                                                      This opinion was filed for record

                                                     at   5: OD {Myl on&¢: <r,. 21)! Lf
                                                             SUSAN L. CARLSON
                                                             Supreme Court Clerk




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                           )
 In the Matter of the Parental Rights to   )       No. 91757-4
                                           )
K.M.M.                                     )        EnBanc
                                           )
                                           )        Filed --~SE_P__0_8_"_20_16~-
~~~~~--~~~~~)

      Yu, J.-This case requires us to determine whether parental rights may be

terminated where a father is unable to parent his child due to a lack of attachment

and continuing the parent-child relationship will be detrimental to the child's

emotional development and mental well-being.

      The child has been in foster care since she was six and a half years old. She

was removed from her biological parents' custody in 2009 because their serious

substance abuse problems resulted in a neglectful home enviromnent. She was 11

years old at the time of trial in 2013 and will be 14 years old this coming August.

She has been in two foster care placemtmts and was physically abused in one of

those placements.

      It is undisputed that the father completed court-ordered services and

remedied the deficiencies identified by the dependency court in prior proceedings.
In re Parental Rights to K.MM, No. 91757-4

Nevertheless, the trial court terminated his parental rights based on its conclusion

that he remains "unable to parent" due to the child's lack of attachment to him.

Clerk's Papers (CP) at 112.

      There is substantial evidence to support the trial court's conclusion that all

necessary services have been provided to the father and that the provision of any

additional services would be futile. Furthermore, the record supports the trial

court's finding of current parental unfitness based on the father's inability to parent

the child. Consequently, we affirm the Court of Appeals decision to uphold the

termination order.

                         FACTUAL & PROCEDURAL HISTORY


A.    DEPENDENCY

      The child, K.M.M., was born on August 8, 2002. She will be 14 years old as

of August 2016 and has been in foster care for six and a half years-almost half of

her life. Since May 2012, K.M.M. has refused to have contact with her father, J.M.

(the appellant in this case), and her mother, D.C. (who is not a party on appeal).

K.M.M. has expressed her desire to be adopted by her foster parents, whom she

refers to as "mommy" and "daddy." 2 Verbatim Report of Proceedings (VRP) at

282, 303.

       K.M.M. and her younger sister K.M. were removed from their parents'

custody in February 2009, following an emergency room visit where it was



                                           2
In re Parental Rights to K.MM, No. 91757-4

suspected that K.M. had been physically abused by J.M. CP at 106, 123. The

hospital staff also had concerns that the parents were misusing prescription opiates.

!d. at 58. The parents' substance abuse problems created a neglectful home

environment. !d. at 106. K.M.M. testified that she had to "take care of [her] sister

and pretty much change her diaper." 2 VRP at 283. Although ultimately no

allegations of abuse were confirmed, D.C. and J.M. agreed to dependency for their

daughters on the grounds that neither of them was able to care for the children due

to their substance abuse problems. CP at 58; RCW 13.34.030(6)(c).

      K.M.M. 's early dependency was marked by instability. The original

permanency plan was for K.M.M. and her sister to return to their parents' custody

just a few months later. 4 VRP at 653. However, both parents relapsed and went

into inpatient treatment, so the children had to remain in foster care. !d.

      K.M.M.' s first foster placement was an abusive one. It was discovered later

that the foster mother spanked K.M.M. with a wooden spoon to punish her for

things like running late for school. 2 VRP at 201-02, 290. K.M.M. and her sister

were removed from the foster home in July 2009 after the foster mother was

hospitalized for a "mental breakdown." CP at 59. They were then placed with

K.M.M. 's current foster parents.

       When K.M.M. was first placed with her foster parents, she was "emotionally

disconnected," and "very quiet, non-engaging." 2 VRP at 182. She would hide



                                           3
In re Parental Rights to K.MM, No. 91757-4

underneath furniture when she had minor accidents, like spilling mille !d. at 184,

202, 290. The foster parents arranged for individual therapy, and K.M.M. began

seeing Cory Staton in September 2009. K.M.M. presented "significant social,

emotional and developmental delays" when she entered dependency. CP at 107.

K.M.M. had not learned to form secure attachments to adults, meaning that she did

not lmow how to rely on adult caregivers. 1 VRP at 64. These attachment

problems were exacerbated by the inappropriate corporal punishment that K.M.M.

experienced in her first foster home. CP at 107. K.M.M. was also "parentified,"

meaning she tried to take care of her younger siblings rather than relying on adults.

1 VRP at 64.

      Once in a more stable environment and with regular therapy, K.M.M. was

able to catch up developmentally. !d. at 113. However, her relationship and

experiences with her biological parents continued to remain unpredictable. In

2010, an attempt to return K.M.M. to D.C.'s custody failed when D.C. had another

relapse. 4 VRP at 651. Additionally, K.M.M. 's younger half-sister K.C., who was

born while D.C. was undergoing treatment for her substance abuse, was eventually

removed from the mother's custody and brought into foster care with K.M.M. and




                                          4
In re Parental Rights to K.MM, No. 91757-4

K.M. 1 Id. The guardian ad litem (GAL) testified that this indicated to K.M.M. that

things were not going well with her mother. I d.

       In early 2011, K.M.M. expressed to her therapist, Ms. Staton, that she

wanted to be adopted. 1 VRP at 78. Ms. Staton took no action in response to this

statement and did not disclose the information to the Department of Social and

Health Services (Department) because she determined that K.M.M.'s desire to be

adopted was evidence of her emotional healing and developing ability to form

attachments to adults. I d. at 79; CP at 126.

       In late 2011, K.M.M. began "acting out" during visits with her father by

"picking on him" and being confrontational. 4 VRP at 658. In March 2012,

K.M.M. expressed reluctance to continue visitation with her parents. CP at 61.

Soon after, K.M.M. began ending visits early and eventually refused visitation

altogether. 1 VRP at 30.

       In response to K.M.M. 's refusal to participate in visitation, the dependency

court appointed family therapist Thomas Sherry in July 2012 to "render an opinion

on the appropriateness of visitation, and how such visitation can occur." CP at

324. Mr. Sherry recommended a plan for "natural contact" between K.M.M. and

her parents once her younger siblings were transitioned back into their mother's




       1
         All three children were eventually placed with K.M.M. 's current foster parents.
Parental rights to K.M.M. 's siblings are not at issue in this case.


                                                5
In re Parental Rights to K.MM, No. 91757-4

custody. 2 VRP at 237-39, 321-22. The plan was to facilitate passive contact

between K.M.M. and her parents that was incidental to her interactions with her

siblings. Id. at 239.

      The recommended natural contact plan was not implemented until October

2012, when K.M.M.'s younger siblings were returned to their mother's custody.

CP at 61 . K.M.M. expressed concern for her sisters' safety and worried about

whether she would also be removed from her foster parents. 1 VRP at 152-53.

K.M.M. had several natural contacts with her mother that involved minimal to no

interaction. 2 VRP 325-26. Even with limited interaction, K.M.M.'s foster parents

testified that she was very clingy after these visits and often regressed to baby talk.

Id. at 194.

       K.M.M. 's first and only natural contact with J.M. occurred in December

2012. Id. at 326. At this point, K.M.M. had not had any contact with her father for

approximately eight months. K.M.M. was hiding in the back of the van when it

arrived at the visitation site. Id. at 328. J.M. tried to engage with K.M.M. and

placed his hands on her shoulders. Id. at 329. K.M.M. became extremely upset,

and the social worker immediately terminated the visit. I d. K.M.M. testified that

she "felt very scared" during the interaction. I d. at 289. K.M.M. 's foster parents

recounted that K.M.M. was so upset after the incident that she was trembling and

regressed to baby talk for several days following the visit. Id. at 195.



