear, and three deep

bruises on different spots on her leg. The Department took RM.P. into protective

custody and placed her in licensed foster care. D.B. moved out of the home, and S.S.B.

moved in with a family member.




                                             3

No. 32829-5-11
In re Term. ofRMP


       The Department filed the dependency petition on October 16,2012, and assigned

Loni Conklin as the social worker. Ms. Conklin met with S.S.B. and the two talked about

whether or not she was receiving DDA services, and focused on the domestic violence

between S.S.B. and D.B. Based on that meeting, Ms. Conklin formulated a service plan

for S.S.B. that included domestic violence counseling at the YWCA, early head start

services with R.M.P., and individual parenting classes with Nancy Riggle at Valley

Residential Services. This plan also required S.S.B. to obtain stable housing, attend

visitations, maintain monthly contact with the Department, and set up an assessment with

the DDA. S.S.B. began these services. On February 28, 2013, S.S.B. entered into an

agreed order of dependency and the trial court ordered the same services Ms. Conklin

outlined in her original service plan.

       B.     S.S.B.'s engagement with services

       For the first year after the Department took R.M.P. into protective custody, S.S.B.

briefly lived with a family member, then stayed at a homeless women's shelter until she

moved in with her grandmother. S.S.B. did not maintain contact with Ms. Conklin during

this year, tended to change her number frequently to avoid being harassed by D.B., and

did not always communicate her new number to the Department.




                                            4

No. 32829-5-11
In re Term. ofRMP


       From December 7,2012, to June 30,2013, S.S.B. attended weekly parenting

instruction classes with Nancy Riggle. During her initial assessments Ms. Riggle

determined R.M.P., who was then four years old, functioned between 18 and 24 months

developmentally-less than the first percentile-had severe 10-hour temper tantrums, and

had no usable speech except the word no. Ms. Riggle worked with S.S.B. and R.M.P.

together to develop structure and routine. S.S.B. completed 50 percent of her homework

from the time she started working with Ms. Riggle through February 2013, and was

completing 75 percent of her homework by March 2013.

       Visitation occurred in three-hour sessions three days per week. S.S.B. attended

nearly all visitations, and the court appointed special advocate (CASA) for R.M.P.

testified S.S.B. was not always at fault for the occasional visit she missed. Ms. Conklin

testified the visitation quality was quite good. However, R.M.P. would exhibit very

significant behavioral issues after visits and revert back to her old behaviors, such as

pulling her hair, head-banging, and eating off the Hoor.

       On March 13,2013, the Department took R.M.P. from her foster parent in Walla

Walla and placed her with R.M.P.'s paternal grandmother in Clarkston, and the court

adjusted visitation to a six-hour session every other Saturday. S.S.B.'s progress in

services declined dramatically after R.M.P. went to Clarkston. Ms. Riggle stopped



                                              5

No. 32829-5-II
In re Term. ofRMP


classes with S.S.B. a few months afterward. Ms. Riggle testified, "[S.S.B.] just really lost

her fire to continue working with me," and S.S.B. only completed 26 percent of her

homework those last few months. Report of Proceedings (RP) at 33. Because S.S.B. was

not making any progress toward the end of their sessions, Ms. Riggle believed another

provider would be more successful and did not request a contract extension from the

Department. Ms. Riggle believed S.S.B. would benefit from continued training, but not

with her. The Department did not refer S.S.B. for additional parenting instruction

servIces.

       In the summer of 20 l3, S.S.B. began attending individual domestic violence

counseling at the YWCA. S.S.B. attended regularly, until early 2014 when S.S.B.'s

counselor resigned from her position. The YWCA counselor told the CASA that S.S.B.

"still was really stuck on fantasies of having a happy family and being an amazing mother

and that it was hard for her to get off ofthat and think about what needed to happen

next." RP at 138.

       On October 24,2013, S.S.B. independently requested parenting classes from

Children's Home Society. She attended 26 classes with a parent aide from December 5,

20l3, to July 24,2014. These classes did not involve R.M.P. because Children's Home

Society did not have the financial resources to travel to Clarkston.



