 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of           )
                                                     No. 75425-4-1
Z.R.,
D.O.B.: 09/26/2013,                                  DIVISION ONE

                       Minor child.                  UNPUBLISHED OPINION

TYREECE KINGSLEY DUNBAR, AKA
TYREECE KINGSLEY GARDNER,

                       Appellant,

               V.
                                                                                        Co

STATE OF WASHINGTON,                                                                    cr:
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
                                                     FILED: June 5, 2017
                       Respondent.


       TRICKEY, A.C.J. — Tyreece Dunbar, also known as Tyreece Gardner,1
challenges the sufficiency of the evidence supporting the trial court's order

terminating his parental rights to his daughter, Z.R.               Because substantial

evidence supports the trial court's findings, which in turn support the conclusions

of law terminating Dunbar's parental rights, we affirm.

                                         FACTS

       Z.R. was born on September 26, 2013. Z.R.'s mother tested positive at

Z.R.'s birth for amphetamines, methamphetamine, cocaine, benzodiazepines,

barbiturates, methadone, and morphine. Z.R. was removed from her mother's


1 The father stated that he preferred to use the last name Gardner, and the trial court's
findings of fact supporting termination refer to him as such. We use the name Dunbar
because that is how the father is referred to in the paternity and criminal pleadings in the
record.
No. 75425-4-1/ 2

custody at the hospital and placed in foster care.        Z.R.'s mother told the

Department of Social and Health Services (Department) social worker that she

did not know who Z.R.'s father was.

       Dunbar learned that he might be the father of Z.R. in January 2014, while

he was serving a prison sentence for unlawful possession of a firearm, violation

of a no-contact order, and resisting arrest.     In October 2014, following his

release, genetic testing established that Dunbar was Z.R.'s biological father.

      On March 23, 2015, Department social worker Michelle Hetzel wrote a

letter to Dunbar, recommending that he participate in random urinalysis testing, a

substance abuse evaluation, and mental health services.           Hetzel included

instructions on how to obtain each of these services.        Hetzel also included

contact information for the Fatherhood Engagement Program, a program

designed to help fathers understand the dependency process, and Project

SafeCare, an in-home parenting class. A few days later, Hetzel sent Dunbar

another letter with the same information. Dunbar did not participate in any of the

recommended services.

      Z.R. has significant delays in both language and motor skills, possibly due

to prenatal drug exposure. She has received occupational therapy, speech

therapy, and infant mental health services since she was only a few months old.

The Department arranged for Dunbar to attend Z.R.'s therapy sessions so that

he could better understand her needs. Dunbar attended only one occupational

therapy appointment and one speech therapy appointment. Though multiple

professionals have noted Z.R.'s delays, Dunbar believed their opinions were
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No. 75425-4-1/ 3

exaggerated for the purpose of keeping Z.R. from him. He disagreed that Z.R.

had any special needs or that her development required any additional

interventions.

       Following a trial, dependency was established as to Dunbar on August 31,

2015. The juvenile court ordered Dunbar to do random urinalysis testing four

times per month for a period of 90 days, undergo a substance abuse evaluation

and a psychological evaluation with a parenting component, and participate in

Project SafeCare. The juvenile court also ordered Dunbar to attend all of Z.R.'s

medical and therapy appointments, maintain a working telephone number, and

establish a safe, stable residence that was suitable for a child of Z.R.'s age.

Dunbar was allowed to have four hours of supervised visitation each week.

Department social worker Swan Tso called Dunbar multiple times, leaving

messages regarding how to participate in his court-ordered services. Tso also

left messages with Dunbar's wife, asking her to remind him about the urinalysis

testing.   Dunbar called Tso back only once, and did not participate in any

services. A visitation supervisor also tried to contact Dunbar for visits but never

heard back from him.

       On September 26, 2015, only a few weeks after the conclusion of the

dependency trial, and the same day as Z.R.'s second birthday, Dunbar shot

another man twice in the legs. Dunbar was arrested on October 13, 2015 and

held in the King County jail, where he remained until the time of the termination

trial. Tso attempted to contact the jail to determine whether Dunbar could

complete any of his court-ordered services while there, but did not receive any
                                        3
No. 75425-4-1/4

response. Tso then checked the jail's website and determined that the jail did

not offer any services that would have satisfied the court's requirements. Tso

also contacted Dr. Robert Deutsch, a Seattle-based psychologist, who has a

contract with the Department to perform psychological evaluations, to see if he

could evaluate Dunbar in jail. Dr. Deutsch stated he did not perform evaluations

in a jail setting. Tso testified that if Dunbar was ultimately transferred to a prison

elsewhere in Washington, she would seek a provider close to that facility.

        On May 2, 2016, Dunbar pleaded guilty to second degree assault with a

deadly weapon and first degree unlawful possession of a firearm. Based on

Dunbar's criminal history, he faced a standard sentencing range of 67 to 89

months, plus a sentencing enhancement of 12 months.

