                                                                            FILED
                                                                          APRIL 4, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                             DIVISION THREE

In the Matter of the Parental Rights to      )
                                             )         No. 35979-4-III
M.S.D.,                                      )         (Consolidated with
                                             )         No. 35980-8-III;
                                             )         No. 35981-6-III;
In the Matter of the Parental Rights to      )         No. 35982-4-III)
                                             )
H.G.D.,                                      )
                                             )         UNPUBLISHED OPINION
                                             )
In the Matter of the Parental Rights to      )
                                             )
S.F.D.,                                      )
                                             )
                                             )
In the Matter of the Parental Rights to      )
                                             )
N.L.M.,                                      )
                                             )

       KORSMO, J. — A father appeals orders terminating his parental relationship with

his four minor children, arguing that not all necessary services were provided to him and

that he received ineffective assistance of counsel. We affirm.

                                          FACTS

       John D. (J.D.) is the natural father of minor children M.S.D., H.G.D., S.F.D., and

N.L.M. The Department of Social and Health Services (DSHS) filed dependency
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


petitions for all four children; in October 2015, the court found the children to be

dependent. The court identified J.D.’s parental deficiencies as lack of parenting skills, an

inability to provide a safe and stable home, and having mental health, anger, and

substance abuse issues. The court also ordered J.D. to participate in 1) a drug/alcohol

treatment program, 2) random urinalysis (UA), 3) a parenting assessment, 4) an anger

management assessment, and 5) mental health counseling. The court required supervised

visitation between J.D. and the children. Both parents were required to maintain regular

contact with DSHS and provide contact information.

       In February 2017, DSHS filed termination petitions for all four children. The

petitions proceeded to a bench trial. For various reasons, J.D. only attended one

afternoon of the trial. Neither he nor the children testified. S.F.D. and N.L.M. were

represented by counsel at the trial.

       Four social workers were assigned to the case during the dependency. Nora

Guerra was the DSHS social worker assigned to the children’s cases from July 2015 to

June 2016. Guerra testified that she referred J.D. to providers of drug and alcohol

assessment, random UAs, parenting assessment, anger management, and mental health

counseling, but that J.D. did not participate in any of those services. While Guerra was

involved in the cases, J.D. was homeless but was working with an agency to find

housing. He eventually did obtain an apartment with her assistance, but was later



                                              2
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


evicted. She testified that while she was assigned to the cases, J.D. had not made

significant progress in correcting his deficiencies as a parent.

       The other DSHS social workers assigned to the children’s cases were Arnell Garza

(August 2016 to February 2017), Rachel Beckstrom (February to July 2017), and Ashlee

Nelson (July to October 2017). Similar to Guerra, each would testify that he or she

reminded J.D. about the need to participate in services, offered J.D. each service, and that

J.D. made little or no attempt to participate. J.D. would not provide his address to any of

them. He also regularly failed to attend meetings with them and often missed scheduled

visits with the children.1 Each would opine at trial that termination was in the best

interests of the children because it was not likely J.D. would correct his parental

deficiencies.

       When asked what effect the irregularity of visitation had on the children,

Beckstrom responded that N.L.M. and S.F.D. told her that they did not want to attend

visits because they felt their parents did not care about them. She further testified that the

children were doing well in foster care, and that “[t]hey explained that they felt safe and

comfortable.” When asked whether the children spoke to her about their long-term living

arrangements, Beckstrom responded that the children told her they wanted to be adopted.


       1
        Nelson calculated that between February and July 2017, J.D. missed 20 of 29
scheduled visits with the children. Elizabeth Monk, a visitation supervisor, testified that
between August and December 2017, J.D. attended only 3 of 12 available visits with the
children.

                                              3
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


       Beckstrom related that a few times during visitation, J.D. “got very upset with the

kids and would yell, used inappropriate language, lie, would talk about the case

information.” When asked how this behavior affected the children, Beckstrom responded

that they were stressed and N.L.M. and S.F.D. begged not to go to visits. In describing

the nature of visitation, Beckstrom testified that N.L.M. told her she did not want to

attend visits because her parents were lying that they were trying to get her back. J.D.’s

counsel did not object to Beckstrom’s testimony.