                                           6
In re Parental Rights to K.MM, No. 91757-4

       After the natural contact with J.M. failed, the dependency court suspended

visitation with both biological parents. CP at 335. K.M.M. has not had any further

contact with either D.C. or J.M.

B.     TERMINATION PROCEEDINGS

       The Department first filed termination petitions for K.M.M. and her two

sisters in June 2011. Id. at 60. A termination trial was held in February 2012, but

the Department took a voluntary nonsuit after four days oftestimony in order to

attempt to work further with the parents to resolve their individual issues. Id. at

·48-49, 61. Specifically, there was additional work that needed to be done to

address J.M.'s mental health issues. 1 VRP at 20. 2

       Two years later, the Department again petitioned to terminate D.C.'s and

J.M.'s parental rights to K.M.M. 3 CP at 1-4. Following a five-day bench trial held

eight months later, the court terminated J.M. 's parental rights to K.M.M. I d. at

105-12, 115-38. The court found that all court-identified parental deficiencies had

been corrected and all necessary services had been provided. However, the court

concluded that "[b ]ecause the attachment bond no longer exists" between K.M.M.

and her father, J.M. is "unable to parent" her. Id. at 112.



       2
           According to the foster mother's uncontested testimony in the termination proceeding
presently at issue, K.M.M. was unaware of the first termination trial itself or the outcome ofthe
trial. 2 VRP at 214.
         3
           D.C. eventually relinquished her parental rights to K.M.M., and her parental rights were
terminated in January 2014. CP at 171-75. D.C. is not a party to this case.


                                                 7
In re Parental Rights to K.MM, No. 91757-4

       On appeal, the commissioner for the Court of Appeals affirmed the

termination order, concluding that the trial court's finding that J.M. was "unable to

parent" his daughter constituted an express finding of current parental unfitness.

The commissioner also affirmed the trial court's finding that the Department had

provided all necessary services to J.M. J.M. moved to modify the commissioner's

ruling. A three-judge panel for the Court of Appeals, Division Two, granted the

motion to modify and affirmed the termination order in a published opinion. In re

We(fare ofK.MM, 187 Wn. App. 545,349 P.3d 929 (2015). J.M. then filed a

motion for discretionary review with this court, which we granted. In re Welfare

ofK.MM, 184 Wn.2d 1026,364 P.3d 119 (2016). 4

                                         ANALYSIS

       Our role in reviewing a trial court's decision to terminate parental rights is to

determine whether substantial evidence supports the trial court's findings of fact by

clear, cogent, and convincing evidence. See In re Dependency ofK.S.C., 137

Wn.2d 918, 925, 976 P.2d 113 (1999). Because of the highly fact-specific nature

of termination proceedings, deference to the trial court is "particularly important."

In re Welfare ofHall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). We defer to the

trial court's determinations of witness credibility and the persuasiveness of the



       4
        J.M. filed a motion to accept additional evidence on review pursuant to RAP 9.11,
which was passed to the merits. We now deny the motion and decline to accept the additional
evidence submitted by J.M.


                                              8
In re Parental Rights to KM.M., No. 91757-4

evidence, and "its findings will not be disturbed unless clear, cogent, and

convincing evidence does not exist in the record." In re Dependency ofKR., 128

Wn.2d 129, 144, 904 P.2d 1132 (1995). We review de novo whether the court's

findings of fact support its conclusions oflaw. See In re Dependency of Schermer,

161 Wn.2d 927, 940, 169 P.3d 452 (2007).

      We recognize that parents have a fundamental liberty and privacy interest in

the care, custody, and companionship of their children. In re Welfare of Sumey, 94

Wn.2d 757, 762, 621 P.2d 108 (1980). However, this right is not absolute. It is

"well established that when parental actions or decisions seriously conflict with the

physical or mental health of the child, the State has a parens patriae right and

responsibility to intervene to protect the child." !d. at 762. Furthermore, our

legislature has declared that "[w]hen the rights ofbasic nurture, physical and

mental health, and safety of the child and the legal rights of the parents are in

conflict, the rights and safety ofthe child should prevail." RCW 13.34.020.

      Chapter 13.34 RCW creates a two-step framework for terminating parental

rights: first, the Department must show that it has satisfied its statutory obligations

pursuant to RCW 13.34.180(1), and then it must establish that termination of

parental rights would be in the child's best interests. In re Welfare ofA.B., 168

Wn.2d 908, 911, 232 P.3d 1104 (2010). The first step focuses on the adequacy of

the parents, while the second step looks at the child's best interests. !d.



                                           9
In re Parental Rights to K.MM, No. 91757-4

      A petition seeking termination of parental rights pursuant to RCW

13.34.180(1) must allege all of the following:

              (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 or will, at the time of the
      hearing, have 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.

The State must prove these allegations by clear, cogent, and convincing evidence.

RCW 13.34.190(1)(a)(i). This requires that the ultimate facts are shown to be

"'highly probable."' In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831

(1973) (quoting Supove v. Densmoor, 225 Or. 365,358 P.2d 510 (1961)).

      In addition to finding that the six statutory elements ofRCW 13.34.180(1)

have been satisfied, due process protections require that a court make a finding of

current unfitness before parental rights can be terminated. K.R., 128 Wn.2d at 142

(citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 71 L. Ed. 2d



                                          10
In re Parental Rights to K.MM, No. 91757-4

599 (1982)). This finding need not be made explicitly. Id. at 142-43. Satisfying

all six of the statutory elements raises an implied finding of parental unfitness. In

re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011).

      Once the court determines that the Department satisfied its requirements in

accordance with RCW 13.34.180(1 ), parental rights may be tenninated if doing so

is in the best interests of the child. RCW 13 .34.190( 1)(b). The Department must

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

evidence. A.B., 168 Wn.2d at 911.

       J.M. challenges the termination order on two grounds, one statutory and the

other constitutional. First, J.M. alleges that his parental rights cannot be

terminated because the Department failed to fulfill its statutory obligation to

provide all necessary services pursuant to RCW 13.34.180(1)(d). 5 Second, J.M.

claims that his right to due process was violated because the trial court failed to

make a proper finding of current parental unfitness.

A.     NECESSARY SERVICES

       The Department has a statutory obligation to provide all the services ordered

by the permanency plan, as well as "all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future."




       5
        .T.M. does not challenge the trial court's findings on any other requirements ofRCW
13.34.180(1).


                                              11
In re Parental Rights to K.MM, No. 91757-4

RCW 13.34.180(1)(d). "Necessary services" are not defined in the statute, but the

Department is required to specify in a permanency plan "what services the parents

will be offered to enable them to resume custody." RCW 13.34.136(2)(b)(i). We

have observed that "[ w]hen a 'condition' precludes reunion of parent and child, as

here, regardless of whether it can be labeled a 'parental deficiency,' the State must

provide any necessary services to address that condition as set forth in RCW

13.34.180(l)(d)." In re Welfare ofC.S., 168 Wn.2d 51,56 n.3, 225 P.3d 953

(2010). The Court of Appeals has relied on this statement to define "necessary

services" as those services "needed to address a condition that precludes

reunification of the parent and child." In re Dependency ofA.MM, 182 Wn. App.

776, 793, 332 P.3d 500 (2014) (citing C.S., 168 Wn.2d at 56 n.3). This definition

of"necessary services" is consistent with the plain language ofRCW

13 .34.180(1 )(d).

