 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Parental Rights to
                                                   No. 79561-9-I
 U.D.W.,
 D.O.B. 09/15/2015                                 DIVISION ONE

 STATE OF WASHINGTON,                              UNPUBLISHED OPINION
 DEPARTMENT OF SOCIAL AND
 HEALTH SERVICES,

                      Respondent,

              V.


 FELTON MARSHALL WARNER,

                     Appellant.

                                                   FILED: November 18, 2019

      APPELWICK, C.J.   —   On remand from this court, the trial court reconsidered

whether termination of Warner’s parental rights was appropriate based on the

parental deficiencies of which he had notice. The court again found that it was in

U.D.W.’s best interests that Warner’s parental rights be terminated. It based this

finding in part on Warner’s inability to provide for U.D.W.’s basic needs or the

additional care he requires. Warner argues that he did not receive adequate notice

that his inability to meet U.D.W.’s special needs was a parental deficiency that

would be considered as a basis for terminating his parental rights. We affirm.
No. 79561-9-1/2


                                       FACTS

           U.D.W. was born on September 15, 2015. His father is Felton Warner, and

his mother is Takiria Raton. When U.D.W. was an infant, Child Protective Services

(CPS) became involved with the family after receiving a report about an alleged

domestic violence incident. In re Dependency of U.D.W., No. 77991-5-I, slip. op.

at 1 (Wash Ct. App. Nov. 13, 2018) (unpublished), http://www.courts.wa.gov/

opinions/pdf/779915.pdf. CPS uncovered concerns about Warner and Raton’s

drug use, safety issues, and prior violence. Id. at 1-2. In early January 2016, a

fight broke out among Warner’s family members at the home of Raton’s mother.

ki. at 2. U.D.W. was present in the home at the time. ki. Warner was arrested.

Id. He later pleaded guilty to domestic violence assault of his mother. Id.

       On January 12, 2016, the Department of Social and Health Services

(Department) filed a dependency petition.1 U.D.W. was removed from Warner and

Raton’s care that same day. He has not lived with either parent since that time.2

Id.

       In April 2016, a dependency was established as to Warner. In the order of

dependency, Warner agreed that U.D.W. was dependent under RCW 13.34.030

for two reasons: (1) because he was unavailable to parent due to his incarceration,

and (2) because he needed to resume drug and alcohol treatment. The trial court



       1 On July 1, 2018, all powers, duties, and functions of the Department of
Social and Health Services pertaining to child welfare services were transferred to
the Department of Children, Youth, and Families. RCW43.216.906(1).
       2 The trial court terminated Raton’s parental rights on December 6, 2017.

She is not a party to this appeal.

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No. 79561-9-1/3


ordered Warner to engage in drug and alcohol treatment, random urinalysis

testing, parenting classes, and a domestic violence assessment.

         In June 2016, Warner moved the trial court to place U.D.W. with his

stepmother. The trial court denied the motion, partly due to medical documentation

from U.D.W.’s doctor that he should not be moved to a different placement. U. D.W.

has breathing issues, and it was recommended that he not be around anyone that

had been smoking, or has the smell of smoke on their clothing. Before a visit with

U.D.W. in July 2016, Lisa Lopez, a social service specialist with the Department,

spoke with Warner. She reiterated the importance of not smoking or being around

people that are smoking before seeing U.D.W.

         In the year after the dependency was established, Warner participated in a

drug evaluation, intermittent drug treatment, and urinalysis testing. U.D.W., No.

77991-5-I, slip. op. at 2.      However, he failed to complete a drug and alcohol

treatment program, did not consistently participate in urinalysis testing, and did not

remain consistently drug free. k~. Warner twice enrolled in parenting classes, but

was unable to complete either session. ki. at 2-3. He was unable to maintain

stable housing.      j~ at 3.     And, he never completed a domestic violence

assessment. k~. Warner’s frequent short-term periods of incarceration impeded

his ability to complete court-ordered services. ki.

       Through visitation, Warner maintained a generally positive relationship with

U.D.W.      k1.   But, during the dependency, he was unable to regularly and

consistently visit U.D.W. due to his frequent arrests and periods of incarceration.

Id.