                                             6

No. 32829-5-II
In re Term. ofRMP


       Ms. Conklin arranged two, two-hour meetings between S.S.B., herself, and the

CASA. The meetings occurred March 15 and March 21,2014. These meetings were

specifically designed to determine whether S.S.B. could articulate what R.M.P.'s very

unique and special needs were because ofR.M.P.'s developmental delays. From these

meetings, Ms. Conklin concluded S.S.B. was unable to describe what a day in the life of

RM.P. would look like and how she would address R.M.P.'s special needs, such as

brushing R.M.P.'s teeth, getting her to school and therapy appointments, or how S.S.B.

would respond if RM.P. got sick.

       R.M.P. began improving drastically after the Department initially placed her in

care. The foster parent toilet-trained R.M.P. in a weekend, worked on R.M.P.'s speech

issues, and taught R.M.P. to brush her teeth. The paternal grandmother regularly took

RM.P. to therapy, and the motor, speech, and language reports from St. Joseph Regional

Medical Center all indicated R.M.P. was improving. The CAS A testified at trial that

RM.P. "has made great progress. She can use language to express her wants and her

needs," that she has "personally ... seen great progress in [R.M.P.'s] gross motor

skills.... She moves more age appropriately now." RP at 51-52. R.M.P. "is no longer

pulling her hair out, and her behavior is less extreme, and she is fitting in better." RP at

53-54. The CASA testified R.M.P. made great progress since the Department put her in



                                              7

No. 32829-5-II
In re Term. ofRMP


foster care, but still functions at a three-year-old level in terms of language and speech,

and "is still seriously behind kids of her age" cognitively. RP at 52.

       C.       Termination

       The Department filed the termination petition on April 23, 2014. The Department

requested a psychological evaluation from Dr. Ronald Page, a licensed clinical

psychologist, requesting his opinion on various questions. 2 In his report dated May 6,

2014, Dr. Page stated S.S.B. has an IQ of65, and functions within the bottom two percent

of the population. In addition, Dr. Page diagnosed S.S.B. with mild mental retardation,

avoidant personality disorder, and cyclothymia. Dr. Page's report concluded, "[t]o be an



       2 The Department's questions for Dr. Page were:
               1. What is [S.S.B. 's] current health profile, including diagnoses of
       any disorders that may impact her ability to safely parent with her
       significantly [sic] other?
               2. Do you believe [S.S.B.J is able to #1 identity the developmental
       needs of her daughter and #2 manager [sic] her daughter's needs on a daily
       basis (i.e. coordinate educational, medical, and therapeutic services
       necessary for her daughter)?
               3. Do you feel that [S.S.B.] has the mental capacity, in terms of
       focus and comprehension, to learn, utilize, and maintain adequate parenting
       practices?
               4. Is her tendency to minimize and/or avoid information about her
       daughter's and her own developmental delays an indicator of future neglect
       and/or abuse and how would that impact her ability to parent on a daily
       basis?

Ex. 2 at 8-9.

                                              8

No. 32829-5-II
In re Term. ofRMP


adequate parent for her daughter I believe [S.S.B.] will continue to need close oversight

and assistance at least during the next few years." Ex. 2 at 10.

       The tennination trial occurred September 9-10, 2014. Dr. Page testified about his

psychological evaluation ofS.S.B and his reported findings. He concluded that S.S.B.

could not currently parent R.M.P. safely. Dr. Page explained that S.S.B.'s cyclothymia

makes her unstable emotionally and prone to short-lived bouts of anger or happiness, and

that her avoidant personality disorder causes her to lack self-confidence. He also

explained that S.S.B.'s low IQ limits her ability to solve novel problems, to assimilate

complex skills, to multi-task, and to deal with more than one significant responsibility.

Dr. Page acknowledged that while S.S.B. is bonded, affectionate, and appropriate in many

respects in visiting her daughter, S.S.B. does not address the problems and issues that

come up in an effective problem-solving fashion. Dr. Page testified to the additional

services S.S.B. would need to parent R.M.P., and the length of time it would likely take

for S.S.B to complete the services:

      [The length of time to complete the services] depends on the consistency of
      her effort. I'm a little pessimistic that she would follow through for more
      than a year or two. I think it would take a year or two of consistent effort
      on her part to at least demonstrate to me that she can maintain a path .