       The trial court found that "[a]ll services reasonably available, capable of

correcting the parental deficiencies within the foreseeable future, have been offered

or provided to the father with the exception of reunification services which if

provided are no longer capable of providing a solution." 6 CP at 107. J.M.,

however, asserts that the Department failed to fulfill its statutory obligations in


       6
         The trial court referred to "reunification services" and "reunification therapy" in its oral
and written rulings. CP at 107-08; 4 VRP at 706. However, J.M. specifically alleges that he did
not receive family therapy and attachment and bonding services. Pet'r's Suppl. Br. at 13.


                                                 12
In re Parental Rights to K.MM, No. 91757-4

accordance with RCW 13.34.180(1)(d) because he was never provided with

reunification services, specifically family therapy and attachment and bonding

services.

      1.     Family therapy was not a necessary service because it was never an
             appropriate service that could have been provided to J.M

      Although family therapy was not provided to J.M., the record shows that this

service was not reasonably available to him because a plan for reunification was

never recommended or implemented. According to the service providers who

testified, family therapy is not offered until reunification occurs, and the record

shows that J.M. never became stable enough for reunification with K.M.M.

Consequently, family therapy was never reasonably available to J.M.

      Following the initial termination trial in February 2012, additional services

were identified for J.M. Kristopher Richardson, the second social worker assigned

to K.M.M.' s case, testified that there "was a need to readdress mental health

services with the father. More work needed to be done on individual-level

objectives with the parents." 1 VRP at 20. According to Mr. Richardson, the

Department operates within a framework of first addressing a parent's individual-

level issues before providing services to address family-level issues. Id. at 20-21.

The parent is in a better position to deal with family-level concerns once individual

issues, like chemical dependency and mental health conditions, have been

addressed. I d. at 21. Within this framework, family therapy to address J .M. 's

                                          13
In re Parental Rights to K.MM, No. 91757-4

relationship with K.M.M. would not be appropriate until J.M.' s underlying mental

health issues had improved.

       The service providers consistently testified that J.M. 's mental health issues

continued to affect his ability to parent K.M.M. Although the Department worked

with J.M. to set up mental health services, J.M. had difficulty maintaining his

mental health treatment. J.M. eventually had regular treatment with David Walker,

but it is unknown what progress, if any, J.M. made in therapy because Mr. Walker

did not testify. 7

       Consistent with Mr. Richardson's testimony, Ms. Staton stated that it was

not her policy to work with biological parents in family therapy until reunification

was underway. I d. at 68. Once a child was in the process oftransitioning home, it

would be appropriate to work with the biological parents because they would

become "the caretakers meeting the child's needs." Jd. at 69. She further

explained that one of the prerequisites to family attachment therapy was that the

parent had worked through his or her own issues enough for the child to be

returned home. I d. at 138. This never occurred in K.M.M. 's case. I d.

       Similarly, after meeting with J.M. and K.M.M. separately to assess whether

visitation should continue, Mr. Sherry did not recommend reunification. He saw


       7
         Jennifer Martin, the GAL, testified that although Mr. Walker was available to continue
therapy, J.M. did not want to participate in therapy with him because Mr. Walker apparently
refused to testify on J.M. 's behalf at the termination trial. 4 VRP at 643.


                                               14
In re Parental Rights to K.MM, No. 91757-4

little possibility that K.M.M. would want to return to her parents' custody because

she was "adamant about not wanting visitation, period." 2 VRP at 226-27.

Although a dependency review hearing order did state that "[t]he father will

participate in family therapy with Thomas Sherry ... to address issues with

visitation," CP at 334, Mr. Sherry clarified in his testimony that his

recommendation for family therapy was not for reunification with the parents, but

to "maintain the sibling relationships" once the sisters were in different

placements, 2 VRP at 243, 246.

       Thus, because J.M. was unable to improve his underlying mental health

issues to the point where he could parent K.M.M., reunification was never more

than a theoretical possibility. Neither reunification nor family therapy was ever

recommended by the service providers or ordered by the dependency court.

Moreover, it was never contemplated that J .M. would be K.M.M. 's primary

caregiver. 8 CP at 109; 4 VRP at 653. Before the permanency plan was switched to

adoption, the plan was to return K.M.M. to her mother's custody, anticipating that

J.M. would have visitation with her. 4 VRP at 653. Family therapy was thus never



       8
           The concurrence disregards these facts and fails to acknowledge that .T.M. simply never
reached a point at which reunification services could have been provided. Moreover, it is clear
from the record that the Department did not become aware of K.M.M. 's lack of attachment until
she began resisting visitation with her father, at which point it was impossible to offer the
services the concurrence claims should have been offered. By attempting to shift the blame
entirely to the Department's shoulders, the concurrence fails to present the facts in their entirety
as they existed at the relevant time.


                                                 15
In re Parental Rights to K.MM, No. 91757-4

"reasonably available" to J.M., and it did not constitute a "necessary service"

within the meaning ofRCW 13.34.180(1)(d).

      2.     Attachment and bonding services were not necessary services because
             it would have been futile to provide them

      '"Where the record establishes that the offer of services would be futile, the

trial court can make a finding that the Department has offered all reasonable

services."' C.S., 168 Wn.2d at 56 n.2 (quoting In re Welfare ofMR.H, 145 Wn.

App. 10, 25, 188 P.3d 510 (2008)). The provision of services is futile where a

parent is unwilling or unable to participate in a reasonably available service that

has been offered or provided. See In re Dependency ofRamquist, 52 Wn. App.

854, 861, 765 P.2d 30 (1988); see also In re Welfare ofAschauer, 93 Wn.2d 689,

699 n.6, 611 P.2d 1245 (1980). Given the specific circumstances in this case, the

trial court correctly determined that providing attachment and bonding services

would be futile because J.M. would not have benefited from the services.

      Although J.M. was willing to participate in attachment and bonding services,

these services would not have been able to remedy K.M.M. 's lack of attachment.

K.M.M. could not tolerate interactions with her father and refused to attend

visitation. Thus, as a practical matter, K.M.M. would not be a willing participant

in any therapeutic services with her father. There was no way for the social

workers to force K.M.M. to participate in services, short of lying to her or using

physical force, which are both prohibited by department policy. 3 VRP at 448. As


                                          16
In re Parental Rights to K.MM, No. 91757-4

the trial court observed, "[K.M.M.] herself has taken the strong position that she

will not engage with her parents during visits and does not want to be a part of that

family." CP at 109.

      Additionally, there is no evidence in the record that attachment and bonding

services could have repaired J.M.'s relationship with K.M.M. Rather, the evidence

strongly supports the trial court's determination that the parent-child relationship

was beyond repair and any attempt to reunify K.M.M. with her father would be

detrimental and harmful to her. !d. Testimony from Ms. Staton and Mr. Sherry

amply supports the trial court's finding that "[K.M.M.] would suffer emotional

derailment of her progress, and any such attempt would likely compromise her

ability to begin to establish the other social and emotional stages she needs to go

through, such as developing an ability for empathy." !d. While it is possible that

attachment and bonding services might have prevented K.M.M. 's detachment from

her father had they been previously provided, we cannot go back in time to prevent

the damage from occurring.

      The futility of any additional services was further supported by J.M.' s

demonstrated lack of empathy for K.M.M. 's needs. When asked what was in

K.M.M.'s best interest, J.M. did not express any recognition that he needed to be a

better parent, but instead asserted that K.M.M.' s foster parents were "hindering her

return home." 3 VRP at 526. J.M. was willing to assign blame to the Department,



                                          17
In re Parental Rights to K.MM, No. 91757-4

foster parents, K.M.M. 's therapist, and his own therapists for the fact that

reunification never occurred, but he did not fully acknowledge the role that he

played in K.M.M.'s continued dependency. This mindset was further illustrated by

Mr. Sherry's testimony that J.M. did not seem to understand why reunification had

not yet happened. 2 VRP at 236. According to Mr. Sherry, J.M.'s thinking was

"more linear" in that he seemed to believe that because he had made some efforts

to improve himself, reunification should be the next step. I d. He could not

understand that K.M.M. did not want to have a connection with him any longer.