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        In April 2017, the Department filed a petition to terminate Warner’s parental

rights. In the petition, the Department stated,

        The father’s parenting deficiencies include lack of parenting skills,
        domestic violence, ongoing criminal activity, substance abuse
        issues, and lack of safe and stable housing. Services offered to the
        father have included a drug/alcohol evaluation and treatment,
        random [urinalysis] testing, parenting classes, a domestic violence
        evaluation and treatment, and casework management.
        The Department also summarized Warner’s pattern of failing to complete

court-ordered services. It stated that, at the time, he was in custody after being

arrested for possession of a stolen vehicle and identity theft. It stated that he had

taken multiple urinalysis tests in 2016 that tested positive for drugs, including

marijuana, methamphetamines, morphine, oxycodone, and oxymorphine. And, it

noted that he had failed to visit U.D.W. on a regular basis, “partly due to

incarceration and inpatient treatment.”      For these reasons, the Department

concluded, “[T]he father does not understand and is incapable of providing for the

child’s emotional, physical, mental, and developmental needs.         The father is

incapable of safely parenting the child: He has not demonstrated the ability to care

for his child.”

        Despite maintaining a generally positive relationship with U.D.W., there

were reports of concerning behavior by Warner during visits. For example, on July

14, 2017, he had a visitation supervised by Lan Kirkland. During the visit, Kirkland

had to intervene when Warner was feeding U.D.W. U.D.W. is a high medical risk

child and eats and drinks in a very specific way to avoid issues. He has problems

with swallowing and must have thickened liquids to avoid aspiration.            At the



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No. 79561-9-1/5


beginning of the visit, Warner was told that U.D.W. had to eat solid food first and

then wait before drinking liquids. However, he tried to give U.D.W. a bottle in the

middle of eating solid food. Kirkland immediately told Warner to get the bottle out

of U.D.W.’s mouth. Warner told Kirkland that it “was his kid and to chill.” Kirkland

had to threaten to end the visit twice before he followed her instructions.

       After the visit, the trial court conditioned Warner’s visitation on complying

with directions for proper feeding. It stated that the Department would provide

instructions in writing.   Marcia Hall, another visitation supervisor, had highly

detailed instructions from U.D.W.’s foster mother on how to feed him.              Hall

conveyed this information to Warner. A copy of an August 2017 letter with feeding

instructions from the Sherwood Learning Center was also kept in the traveling file

for Warner’s visits. Hall gave warner a copy of the letter and discussed it with him

on multiple occasions.

       At the December 2017 trial on the Department’s petition, Warner testified

that he was aware of U.D.W.’s medical issues.           Specifically, he testified that

U.D.W. was at risk of getting fluid in his lungs, had problems swallowing solid

foods, and had a high risk of choking. U.D.W.’s special medical needs also include

a sensitivity to smoke due to respiratory issues. Warner testified that he was aware

of U.D.W.’s sensitivity to smoke, including marijuana.

       Warner was in jail when the trial commenced. He was released after the

first two days of trial. He testified that, after his release, he smoked marijuana with

his brother.




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No. 79561-9-116


            The social worker assigned to the case testified that she did not believe

Warner was fit to parent his son. She stated in part,

        [HJis drug and alcohol issues have not been properly addressed.
        Therefore, if he continues to use, which he reported that he used
        when he was released from jail, that could impact the development
        of [U.D.W.], and also and also limit his ability to act appropriately
                                 --


        and follow through with [U.D.W.]’s special medical needs, or impair
        his ability, I should say.
She explained that U.D.W. “needs routine medical care that’s going to be followed

up on, and it can’t be compromised by someone who is under the influence of any

kind of mind-altering substance.” She also stated that “if a parent is not available

due to being incarcerated, that also leaves [U.D.W.] subject to being in the care of

someone else who may not know all of [U.D.W.]’s special needs.”

        The trial court terminated Warner’s parental rights. In its findings, the court

identified Warner’s problems with anger and violence as a deficiency he failed to

correct that rendered him unfit to parent.         It also found little likelihood that

conditions would be remedied so that U.D.W. could be returned to Warner in the

near future.

        Warner appealed the order terminating his parental rights to this court.