             . . . [Such services would be] for enhancing ego strength and adapted
      [repertoire], [and] would not necessarily be focused on parenting
      exclusively. It would be focused on her skill base; learning, getting a

                                             9

No. 32829-5-11
In re Term. ofRMP


       driver's license, if that were appropriate, earning her GED, learning job
       skills, improving her literacy and mathematical skills, attending a women's
       support group for assertion training, developing skills ... for [raising]
       herself [sic] worth. . .. [S]he obviously would need pretty close mentoring
       for a long time .... Optimistically, I think a year or two.

RP at 19.

       Ms. Riggle testified she believed "[S.S.B.] made progress," but did not know

whether "the progress [was] enough to justifY them being together as mother and child."

RP at 36. Ms. Riggle did not think R.M.P. could overcome her "very significant delays"

if she lived in S.S.B.'s home. RP at 43. The CASA concluded that while there "is a

significant bond between mother and daughter," termination was in R.M.P.'s best interest,

as "[t]he skill level and the intensity and the severity of [R.M.P.'s] need[s] is still, I think,

beyond what [S.S.B.] can do." RP at 59, 56.

       Ms. Conklin acknowledged S.S.B. was in compliance with all court orders at the

time of the termination trial, and had also been in compliance at the April 11, 2014 review

hearing. Ms. Conklin testified S.S.B. was unfit to parent R.M.P., as she did not believe

that S.S.B. was able to take on the responsibilities of parenting on a regular daily basis

without reverting back to the reasons that R.M.P. was removed from the home in the first

place. Ms. Conklin believed it would take S.S.B. between three and five years to remedy

her parental deficiencies and that this was too long. All of the Department's witnesses


                                               10 

No. 32829-5-II
In re Term. ofRMP


testified S.S.B. had shown insufficient progress and would either have difficulty

parenting or be incapable of parenting if R.M.P. were returned home in the near future.

       S.S.B. testified at trial. She testified she does all her own cooking, cleaning, and

manages her own finances. She ended her relationship with D.B. when the Department

took R.M.P. into protective custody and has not had any other romantic relationships

since the dependency started. She testified she has a strained relationship with R.M.P.'s

parental grandmother-the grandmother with whom R.M.P. is currently placed-because

when the parental grandmother found out S.S.B. was pregnant in 2008, the grandmother

alleged the baby was not her son's child and drove S.S.B. from Lewiston, Idaho, to Walla

Walla and left her at a bus stop. S.S.B. concluded she had benefited from her services at

the YWCA, Children's Home Society, and from Ms. Riggle, and believed she had made

progress as a parent and could successfully parent R.M.P. S.S.B.'s uncle, Frank Blair,

briefly testified he and the rest of S.S.B.'s family are involved and would support S.S.B.

going forward.

      Following presentation of the evidence and closing arguments, the trial court

granted the Department's petition to terminate S.S.B.'s parental rights to R.M.P. In

ordering termination, the trial court found that the Department had established each of the

six elements contained in RCW 13 .34.180(1) by clear, cogent, and convincing evidence.


                                             11 

No. 32829-5-II
In re Term. ofRMP


The findings specifically listed the services offered or provided to S.S.B., and also listed

the specific reasons supporting the trial court's finding that conditions could not be

remedied so R.M.P. could be returned to S.S.B. in the near future. In addition, the court

found that S.S.B. was unfit to parent, and termination was in R.M.P.'s best interests.

       S.S.B. appeals. 


                                         ANALYSIS 


       "Parents have a fundamental liberty and privacy interest in the care and custody of

their children." In re Welfare ofA.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995).

Thus, terminating parental rights should be allowed only "for the most powerful reasons."

Id. (internal quotation marks omitted) (quoting In re Sego, 82 Wn.2d 736, 738, 513 P.2d

831 (1973)).

       Washington courts use a two-step process when deciding whether to terminate

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

RCW 13.34.180(1); RCW 13.34.190). First, the Department must show that the statutory

requirements in RCW 13 .34.180(1) are established by clear, cogent, and convincing

evidence. Id. Second, the Department must show that termination is in the best interests

of the child by a preponderance of the evidence. Id. (citing RCW 13.34.190). Only if the

first step is satisfied may the court reach the second. Id.