      Similarly, Lisa Sinnett, a social worker assigned to K.M.M.'s case, stated

that she believed "[J.M.] is unable to meet [K.M.M.]'s needs" because of his

"inability to kind of understand what her needs are. He has an inflexibility in

regards to that, and so he isn't able to meet her where she is at." 3 VRP at 396-97.

Ms. Sitmett testified that despite lengthy conversations with J.M.,

      [he] has been unable to see things from [K.M.M.]'s point of view, in
      my opinion. He hasn't been able to fully tmderstand why the length
      of time that she has been involved in this and that she -- what she
      wants in regards to what she wants long term for herself and also in
      regards to why she was not going to continue with the sibling visits,
      so a lack of understanding and insight into her needs.

Id. at 397-98. J.M.'s inability to meet K.M.M. "where she is at," id. at 397, was

exemplified by the failed natural contact. J.M. overwhelmed K.M.M. against the




                                           18
In re Parental Rights to K.MM, No. 91757-4

social worker's instructions and did not understand why the interaction was so

traumatic and upsetting for his daughter. 2 VRP at 326, 330.

      Furthermore, because he had not addressed his underlying mental health

issues, J.M. "hasn't become ready to support [K.M.M.] 's attachment to him." 4

VRP at 664. J.M. had been unable to maintain regular mental health treatment,

and there was no evidence that he would be able to in the future. In fact, his

testimony at trial suggested an unwillingness to continue with mental health

services, which he described as "a waste of time and money and waste of energy."

3 VRP at 496. Unfortunately, as long as J.M.'s mental health issues remain

untreated, attachment and bonding therapy would be ineffective.

      "[A] parent's unwillingness or inability to make use of the services provided

excuses the State from offering extra services that might have been helpful."

Ramquist, 52 Wn. App. at 861. Furthermore, a parent's lack of insight into his

own condition and the child's needs is relevant to assessing whether the parent

would benefit from additional services. See In re Welfare ofH.S., 94 Wn. App.

511, 528, 973 P.2d 474 (1999) (citing Krause v. Catholic Cmty. Servs., 47 Wn.

App. 734, 747, 737 P.2d 280 (1987)). Thus, in light of J.M.'s unwillingness to

take advantage of the services that had already been provided to him, the

Department was not required to provide additional services.




                                          19
In re Parental Rights to K.MM, No. 91757-4

      3.    Providing additional services would not remedy JM 's parental
            deficiencies within the foreseeable future

      Even in instances where the Department inexcusably fails to offer all

necessary services, termination may still be appropriate if the service would not

remedy the parent's deficiencies within the foreseeable future. In re Dependency

ofT.R., 108 Wn. App. 149, 164,29 P.3d 1275 (2001). The '"foreseeable future"'

is determined from the point of view of the child. Hall, 99 Wn.2d at 851. Here,

the trial court concluded that even if attachment and bonding services could

remedy the lack of attachment between J.M. and K.M.M., "there is no reasonable

probability that reunification therapy, or any other kind of therapy, can remedy [the

severed parent-child bond] within the foreseeable future." CP at 108 (emphasis

added). There is substantial evidence in the record to support this conclusion.

      The testimony was consistent about K.M.M.' s need for immediate stability

and permanence. Ms. Staton, who has worked with K.M.M. since almost the

beginning of dependency, testified that K.M.M. "has a lot of anxiety over what is
                       t'
going to happen, whether or not she is going to be able to be adopted, or whether

or not she is going to be returned." 1 VRP at 92. Ms. Staton further testified that

this fear and anxiety is already "delaying [K.M.M.] from entering this new

developmental stage in a healthy way." Id. at 92-93. Ms. Staton opined that

K.M.M. had a short-term need for permanency so that she could "let go of this

fear" and "move on to the next developmental stage." Id. at 93. According to Ms.

                                         20
In re Parental Rights to K.MM, No. 91757-4

Staton, K.M.M. would need to maintain her secure attachment to her foster parents

in order to move forward in her development. I d. at 141.

       K.M.M. herself was clear about the fact that she did not want to be reunited

with her parents. K.M.M. testified that she did not want to live with her biological

parents and wanted to be adopted by her foster parents. 9 2 VRP at 285, 303.

K.M.M. expressed this desire to the adults around her. Mr. Sherry testified that it

became clear from their first meeting that K.M.M. was "adamant" about not

wanting visitation with her parents. I d. at 226-27. Mr. Richardson testified that he

had never had a case where a child had "drawn a line in the sand" to the same

extent as K.M.M. 1 VRP at 54. Jennifer Martin, the GAL, explained that

"[K.M.M.], as an older child and having grown up over the last ... four and a half

years, she has [begun] to develop an identity, and that identity is separate from her

parents." 4 VRP at 665.




       9
          It is worth noting that pursuant to RCW 26.33.160(1)(a), a child's consent to adoption is
required if the child is 14 years of age or older. This suggests that the legislature recognizes that
children, particularly children at K.M.M. 's age, should have a say in what happens to them. The
value of this child-centered approach is supported by amici curiae Center for Children & Youth
Justice et al., who observe that "[t]here is evidence to suggest that a child's chances of success in
a placement are improved when a youth feels comfortable and safe in their placement." Br. of
Amici Curiae Ctr. for Children & Youth Justice, Mockingbird Soc'y, & Children & Youth
Advocacy Clinic at Univ. of Wash. Sch. of Law (Br. of Amici Curiae CCYJ) at I 0-11. In this
case, K.M.M. has repeatedly asked why no one listens to her with regard to what she wants. 4
VRP at 665. The importance of considering K.M.M.'s point of view is underscored by the
testimony that disregarding K.M.M. 's adamant desire to be adopted by her foster parents would
be detrimental to her sense of self. 2 VRP at 272.


                                                 21
In re Parental Rights to K.MM, No. 91757-4

      There was no evidence that the parent-child relationship could be repaired.

And even if an attachment between J.M. and K.M.M. could be restored, there was

no reason to believe that this would be possible within a time frame that would be

conducive to K.M.M.'s emotional development and well-being. Therefore, based

on the unique facts presented by this particular case, we find substantial support for

the trial court's conclusion that "all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future have

been expressly and understandably offered or provided" in accordance with RCW

13 .34.180(1 )(d).

      4.      There is no requirement for identical services between foster parents
              and noncustodial parents

      J.M. asserts that K.M.M.'s foster parents were provided with attachment and

bonding services that allowed them to form an attachment with her. The foster

parents received instructions to treat K.M.M. like a much younger child in order to

address her developmental delays, which included rocking her in a blanket. 1 VRP

at 101-02. Relying on C.S., 168 Wn.2d 51, J.M. asserts that offering services to

the foster parents but not to him constitutes a failure to provide all necessary

services as required by RCW 13 .34.180(1 )(d). However, contrary to J.M.'s

interpretation, C.S. does not stand for the proposition that noncustodial parents

must receive services identical to the foster parents.




                                          22
In re Parental Rights to K.MM, No. 91757-4

      In C.S., the mother had not been provided with the same training as the

foster mother to manage the child's behavioral problems. Id. at 56. The foster

mother was able to successfully care for the child after the services were offered.