       Counsel for S.F.D. and N.L.M. asked Nelson what N.L.M. told her about

visitation. Nelson responded that N.L.M. told her that she would have preferred not to

attend visits. J.D.’s counsel did not object to Nelson’s testimony.

       Nancy Lysher was the guardian ad litem (GAL) assigned to S.F.D., H.G.D., and

M.S.D. from July 2015 through the bench trial. She met with J.D. more than 10 times.

J.D. never asked her for help in accessing services, nor did he inquire into the well-being

of his children. Other than the apartment he had briefly, J.D. did not provide Lysher with

a home address. Lysher also testified that J.D. did not consistently attend scheduled

visits with the children. In explaining the effect of the inconsistency, she said, “I think

one of them said to me at one time, ‘I really just go for the junk food and the playing.’”

       When asked if the children had commented on the idea of adoption, Lysher

responded, “They want to be adopted. They’ve talked about it and have talked about

what their name change will be and—and what life would be like.”

                                              4
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


          On March 23, 2018, the court terminated the parent-child relationship between

J.D. and the children. The court again identified inability to provide a safe and stable

home as one of J.D.’s parental deficiencies. The court found that the necessary services

had been adequately offered and that termination was in the best interests of the children.

          J.D. timely appealed to this court. A panel considered the matter without oral

argument.

                                           ANALYSIS

          J.D. contends that the State failed to offer all necessary services, and that he

received ineffective assistance of counsel. We address the two contentions in the order

stated.

          Necessary Services

          J.D. argues that the State did not offer him all necessary services because it did not

offer housing services. We agree with the trial court that all necessary services were

offered.

          In order to terminate a parent-child relationship, the State must prove the six

elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. In re

Dependency of K.N.J., 171 Wn.2d 568, 576-577, 257 P.3d 522 (2011). The only element

at issue in this appeal is:

          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

                                                 5
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


       foreseeable future have been expressly and understandably offered or
       provided.

RCW 13.34.180(1)(d). “Clear, cogent, and convincing evidence exists when the ultimate

fact in issue is shown by the evidence to be ‘highly probable.’” In re K.R., 128 Wn.2d

129, 141, 904 P.2d 1132 (1995) (quoting In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831

(1973)). “The court’s factual findings 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 Dependency of K.S.C., 137 Wn.2d 918, 925, 976

P.2d 113 (1999). “‘Substantial evidence exists if the record contains evidence of

sufficient quantity to persuade a fair-minded, rational person of the truth of the declared

premise.’” World Wide Video Inc. v. Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991).

       J.D. challenges only DSHS’s failure to provide housing services. However, while

the trial court identified inability to provide stable housing as a parental deficiency, it did

not order J.D. to participate in housing services. Similarly, J.D. never contended at the

termination trial that housing services were necessary and made no attempt to establish or

argue that position to the trial court. Therefore, housing services were not necessary

services under RCW 13.34.180(1)(d), and the State was not obligated to offer them.

       Moreover, Ms. Guerra did assist J.D. in obtaining public housing, although he was

evicted soon thereafter. There was little more that DSHS could have done for him.




                                               6
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


       Accordingly, clear, cogent, and convincing evidence supports the court’s

determination that DSHS offered all necessary services.

       Assistance of Counsel

       J.D. next argues that his counsel provided ineffective assistance by failing to

object to hearsay testimony from the social workers and GAL. He fails to establish that

his counsel was ineffective.

       “At all stages of a proceeding in which a child is alleged to be dependent, the

child’s parent, guardian, or legal custodian has the right to be represented by counsel.”