U.D.W., No. 77991-5-I, slip. op. at 5. He argued in part that he was denied due

process because he was not notified during the dependency that his inability to

control anger would be considered as a basis for terminating his parental rights.

Id. at 6.

        On appeal, the Department argued that notice was sufficient because it was

evident that Warner’s anger played a role in other parental deficiencies, such as



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No. 79561-9-1/7


domestic violence and inability to care for his child. ki. at 7-8. But, this court found

that there was nothing in the record to suggest that Warner was aware of an

“inextricable connection that would allow notice of one issue to suffice for the

other.”     ki. at 8.   The Department also argued that, because of actions the

Department took in response to problematic incidents, Warner knew that it was

concerned about his behavior.           Id.   But, this court noted that “knowledge of

evidentiary facts does not equate to knowledge of the parental deficiencies the

Department will rely on.” ki. It held that the trial court’s reliance on Warner’s anger

issues was error and remanded the case back to the trial court. ki. at 9. It directed

the court to “consider whether termination is appropriate on the basis of the

parental deficiencies of which the father was properly notified.” j~ at 9.

          On remand, the trial court again terminated Warner’s parental rights. It

stated,

          Because of all of his issues, including frequent arrests and ongoing
          criminal activity, lack of compliance with and poor attendance at
          services such as parenting classes and drug and alcohol treatment,
          lack of safe, stable housing, his ongoing drug/alcohol addiction,
          unaddressed domestic violence problem, and an inability to maintain
          a stable living environment, the court finds the father is currently unfit
          to parent [U.D.W.].
The court also entered the following finding of fact:

          This child’s special needs [are] important factor[s] in determining his
          best interests and termination of the father’s parental rights. This
          child has health issues that require significant attention and care.
          The father has not shown an ability to provide for even the basic
          needs of a child, much less the additional care required by this child.
          Because of this, and each of the findings listed above, it is in the best
          interest of the child that the parental rights of [Warner] be terminated
          under RCW 13.34.180 and .190.



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No. 79561-9-1/8


       Warner appeals.

                                    DISCUSSION

       Warner argues that he was not notified during the dependency that his

inability to meet U.D.W.’s special needs would be considered as a basis for

terminating his parental rights. As a result, he contends that the trial court violated

his right to due process by basing its termination order in part on this deficiency.

       Parents have a fundamental liberty interest in the care, custody, and

management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 71 L. Ed. 2d 599 (1982). Parental rights cannot be abridged without due

process of law. In re Dependency of A.M.M., 182 Wn.App. 776, 790-91, 332 P.3d

500 (2014). The due process protections afforded to parents in a termination

hearing include notice and time to prepare and respond to charges.                In re

Dependency of H.W., 70 Wn. App. 552, 555 ni, 854 P.2d 1100 (1993). Such

notice is necessary “‘to prevent surprise, helplessness, and disadvantage.”

A.M.M., 182 Wn. App. at 791 (quoting In re Welfare of Martin, 3 Wn. App. 405,

410, 476 P.2d 134 (1970)). Whether a proceeding satisfies due process is a

question of Iawthatwe reviewde novo. In reWelfareofJ.M., l3OWn. App. 912,

920, 125 P.3d 245 (2005).

      Warner relies on A.M.M. There, the trial court terminated Knopif’s parental

rights based in part on her lack of knowledge regarding her children’s

developmental needs. A.M.M., 182 Wn. App. at 792. It also cited her “significant

substance abuse” and “unavailability and lack of follow through.”          ki.   Knopff

argued on appeal that she was not notified before trial that her lack of knowledge


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No. 79561-9-1/9


regarding her children’s developmental needs constituted a parental deficiency on

which termination could be based. ki. at 791. Therefore, she contended that her

due process right to adequate notice was violated. jç~ at 790.

       This court noted that neither the termination petition nor the dependency

petition stated that Knopif’s lack of knowledge regarding her children’s

developmental needs constituted a parental deficiency. Id. at 792. And, although

the services the State provided to Knopif included age-appropriate parenting

classes, there was no evidence that she was informed that she could lose her

parental rights if she did not adequately familiarize herself with her children’s

developmental needs. kI. As a result, this court held that Knopif was not given

adequate notice of this parental deficiency. ki. It reversed and remanded the case

with instructions for the trial court to consider whether termination was appropriate

based on the parental deficiencies of which Knopif had notice. ki. at 792-93.