Id. at 55-56. The crux ofthe decision in C.S. was that the mother was not provided

with reasonably available services that could have helped her parent her child.

While the fact that foster parents receive certain services may be evidence of

reasonable availability, it does not create an inflexible requirement that

noncustodial parents receive identical services. As the primary caregiver, a foster

parent has a fundamentally different relationship with a dependent child than a

noncustodial parent. The services needed by the foster parents to adequately care

for a child will likely be different from what may be reasonably available to a

parent in many cases.

      This is precisely what the facts before us demonstrate. Ms. Staton testified

that the foster parents were involved in K.M.M.'s therapy only because they were

her primary caregivers. 1 VRP at 68. The goal ofK.M.M. 's individual therapy

was to help her form healthy attachments to adults generally, not to her foster

parents specifically. The hope was that once K.M.M. formed an attachment to her

foster parents, she would be able to transfer that attachment to her parents ifthe

time for reunification ever arrived. Id. at 71-74. Moreover, because K.M.M. could




                                          23
In re Parental Rights to K.MM, No. 91757-4

no longer tolerate contact with J.M., his involvement in K.M.M. 's individual

therapy was neither possible nor appropriate.

B.    CURRENT PARENTAL UNFITNESS

      The trial court concluded that J.M. was "unable to parent" K.M.M. due to

her lack of attachment to him and his inability to remedy that lack of attachment at

the time of trial. J.M. contends that this does not constitute a finding of current

parental unfitness, and even if it did, the facts are not sufficient to support such a

finding. J.M. further asserts that the trial court implicitly found that he was fit

when it concluded that all parental deficiencies had been remedied and his inability

to parent was not due to any fault on his part. We hold that the trial court did

properly find J.M. was currently unfit to parent K.M.M. at the time of trial.

        This court has previously stated that the first part of the termination

proceeding focuses on the adequacy of the parent, and it is "'premature'" to

consider the child's best interests before resolving the question of parental

unfitness. A.B., 168 Wn.2d at 925 (quoting In re Welfare ofChurape, 43 Wn. App.

634, 639, 719 P.2d 127 (1986)). Applying this principle, J.M. argues that the

unfitness inquiry is limited to the qualities of the parent and cannot look "to

outside circumstances that already inform other termination elements." Pet'r's

Suppl. Br. at 11. In J.M. 's view, by finding that he was currently "unable to

parent" K.M.M. due to the lack of a bond between them, the trial court improperly



                                           24
In re Parental Rights to K.MM, No. 91757-4

considered factors beyond his personal characteristics in determining parental

unfitness.

      While it is true that the best interests of the child inquiry is a different and

separate consideration from parental unfitness, the statute and case law do not

support the argument that the parental unfitness inquiry is limited solely to

consideration of the parent's deficiencies. The parent-child relationship

necessarily involves both the parent and the child; thus, it is necessary to consider

whether a parent is capable of parenting the particular child given the child's

specific, individual needs. This approach is supported by a plain reading of the

statute and case law interpreting "unfitness" as applied to chapter 13.34 RCW.

       1.    A plain reading o[RCW 13.34.180 and related statutes demonstrates
             that the unfitness inquiry goes beyond a parent's deficiencies

      There is no statutory definition of "unfitness," but the statutory elements of

RCW 13 .34.180( 1) "necessarily and implicitly include[] evidence of current

parental unfitness." K.R., 128 Wn.2d at 142. In other words, the elements of

RCW 13.34.180(1) form the factual basis for a finding of parental unfitness. If any

requirement ofRCW 13.34.180(1) is not satisfied by clear, cogent, and convincing

evidence, then termination of parental rights is not permissible. Along the same

lines, if all of the requirements ofRCW 13.34.180(1) have been met, there is an

implied finding of parental unfitness. !d. Thus, examining the scope of the




                                           25
In re Parental Rights to K.MM, No. 91757-4

statutory requirements provides insight into what may be properly considered

when determining parental unfitness.

      While RCW 13.34.180(1)(d) looks specifically at a parent's deficiencies,

RCW 13.34.180(1)(e) more broadly requires "[t]hat there is little likelihood that

conditions will be remedied so that the child can be returned to the parent in the

near future." (Emphasis added.) "Where the statute's meaning is plain and

unambiguous, we derive legislative intent from the statute's plain language." In re

Welfare ofL.N.B.-L., 157 Wn. App. 215,238,237 P.3d 944 (2010) (citing City of

Seattle v. St. John, 166 Wn.2d 941, 945, 215 P.3d 194 (2009)). Here, "conditions"

is a broad term that is capable of encompassing all relevant facts and

circumstances. If the legislature had intended to limit the "conditions" that may be

considered when determining parental unfitness to specific "parental deficiencies,"

then it could have used appropriately specific language. Because it did not do so,

limiting an unfitness inquiry to parental deficiencies would draw a narrower scope

than the legislature intended. The argwnent that "conditions" extends beyond

"parental deficiencies" is further supported by language instructing that "[i]n

determining whether the conditions will be remedied the court may consider, but is

not limited to," the factors specifically enumerated in the provision. RCW




                                          26
In re Parental Rights to K.MM, No. 91757-4

13.34.180(1)(e) (emphasis added). 10 Furthermore, RCW 13.34.180(1)(t) provides

that termination is appropriate where "continuation ofthe parent and child

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

stable and permanent home." (Emphasis added.) This necessarily requires

consideration of the specific parent-child relationship, rather than just the parent's

deficiencies.

       Thus, considering the statutory language in context, it appears that the

legislature did not intend for parental unfitness to be considered in isolation, as

J.M. contends. Rather, the totality of the parent-child relationship is already part of

the unfitness inquiry.

       2.       Courts already consider the specific parent-child relationship when
                determining unfitness

       Case law also demonstrates that in appropriate circumstances, courts will

look beyond the existence of general parental deficiencies when making unfitness

determinations to consider whether the parent is able to provide for the specific

child's basic, individual needs. In Aschauer, 93 Wn.2d at 693, for example, we



       10
           Amici advocate for the position that where continuation of a parent-child relationship
would be significantly detrimental to the child's social and emotional development, "that fact is
and should be deemed a parental deficiency under the statute at the time of trial." Br. of Amici
Curiae CCYJ at 10. Whether the circumstances are characterized as a "parental deficienc[y]"
pursuant to RCW 13.34.180(l)(d) or a "condition[]" pursuant to RCW 13.34.180(1)(e), our case
law is consistent with the proposition that the focus of the inquiry should be determining if the
nature of the parent-child relationship constitutes a barrier to reunification. See C.S., 168 Wn.2d
at 56 n.3.


                                                27
In re Parental Rights to K.MM, No. 91757-4

upheld a termination order, finding that "[t]he record is replete with evidence that

the persons who had the care and custody of the children from the time oftheir

infancy had not had the ability to meet their physical and emotional needs."

(Emphasis added.) Although the "the parents did their best to care for the

children," the evidence demonstrated that "both parents were incapable of giving

them the care that they needed." !d. at 694. This conclusion was not based solely

on a general parental deficiency, but on the specific context of the parent-child

relationship at issue in that case. The mother was unable to cope with her own

serious mental health condition, let alone the needs of two children with severe

physical, emotional, and social developmental delays. !d. In light of that specific

context, we held that "[t]he mother, while she undoubtedly loves the children also

and desires to have them with her, has been found, upon substantial evidence, to be

likewise incapable of nurturing them." !d.     The analysis in Aschauer

demonstrates that the proper inquiry is whether the parent is able to provide care

for the child actually involved, not merely whether parental deficiencies exist in

the abstract.