RCW 13.34.090(2). “[T]he right to counsel attaches to indigent parents in termination

proceedings by way of RCW 13.34.090(2).” In re Welfare of J.M., 130 Wn. App. 912,

921, 125 P.3d 245 (2005). “This right derives from the due process guaranties of article

I, section 3 of the Washington Constitution as well as the Fourteenth Amendment.” Id.

“[I]n every case in which the right to counsel attaches—legal representation means

effective representation.” Id. at 922. “A claim of ineffective assistance of counsel

presents a mixed question of fact and law reviewed de novo.” State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009).

       In order for a court to terminate a parent-child relationship, the State must prove

by a preponderance of the evidence that termination is in the best interests of the child.

In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016); RCW

13.34.190(1)(b).

                                              7
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


       Hearsay is inadmissible unless a rule or statute provides otherwise. ER 801.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER

801(c). The children’s statements relayed by the social workers at trial were made out of

court, and at least some of them were offered to prove the matters asserted in the

statements. However, even if counsel erred by not objecting to the hearsay testimony, the

deficiency did not prejudice J.D.

       Washington courts have applied two different standards to ineffective assistance

claims in dependency cases. See J.M., 130 Wn. App. at 921-922. Under a Sixth

Amendment standard, a defendant must show that counsel’s performance was deficient,

and that counsel’s errors deprived defendant of a fair trial. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under the due process standard

articulated by this division, assistance is ineffective if counsel’s errors prevent a

meaningful hearing. In re Moseley, 34 Wn. App. 179, 184, 660 P.2d 315 (1983). We

decline to decide which standard applies because J.D. has not shown that he received

ineffective assistance under either standard.

       “To establish prejudice [under Strickland], a defendant must show that but for

counsel’s performance, the result would have been different.” State v. McNeal, 145

Wn.2d 352, 362, 37 P.3d 280 (2002).

       Even if the court had excluded the alleged hearsay statements here, the result of

the trial would have been the same. Other evidence overwhelmingly supported the

                                                8
No. 35979-4-III; No. 35980-8-III; No. 35981-6-III; No. 35982-4-III
Parental Rights to M.S.D., H.G.D., S.F.D., & N.L.M.


court’s conclusion that termination was in the best interests of the children. The social

workers assigned to the cases observed J.D. make no progress in correcting his identified

parental deficiencies; J.D.’s participation in court ordered services was limited to

attending one parenting or domestic violence class, J.D. never inquired as to the well-

being of his children, J.D. regularly missed scheduled visits with his children, J.D.

committed crimes and was incarcerated before and during dependency, and J.D. was

absent for the majority of the termination trial. No evidence indicated that J.D. was

willing or able to remedy his parental deficiencies. On the other hand, the testimony

indicated that the children were thriving in the care of their foster parents, and that their

welfare would be best served by adoption into a permanent home. Even without the

hearsay testimony, a preponderance of the evidence shows that termination was in the

children’s best interests.

       A meaningful hearing under Moseley “means, at a minimum, the opportunity to

argue the strengths of one’s own position and to attack the State’s position.” J.M., 130

Wn. App. at 925. “Defendant’s failure to object to a violation of due process and his own

use of hearsay during argument constitute[s] a waiver of any right of confrontation and

cross examination.” State v. Nelson, 103 Wn.2d 760, 766, 697 P.2d 579 (1985). “The

probationer may not sit by, without objection (and in fact use similar hearsay evidence),

and then on appeal for the first time claim lack of due process.” Id.



                                               9
No. 35979-4-111; No. 35980-8-111; No. 35981-6-111; No. 35982-4-111
Parental Rights to MS.D., H.G.D., S.F.D., & N.L.M


       J.D. had a meaningful hearing because his counsel confronted DSHS's witnesses

and argued that the required services were not understandably offered and that

termination was not in the children's best interests. He waived any argument that he was

denied his due process right to cross-examine witnesses because he did not raise this

issue to the court.

       J.D. has not established, under either standard, that his counsel provided

ineffective assistance.

       Affirmed.

       A majority of the panel has determined 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:


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