                                              12
No. 32829-5-II
In re Term. ofRMP


       The requirements ofRCW 13.34.180(1) that must be satisfied by clear, cogent, and

convincing evidence are:

               (a) That the child has been found to be a dependent child;
               (b) That the court has entered a dispositional order pursuant to
       RCW 13.34.130;
               (c) That the child has been removed ... from the custody of the
       parent for a period of at least six months pursuant to a finding of
       dependency;
               (d) That the services ordered under RCW 13.34.136 have been
       expressly and understandably offered or provided and all necessary
       services, reasonably available, capable of correcting the parental
       deficiencies within the foreseeable future have been expressly and
       understandably offered or provided;
               (e) That there is little likelihood that conditions will be remedied so
       that the child can be returned to the parent in the near future.
               (f) That continuation of the parent and child relationship clearly
       diminishes the child's prospects for early integration into a stable and
       permanent home.

       A. 	      Whether the Department'sfailure to consult with the DDA to create an
                 appropriate plan for services in this case constitutes a failure ofproof
                 under RCW 13.34. 1BO(J)(d)

       S.S.B. contends that the Department failed to show it provided all necessary

services as required by RCW 13.34.180(1)(d). Her argument relies on

RCW 13.34.136(2)(b)(i)(B). Subsection (B), effective June 12,2014, provides in

relevant part:

       If a parent has a developmental disability ... and that individual is eligible
       for services provided by the [DDA], the department shall make reasonable
       efforts to consult with the [DDA] to create an appropriate plan for services.

                                               13 

No. 32829-5-II
In re Term. ofRMP


RCW 13.34.l36(2)(b)(i)(B). S.S.B. argues that the trial court was required to apply that

subsection to the termination proceeding because the subsection was effective prior to the

September 2014 termination order. S.S.B. further argues that because the Department did

not consult with the DDA when creating the service plan, the Department failed to show

it offered or provided all necessary services as required by RCW 13.34.180(1)(d).

       In support of her argument, S.S.B. relies on In re Dependency ofA.MM., 182 Wn.

App. 776, 332 P.3d 500 (2014). There, theA.MM court discussed the impact of

RCW 13.34.180(1)(1)'s amendments becoming effective during the course of the

termination trial. The amendment required the trial court to consider whether an

incarcerated parent maintained a meaningful role in his or her child's life, and whether

the Department made reasonable efforts in assisting the incarcerated parent Likely

because the amendment wa's so recent, the trial court failed to consider the new factor in

its termination order. The A.MM court held that the recent amendment applied to the

termination proceeding, so that the trial court's failure to consider the new factor in its

termination order required reversal of the order. A.MM., 182 Wn. App. at 787. We

disagree that RCW 13.34.136(2)(b)(i)(B), which was not effective until after the

dependency ended, applies to the Department's proof in this termination proceeding.




                                              14 

No. 32829-5-II
In re Term. ofRMP


       RCW l3.34.136 is entitled "Permanency plan of care." By its terms,

RCW 13.34.136 is concerned with the permanency plan for services ordered by the court

during a dependency proceeding. Here, the dependency proceeding had ended and the

termination proceeding had commenced two months prior to the June 12,2014 effective

date of the amendment. In the absence of statutory authority, we will not imply that the

legislature intended trial courts to dismiss a termination proceeding and reinstitute a

dependency proceeding to comply with a new permanency plan standard.

      Moreover, S.S.Bo's reliance on A.MM. is misplaced. In A.MM., the court

addressed the legislature's amendment to RCW l3.34.180(1)(1), which applies to

termination proceedings. Here, the legislature amended RCW 13.34.136, which applies

to dependency proceedings. We hold that the 2014 amendment to RCW l3.34.136 does

not affect the Department's proof in this termination case because the amendment was not

effective until June 2014, two months after the dependency proceeding ended.

      B. 	    Whether the Department's failure to offer or provide the services identified
              in Dr. Page's testimony requires reversal ofthe termination order

      S.S.B. argues that the Department's failure to offer or provide the services

identified by the Department's psychologist, Dr. Page, constitutes a failure of proof that

all necessary services were offered or provided, as required under RCW 13 .34.180( 1)(d).
No. 32829-5-11
In re Term. ofRMP


       Toward the end of its direct examination of Dr. Page, the Department asked what

services S.S.B. might need and the length of time it would take to remedy her parental

deficiencies. Dr. Page described numerous services designed to improve S.S.B's skill

base and self-esteem. However, he expressed doubt as to whether S.S.B. could provide

the consistent effort needed to successfully complete the services.