       Similarly, the Court of Appeals has held that the fact that a parental

deficiency exists is not necessarily sufficient to show unfitness. For example,

Division One stated that "mental illness is not, in and of itself, proof that a parent

is unfit or incapable. The court must examine the relationship between the mental



                                          28
In re Parental Rights to K.MM, No. 91757-4

condition and parenting ability." In re Dependency ofT.L.G., 126 Wn. App. 181,

203, 108 P.3d 156 (2005). In other words, the deficiency must affect a parent's

ability to adequately care for a child. Along the same lines, Division Three

observed that "[t]he court considers behavior manifesting mental illness within the

totality of the circumstances" when determining whether a parent is unfit. HS., 94

Wn. App. at 528 (citing In re Welfare ofHauser, 15 Wn. App. 231, 235, 548 P.2d

333 (1976)). The court further stated that "[a] child should not be left in the

custody of a parent whose mental illness renders the parent unable to understand or

meet the needs of the child." Id. (citing In re Welfare ofFrederiksen, 25 Wn. App.

726, 733,610 P.2d 371 (1979)). These cases demonstrate that unfitness is not

coextensive with the existence of a parental deficiency. A deficiency rises to the

level of parental unfitness when it interferes with the parent's ability to provide for

the child's basic health, safety, and well-being.

      An unfitness inquiry that extends beyond the existence of parental

deficiencies to consider the specific parent-child relationship at issue is also

consistent with how "unfitness" is examined in the context of other sections of

chapter 13.34 RCW. With regard to nonparental custody petitions, we have

previously stated that "[a]n unfit parent generally cannot meet a child's basic needs

and, in such cases, the State is justified in removing the child from the home and,

in certain cases, permanently terminating parental rights." In re Custody of



                                           29
In re Parental Rights to K.MM, No. 91757-4

Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006). We echoed this same

conception of "unfitness" more recently in In re Custody ofB. MI-l., 179 Wn.2d

224, 236, 315 P.3d 470 (2013) ("A parent is unfit if he or she cannot meet a child's

basic needs."). And in dependency cases, we have recognized that a showing of

parental deficiency is not the same as proving parental unfitness. Schermer, 161

Wn.2d at 943 (citing In re Welfare ofKey, 119 Wn.2d 600, 609, 836 P.2d 200

(1992)).

      These cases support the argument that the mere existence of a parental

deficiency does not necessarily determine whether a parent is currently unfit.

Conversely, we reject the argument that remedying general parental deficiencies is

dispositive in determining whether a parent is currently unfit to parent a particular

child. The proper inquiry is whether the existing parental deficiencies, or other

conditions, prevent the parent from providing for the child's basic health, welfare,

and safety. See In re Welfare ofA.B., 181 Wn. App. 45, 61,323 P.3d 1062 (2014).

Not all children have the same basic needs; a child with attention deficit disorder,

for example, will have needs that are specific to managing that disorder. See C.S.,

168 Wn.2d at 55. Thus, in order to determine whether a parent is a fit parent to a




                                          30
In re Parental Rights to K.MM, No. 91757-4

particular child, the court must determine that the parent is able to meet that

child's basic needs. 11

       Applying the foregoing analysis to the facts at hand, there is substantial

evidence to support the trial court's conclusion that J.M. was unable to parent

K.M.M. The trial court correctly determined that the Department had discharged

its statutory obligations under RCW 13.34.180(1). Despite receiving all necessary

available services, J.M. remains unable to parent K.M.M. due to a lack of

attachment. There is no evidence that any additional services would remedy this

condition within K.M.M. 's foreseeable future. The totality of these circumstances

is sufficient to support a finding of current parental unfitness. 12




        11  Like J.M., amicus King County Department of Public Defense asks us to look at a
parent's deficiencies in a vacuum when determining parental unfitness. Br. of Amicus Curiae
King County Dep't of Pub. Def. at 4 ("the parental unfitness inquiry must focus on the parent
and not on the child"). The unfitness inquiry is not as rigid as the briefing contends. More to the
point, we do not hold that the best interests of the child should be able to overcome a parent's
constitutionally protected rights-the case law is clear on this point. However, the particular
facts of this case illustrate why an unfitness inquiry that fails to look at the specific parent-child
relationship may not only be unfair, but could result in harm to the child. Reducing termination
proceedings to a simple matter of parental rights versus the best interests of the child ignores the
fact that the rights of both sides are, more often than not, interrelated in complicated ways that
require individual and specific consideration.
         12
            As required by RCW 13 .34.190(1 )(b), the trial court concluded that termination was in
K.M.M.'s best interests. There is substantial evidence to support the trial court's conclusion.
Because J.M. did not assign error to this conclusion on appeal, we do not address this issue
further.


                                                 31
In re Parental Rights to K.MM, No. 91757-4

                                     CONCLUSION


      A court's decision to terminate parental rights is rarely ever an easy one to

make. "Courts are always reluctant to deprive parents of rights with respect to

their children, and it is particularly sad when the parent cares for the child and

desires to be a good parent, as appears to be the case here." Aschauer, 93 Wn.2d at

695. J.M. 's efforts to correct his parental deficiencies and retain his parental rights

are commendable, but "the court may not accommodate the parents' rights when to

do so would ignore the basic needs of the child." HS., 94 Wn. App. at 530.

      Unfortunately, as the trial court here observed, "no one had a crystal ball in

this case." CP at 107. No one could have foreseen how the confluence of events

would lead to K.M.M. 's complete detachment from her father. The sad fact

remains that his daughter no longer feels a bond of attachment to him, nothing

could have been done at the time of trial to repair the severed parent-child bond,

and any efforts to do so would cause actual harm to K.M.M.

       The alternative to termination is not placing K.M.M. back in her father's

custody, but the continuation of her dependency, which has already spanned almost

seven years. The mental health experts and social workers who know K.M.M. best

all testified unequivocally that a continued lack of stability and permanence would

likely cause serious delays in her development. To borrow sentiments from the




                                           32
In re Parental Rights to K.MM, No. 91757-4

Court of Appeals, "No child should languish for years in foster care. [K.M.M.]

should be freed to move on with her life." H.S., 94 Wn. App. at 530.

      Based on the totality of the circumstances presented by the particular facts in

this case, we affirm the Court of Appeals.




                                         33
In re Parental Rights to K.MM, No. 91757-4




WE CONCUR:




                                    34
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)




                                    No. 91757-4

      FAIRHURST, J. (concurring)--Before a parent's fundamental rights can be

terminated, the Department of Social and Health Services (Department) has the

burden to prove by clear, cogent, and convincing evidence that "all necessary

services, reasonably available, capable of correcting the parental deficiencies within

the foreseeable future have been expressly and understandably offered or provided."

RCW 13.34.180(l)(d), .190(l)(a)(i). The Department has failed to offer or provide

certain services that were "'needed to address a condition that precludes

reunification of the parent and child"'-namely, services designed to address the

failing attachment bond between the father, J.M., and his daughter, K.M.M. Majority

at 12 (quoting In re Dependency of A.MM, 182 Wn. App. 776, 793,332 P.3d 500

(2014) (citing In re Welfare ofC.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010))).

      The trial court acknowledged that J.M. never received certain necessary

services, finding that "[a]ll services reasonably available, capable of correcting the

parental deficiencies within the foreseeable future, have been offered or provided to

the father with the exception of reunification services." Clerk's Papers (CP) at 107

(emphasis added). Based on the record and the trial court's findings, the
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

Department's failure to provide such services contributed to K.M.M. 's detachment

from her father: "In 2011, the relationship between [K.M.M.] and her father was at

a critical juncture and the provision of reunification therapy at that time may have

prevented her from extinguishing her attachment to her father." CP at 108.