       The Department points out that in In re Parental Rights to F.M.O., 194 Wn.

App. 226, 232, 374 P.3d 273 (2016), this court rejected the argument that only the

parental deficiencies identified in the termination petition can serve as a basis for

termination. The F.M.O. court noted that, in most instances, “termination is the

endgame in lengthy proceedings where the parties have wrestled over the needed

services during the previous years and there is no question what deficiencies are

truly at issue.” Id. It therefore found that “it serves only form instead of substance

to rigidly require notice be provided in the termination petition itself.” içj~. However,

F.M.O.’s mother was not notified until trial that her recurring incarceration was a

parental deficiency she needed to defend against. ki. at 227, 232-33. Thus, this


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No. 79561-9-1/10


court held that the trial court erred in including incarceration in the list of proven

deficiencies. ki. at 227, 233.

       Warner argues that, like A.M.M., neither the dependency petition nor the

termination petition identified his inability to meet U.D.W.’s special needs as a

parental deficiency. But, the termination petition stated that Warner’s parental

deficiencies included a lack of parenting skills. The petition went on to state that

there was little likelihood that conditions would be remedied so that U.D.W. could

be returned to Warner in the near future. In doing so, it concluded, “[T]he father

does not understand and is incapable of providing for the child’s emotional,

physical, mental, and developmental needs. The father is incapable of safely

parenting the child. He has not demonstrated the ability to care for his child.” The

reference to U.D.W.’s emotional, physical, mental, and developmental needs

necessarily included any needs specific to U.D.W., such as those relating to his

health issues.

       Beyond the termination petition, multiple people, including visitation

supervisors and a social worker with the Department, discussed U.D.W.’s health

issues with Warner. In July 2016, Lopez reiterated to Warner the importance of

not smoking or being around people that are smoking before seeing U.D.W. In

July 2017, Kirkland informed Warner that U.D.W. had to eat solid food first and

then wait before drinking liquids. Despite this instruction, Warner tried to give

U.D.W. a bottle in the middle of eating solid food, and Kirkland had to intervene.

The trial court then conditioned Warner’s visitation on complying with directions for

proper feeding. A letter with feeding instructions was kept in the traveling file for


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No. 79561-9-I/il


Warner’s visits. Hall discussed the letter with Warner multiple times. And, Warner

testified at trial that he was aware of U.D.W.’s medical issues, including his

problems with swallowing foods and sensitivity to smoke.

       Warner also contends that he was “never ordered to engage in services

designed to address parenting the child’s special needs as part of the dependency,

and he was never offered these by the Department as reunification services.” But,

as discussed above, the trial court conditioned Warner’s visitation on complying

with directions for proper feeding. It stated that the Department would provide

these instructions in writing. A letter with feeding instructions was then kept in the

traveling file for his visits, and a visitation supervisor recalled giving him a copy of

the letter. She also discussed the letter with him multiple times. The Department

also offered Warner parenting classes as part of the dependency. Warner was

clearly on notice that his inability to care for U.D.W., including his inability to care

for U.D.W.’s special needs, like proper feeding, was a parental deficiency at issue

in the termination proceeding.

       The trial court’s finding that Warner had not shown an ability to provide for

U.D.W.’s basic needs or the additional care he requires was not a reference to a

new topic. Unlike F.M.O., he did not learn for the first time at trial that his inability

to care for U.D.W.’s special needs was a parental deficiency he needed to defend

against. Warner was aware of U.D.W.’s medical issues. The Department stated

in the termination petition that Warner lacked parenting skills. It also stated that

he was incapable of providing for U.D.W.’s emotional, physical, mental, and

developmental needs. U.D.W.’s medical issues and feeding requirements were


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No. 79561-9-1/12


discussed with Warner multiple times. The trial court even conditioned Warner’s

visits on his compliance with properly feeding U.D.W.

       Warner had adequate notice that his inability to care for U.D.W.’s special

needs was a parental deficiency at issue. Accordingly, he fails to establish a due

process violation.

       We affirm.




WE CONCUR:




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