       S.S.B. counters that despite her considerable limitations, she strived to do

everything that the Department asked of her. She attended and timely arrived at

scheduled visitations and meetings. She participated in parenting instruction, attended

domestic violence classes through the YWCA for six months, and even secured

independent housing for herself soon after the dependency ended.

      The trial court considered and weighed all of this evidence at trial, and while

acknowledging S.S.B.'s progress, found:

      ... [D]ue to the mother's developmental disabilities, there is no treatment
      that would render the mother capable ofparenting in the near future.
      While she has made some very slow progress during the nearly two years
      since the child's placement, that progress is insufficient to remedy the
      parental deficiencies that led to placement, the mother is still currently unfit
      to parent and it is unlikely that she will be fit to parent in the near future.

Clerk's Papers at 41 (Finding of Fact 2.3(e)(33)) (emphasis added).

      S.S.B. cites In re Dependency ofH. w., 92 Wn. App. 420, 961 P.2d 963 (1998), to

support her argument that the Department cannot establish futility. In H   w., the mother
                                             16 

No. 32829-5-11
In re Term. ofRMP


was developmentally disabled and qualified for services from DDA. Id. at 426 n.7. The

mother in H. W. had only been provided services for three to four months and expert

testimony supported her ability to learn. Id. at 426,428. In contrast, here, the

Department spent 18 months from late October 2012 through late April 2014 providing

services to S.S.B. Moreover, although the parents in both cases suffered from a very low

IQ, S.S.B. faced the additional challenges of having diagnosed disorders and R.M.P.,

herself, was a special needs child. Finally, and significantly, none of the experts at trial

testified that S.S.B. could learn to be an adequate parent in the near future. We conclude

that sufficient evidence supports the trial court's determination that the Department

showed by clear, cogent, and convincing evidence that it offered or provided all necessary

services to S.S.B., and that the additional services testified to by Dr. Page would have

been futile.

       C. 	    Whether the trial court erred in finding terminating S.S.B. 's parental rights
               was in R.MP. 's best interests

       S.S.B. argues that the Department did not show, by a preponderance of the

evidence, that terminating S.S.B's parental rights was in R.M.P.'s best interests. When

the factors ofRCW 13.34.180(1) are proved by clear, cogent, and convincing evidence,

the trial court must determine whether the State proved by a preponderance of the

evidence that termination is in the child's best interests. A.B., 168 Wn.2d at 911. Though

                                              17 

No. 32829-5-II
In re Term. ofRMP


it is never easy to terminate parental rights when the parent cares for the child and desires

to be a good parent, the overriding goal of a termination proceeding is to serve the child's

best interests. In re A. W, 53 Wn. App. 22,32-33, 765 P.2d 307 (1988).

       Here, S.S.B. has been unable to correct her parental deficiencies throughout 18

months of dependency proceedings. Dr. Page stated in his report that S.S.B. "could

conceivably mature emotionally to the point of adequacy. However, it may not be a

reasonable risk in the best interest of her daughter to assume that [she] now has reached a

turning point, and would not regress." Ex. 2 at 10. Dr. Page testified that S.S.B. has not

shown she could satisfactorily care for R.M.P.'s heightened therapeutic, educational, and

medical needs.

       As for R.M.P., she has greatly improved since the Department placed her in care

with her paternal grandmother. The grandmother regularly takes R.M.P. to therapy, and

the motor, speech, and language reports from     st. Joseph Regional Medical Center all
indicate RM.P. is dramatically improving. The CASA testified that RM.P. has made

great progress, and can now use language to express her wants and her needs. The CASA

also testified, "At this point I think [RM.P.'s] current placement with the grandmother in

Clarkston is in her best interest. . .. [T]he needs that I've just detailed ... are there,

with the backup for medical and education and all of those resources that are being


                                               18 

No. 32829-5-II
In re Term. ofRMP


utilized.... At this point I'm not seeing those factors possible in [S.S.B.'s] living

situation." RP at 57.

       Ms. Conklin also testified termination was in R.M.P.'s best interests. Ms. Conklin

testified that R.M.P. exhibits very significant behavioral issues after visits, and that

keeping the parent/child relationship legally alive diminishes R.M.P.'s ability to integrate

into a safe, stable, and permanent home. We hold there is substantial evidence to support

the trial court's finding that termination is in R.M.P.'s best interests.

       Affirmed.




                                                      Lawrence-Berrey, J.

WE CONCUR: 





                                               19 