      But instead of providing the opportunity for J.M. to repair this relationship

with relevant services, the Department worked on K.M.M. 's attachment issues

through her individual therapy, which her foster parents were invited to participate

in. Ultimately, K.M.M. refused to engage with her biological family and instead

identified only with her foster parents, which "severed" the "parent child

relationship" and "attachment bond" between J.M. and K.M.M. CP at 108; see also

CP at 127-28 ("[T]he tenuousness of her attachment to her father during that time

period was more easily extinguished because she was working hard on facilitating

attachments with adults, who happen to be her foster parents.").

      Despite J.M.'s need for reunification services (particularly regarding

attachment and bonding) during a critical point in K.M.M.'s dependency, the trial

court concluded that the Department met its burden under RCW 13.34.180(1)(d)

because, by the time of the termination proceedings, K.M.M. 's detachment from her

father had exacerbated to the point that additional services could not remedy their

relationship, at least not without severely harming K.M.M. The majority upholds

this decision.

                                         2
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

      I write separately because I am concerned that this emphasis on the

harmfulness of reunification therapy and services at the time of the termination trial

allows the Department to avoid its statutory duty to provide services at a time when

they would be most helpful to promoting family reunification, then terminate

parental rights based on circumstances that may have been avoided had the

Department timely fulfilled its duty to provide services.

      The majority holds that attachment and bonding services were not "necessary

services" under RCW 13.34.180(l)(d) because it would be futile for the Department

to offer them. Majority at 16. The majority focuses on three major reasons to support

its conclusion of futility. First, the majority asserts that K.M.M.'s detachment from

her father was so severe by the time of the termination trial that no further services

could remedy that relationship, at least not without harming K.M.M. I d. Second, the

majority claims that J.M.'s lack of empathy toward K.M.M.'s needs rendered

additional services futile. Id. at 17. Third, the majority points to J.M.'s mental health

issues as evidence that "attachment and bonding therapy would be ineffective." Id.

at 19. I cannot agree that these rationales support a finding of futility given the

Department's failure to even offer attachment and bonding services and considering

J .M.' s willingness and demonstrated completion of all other necessary services.




                                            3
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

1.    Timeliness of reunification services

      It is undisputed that K.M.M. had special needs involving her attachment to

adults and that J.M. was never offered any sort of attachment and bonding services

that would allow him to adequately respond to those needs. The majority admits that

J.M. was willing to participate in such services, but claims that it is simply too late

now. By jumping so quickly to a conclusion offutility, the majority fails to take into

account significant factors, such as J.M. 's willingness and ability to complete all

services, the crucial need for such services during the dependency, and the effect

that the Department's failure to offer those services had on K.M.M.'s detachment

from her father. The majority also seems to expand the scope of the judicially created

futility doctrine.

       The trial court repeatedly emphasized that its decision to terminate parental

rights had nothing to do with J.M.'s parental deficiencies. CP at 108 ("[i]t is not due

to parental deficiencies" that K.M.M. would no longer engage with her biological

family; "[t]hrough no fault of the father, [K.M.M.] had taken the strong position that

she did not want to engage in visitation"), 109 ("The lack of the attachment bond is

not due to any of [J.M.]'s parental deficits. [J.M.]'s parental deficits have been

corrected. The father here has successfully participated in the court ordered

rehabilitative services and has remedied these individual parental deficits.").

According to the trial court, "The record is replete with the father's willingness to

                                           4
In re Parental Rights to K.MM., No. 91757-4
Fairhurst, J. (concurring)

enter into, to attend, make progress in, and complete all of the services that were

offered to him by the State." CP at 120. The trial court also concluded that J.M. was

an "appropriate parent" to his other daughter. CP at 109, 133.

      J.M. worked hard to complete all of the services the Department offered, and

he remedied all of his parental deficiencies, yet ultimately his parental rights were

still terminated without the Department ever offering him necessary attachment and

bonding services. Given J.M.'s positive history of completing all services, the

Department cannot now claim that attachment and bonding training would be futile

when it did not even attempt offering him that sort of therapy. The majority's

conclusion that additional services would be futile disregards essential aspects of our

futility doctrine and creates a new exception.

      The majority's own definition of"futile" states, "The provision of services is

futile where a parent is unwilling or unable to participate in a reasonably available

service that has been offered or provided." Majority at 16 (emphasis added). Based

on this definition, a service cannot be futile when the Department has never even

offered it. Similarly, in B.P. we noted that the futility mle "derives from cases in

which the State made repeated offers of services but eventually gave up after the

parent refused to accept any of those offers." In re Parental Rights to B.P., _

Wn.2d _ , 376 P.3d 350, 362 n.5 (2016). In that case, we reversed a termination

order lmder RCW 13.34.180(l)(d) for failing to provide necessary attachment and

                                           5
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

bonding services. We noted that such services would not be futile where the parent

had "accepted every offer of services and did exceptionally well" in the limited

services that the Department did provide to address the parent's relationship with the

child. Id.

       Based on these definitions of "futility," I cannot say that attachment and

bonding services would be futile in this case given J.M.'s dedication to all other

services offered and the Department's undisputed failure to ever offer such services,

especially during a time period that the trial court identified as "critical" to saving

the parent-child relationship. CP at 108, 118, 127, 134.

       Notably, the Department's failure to timely provide attachment and bonding

services contributed to K.M.M.'s detachment from her father. Although K.M.M.

expressed a desire to be adopted and that she no longer wanted to see her biological

parents at a time when visits and services with her parents were still ongoing,

K.M.M.'s counselor failed to advise the Department about these sentiments or to

explore possible need for attachment or reunification services for the biological

parents. CP at 126. The trial court's written findings explain that the Department

offered services for K.M.M. to develop secure attachments to adults, but then she

ultimately attached only to her foster parents and severed her relationship with her

biological parents. CP at 107-08.



                                           6
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

      As the trial court's oral ruling explains more fully, the Department's failure

to offer reunification therapy for J.M., particularly considering K.M.M.'s individual

therapy that encouraged attachments to her foster parents, directly impacted

K.M.M.'s detachment from J.M. See CP at 129 (K.M.M.'s refusal to visit her

biological parents "is a circumstance ... or a combination ... of a lapse of time, not

striking while the iron was hot, in terms of getting reunification therapy started in

2011 [,] ... and the focus of all of the therapy, which was to facilitate [K.M.M.] to

shore up and encourage her to form secure attachments with adults."), 134 ("[T]here

was a failure to provide reunification therapy at a critical juncture[;] ... because

there was that failure, [K.M.M.] was allowed to form a strong attachment bond with

her foster parents such that ... that relationship between her dad and her cannot now

be repaired without great harm being caused to [K.M.M.]."), 134-35 ("The

relationship is not due to a parental deficiency today. It is due, as I said, to that earlier

moment in time, which was missed in terms of the ability for [K.M.M.] and her dad

to reunify."); see also CP at 118 (the critical services "capable of correcting the

parental deficiencies within a foreseeable future were not provided at a time when

those deficiencies or those problems could have been corrected").

       I am deeply troubled that the Department's failure to provide necessary

attachment and bonding services in a timely manner appears to be the main reason

that reunification is no longer available between this parent and his child. In contrast

                                              7
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

to the cases in which the Department has offered services but the parent refuses to

take advantage of them, there are no such grounds for a finding of futility here. 1

2.     Empathy

       The second reason the majority claims that attachment and bonding services

would be futile involves J .M. 's supposed "lack of empathy for K.M.M. 's needs."

Majority 17. However, the examples cited by the majority point more to J.M.'s lack

of understanding of K.M.M. 's unique needs and how he should respond to them.

This is exactly why additional services are necessary, not a reason to claim that they

would be futile. See 1 Verbatim Report ofProceedings (VRP) (Oct. 29, 2013) at 112

(explaining that family therapy can help a parent to meet the child's emotional

needs). From the record, it appears that understanding K.M.M.' s specialized needs

was a prerequisite for any adult hoping to establish a parental bond with her. See 1

VRP at 67. As we stated in C.S., "When a 'condition' precludes reunion of parent

and child, as here, regardless of whether it can be labeled a 'parental deficiency,' the




       1
         See, e.g., In re Welfare ofAschauer, 93 Wn.2d 689, 699 n.6, 611 P.2d 1245 (1980) (stating
that offering services would be futile because "the mother was unwilling to move from Portland,
and thus the department could not effectively offer her services"); In re Welfare ofHall, 99 Wn.2d
842, 850, 664 P.2d 1245 (1983) ("This is not a case where a parent refused services or referrals
which were actually offered." (citing In re Jones, 436 N.E.2d 849, 853-54 (Ind. App. 1982))); In
re Welfare ofMR.H, 145 Wn. App. 10, 26, 188 P.3d 510 (2008) (finding services futile "[w]here
the Department offers services but the parent refuses to participate").
                                                8
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

State must provide any necessary services to address that condition as set forth in

RCW 13.34.180(1)(d)." 168 Wn.2d at 56 n.3; accord B.P., 376 P.3d at 361.

      I find it notable that the Department offered K.M.M.'s foster parents some

sessions on "how to meet her needs" and "attachment," but J .M. did not receive such

services. See 1 VRP at 99-101. I agree with the majority that the Department is not

necessarily obligated to provide biological parents with services that are "identical"

to those provided to foster parents. Majority at 22. However, in C.S., a case that is

in many ways analogous to the one at issue, we reasoned that when the Department

recognizes that certain available services are necessary and capable of remedying

the very deficiency that is preventing reunification and the Department fails to offer

those services to the biological parent when the same services have been offered to

the foster parent, termination is improper. 168 Wn.2d at 55-56.

      In that case, the child, C.S., was diagnosed with attention deficit hyperactivity

disorder, oppositional defiant disorder, obsessive-compulsive disorder, and sensory

integration disorder, all of which made it difficult for adults to manage C.S.'s

behavior at times. !d. at 55. The foster mother faced various difficulties in controlling

C.S. until the Department placed C.S. on medication and provided the foster mother

with training on how to effectively manage C.S. Id. at 55-56. The combination of

medication and proper training proved successful. Id. at 56. Although C.S.'s

biological mother had remedied the underlying parental deficiencies that justified

                                            9
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

the dependency, the Department did not offer her the same services because it

believed the services would be futile. I d. at 56 n.2. The trial court acknowledged that

the biological mother had remedied her parental deficiencies but nevertheless

terminated the biological mother's parental rights, finding that she "lacked 'the

patience, presence of mind, skills, experience, time in a day, and availability to care

for [C.S.]-given his special needs,' and these conditions showed there was little

likelihood C.S. could be returned to [his biological mother] in the near future." Jd.

at 55. We reversed, holding that because medication and training were necessary to

address C.S.'s behavioral problems regardless of who was caring for him, and

because the training was not offered to his biological mother, RCW 13.34.180(1)(d)

had not been met and termination was improper. Jd. at 56. The fact that the

Department provided training for his foster parent and medication for C.S. in order

to control C.S.'s behavior indicated that proper services were not only available, but

that they were necessary in order to permit any adult to care for C.S. and his special

needs.

         Like the mother in C.S., J.M. completed every offered service and remedied

each parental deficiency underlying the initial dependency and termination. CP at

109. Importantly, according to K.M.M. 's therapist's testimony, the attachment and

bonding services that K.M.M. received and her foster parents were able to participate

in were essential for K.M.M. to form healthy attachments to adults and for her foster

                                           10
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

parents to be able to understand and address K.M.M.'s behavior. 1 VRP at 67-68,

106; see also CP at 107. In other words, attachment and bonding services were

required in order to address K.M.M. 's unique issues, and therefore should have been

deemed "necessary" under RCW 13.34.180(1)(d). As in C.S., the fact that certain

services (here, attachment and bonding services) were available to K.M.M. 's foster

parents and proved successful in addressing K.M.M.' s behavioral and attachment

issues indicates that such services were not only available to J.M., but that the

services may have been successful had they been timely provided to J.M. Unlike the

majority, I do not blame J.M.'s misunderstanding of his daughter's needs on his lack

of empathy, but rather on the Department's failure to provide training and services

for J.M. to understand and address her unique needs.

3.    Mental health

      Finally, the majority suggests that it would have been futile for the

Department to offer additional services because J.M. failed to complete mental

health treatment. However, this conclusion is directly contradicted by the trial

court's findings. Although the trial court acknowledged J.M. may have had some

mental health issues, the court found that his mental health needs and treatment were

wholly distinct from his parenting capabilities. CP at 107, 121-24, 132. In addition,

the trial court repeatedly emphasized that J.M. completed all services offered that

were relevant to his parental deficiencies. CP at 109, 120. Substantial evidence in

                                         11
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

the record supports these findings. Given the unrelatedness of J.M.'s mental health

and his successful track record in all relevant services, I would not find the provision

of additional services futile. See C.S., 168 Wn.2d at 56 (disavowing the

Department's argument that additional services would be futile when biological

mother had complied with all offered services, remedied underlying parental

deficiencies, and was not offered services that could have permitted reunification).

4.    Conclusion

      I cannot agree that the Department fulfilled its burden of providing necessary

services under RCW 13.34.180(1)(d) by showing that additional services would be

futile due to J.M.'s empathy or mental health issues. Despite all efforts on J.M.'s

part, the court has terminated parental rights because the severed parent-child

relationship between K.M.M and J.M. is now beyond repair. I am very concerned

that K.M.M.'s detachment from her father was exacerbated by the Department's

failure to provide necessary services in a timely manner.

      However, I recognize that under the express terms ofRCW 13.34.180(1)(d),

necessary services must be "capable of correcting parental deficiencies within the

foreseeable future." (Emphasis added.) At the termination proceeding, testimony

from the mental health experts and other witnesses consistently agreed that the lack

of attachment between J .M. and K.M.M. was so severe that there were no longer any

services available that could promote reunification. See CP at 108 (noting the

                                           12
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)

"severed" parent-child attachment bond and stating, "Everyone has agreed and

testified that there is no reasonable probability that reunification therapy, or any

other kind of therapy, can remedy this situation within the foreseeable future").

Based on the language of RCW 13.34.180(1)(d), which requires "necessary

services" to be capable of remedying deficiencies "within the foreseeable future,"

coupled with the consistent agreement that no services could repair the attachment

bond once it was severed, I must reluctantly affirm the termination order. Despite

the Department's failure to provide essential services at a time when they could have

helped promote reunification, I cannot ignore the legislature's choice to include the

term "within the foreseeable future" with its definition of "necessary services" and

the reality that there are no longer any services that could correct the severed parent-

child bond. Therefore, I must ultimately concur in the majority's decision to affirm

the termination order, but not without emphasizing J.M.'s commendable efforts in

attempting reunification and expressing my frustration and disappointment with the

Department's failure to provide essential reunification and attachment services at a

time when they may have preserved and strengthened the now failed bond between

K.M.M. and J.M.




                                           13
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)




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