        Trial on the termination petition began on May 25, 2016, at which point

Z.R. was two-and-a-half years old. On June 23, 2016, the trial court entered

findings of fact and conclusions of law and an order terminating Dunbar's

parental rights. Dunbar appeals.2

                                     ANALYSIS

        Parental rights are a fundamental liberty interest protected by the United

States Constitution. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71

L. Ed. 2d 599 (1982). To terminate parental rights, the State must satisfy a two-

step test. First, it must prove the following statutory elements by clear, cogent,

and convincing evidence:



2 The parental rights of Z.R.'s mother were terminated on March 28, 2016, and she is not
a party to this appeal. Ex. 13.
                                            4
No. 75425-4-1 /5

               (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. . .[; and]

              (f) That continuation of the parent and child relationship
       clearly diminishes the child's prospects for early integration into a
       stable and permanent home.
Former RCW 13.34.180(1)(a)-(f)(2009).
       In 2013, the legislature amended RCW 13.34.180(1)(f) to add three

specific factors that a trial court must consider if a parent is incarcerated at the

time of the trial:

       If the parent is incarcerated, the court shall consider whether a
       parent maintains a meaningful role in his or her child's life based on
       factors identified in RCW 13.34.145(5)(b); whether the department
       or supervising agency made reasonable efforts as defined in this
       chapter; and whether particular barriers existed as described in
       RCW 13.34.145(5)(b) including, but not limited to, delays or barriers
       experienced in keeping the agency apprised of his or her location
       and in accessing visitation or other meaningful contact with the
       child.
RCW 13.34.180(1)(f)(LAws OF 2013, ch. 173 § 4); In re Dependency of D.L.B.,

186 Wn.2d 103, 114, 376 P.3d 1099 (2016). A trial court's assessment of RCW


                                         5
No. 75425-4-1 /6

13.34.180(1)(f) in cases involving an incarcerated parent must be "informed by

evidence presented and conclusions reached regarding the six factors contained

in RCW 13.34.145(5)(b)." In re Dependency of A.M.M., 182 Wn. App. 776, 787,

332 P.3d 500(2014). Those factors may include:

             (i) The parent's expressions or acts of manifesting concern
      for the child, such as letters, telephone calls, visits, and other forms
      of communication with the child;
            (ii) The parent's efforts to communicate and work with the
      department or supervising agency or other individuals for the
      purpose of complying with the service plan and repairing,
      maintaining, or building the parent-child relationship;
             (iii) A positive response by the parent to the reasonable
      efforts of the department or the supervising agency;
             (iv) Information provided by individuals or agencies in a
      reasonable position to assist the court in making this assessment,
      including but not limited to the parent's attorney, correctional and
      mental health personnel, or other individuals providing services to
      the parent;
             (v) Limitations in the parent's access to family support
      programs, therapeutic services, and visiting opportunities,
      restrictions to telephone and mail services, inability to participate in
      foster care planning meetings, and difficulty accessing lawyers and
      participating meaningfully in court proceedings; and
             (vi) Whether the continued involvement of the parent in the
      child's life is in the child's best interest.
RCW 13.34.145(5)(b). However, these factors do not compel any particular

conclusion regarding termination of parental rights. In re Welfare of E.D., 195

Wn. App. 673, 694-95, 381 P.3d 1230 (2016), review denied, 187 Wn.2d 1018,

390 P.3d 351 (2017).

      If the trial court finds that the State has met its burden under RCW

13.34.180, it may terminate parental rights if it also finds by a preponderance of

                                         6
No. 75425-4-1/ 7

the evidence that termination is in the "best interests" of the child.               RCW

13.34.190(1)(b).     The trial court's findings of fact must be supported by

substantial evidence. In re Dependency of K.D.S., 176 Wn.2d 644, 652, 294

P.3d 695(2013).

                                        Services

       Dunbar challenges the sufficiency of the evidence supporting the trial

court's finding that the Department provided him with all necessary services

capable of correcting his parental deficiencies. The Department has a statutory

obligation to provide all services ordered by the court, as well as "all necessary

services, reasonably available, capable of correcting the parental deficiencies

within the foreseeable future." RCW 13.34.180(1)(d). A service is "necessary" if

it is "needed to address a condition that precludes reunification of the parent and

child." A.M.M., 182 Wn. App. at 793. A service is "reasonably available" if it is

"available within the department or supervising agency, or within the community"

or "the     department has existing           contracts to      purchase" it.        RCW

13.34.136(1)(b)(vii). However, if a parent is unwilling or unable to make use of

the services offered or provided, the Department is not required to offer

additional services that might have been helpful. In re Dependency of S.M.H.,

128 Wn. App. 45, 54, 115 P.3d 990 (2005). Moreover, the Department is not

required to offer services that would be futile.3 In re Dependency of T.R., 108

Wn. App. 149, 163, 29 P.3d 1275(2001).


33 In reply, Dunbar asserts that the "futility doctrine" is no longer good law following the
2013 amendments requiring specific considerations for incarcerated parents.
Appellant's Reply Br. at 6-7. Because this conclusory contention is raised for the first
                                               7
No. 75425-4-1/ 8

       Dunbar contends that the Department failed to offer or provide a

psychological evaluation. He asserts that the social worker contacted only one

provider, and after learning that provider did not perform evaluations in jail, made

no further efforts. But Dunbar acknowledged he would not have been permitted

to physically engage with Z.R. during a visit at the jail and, thus, a psychological

evaluation focused on assessing his parenting abilities would have been of

limited value. And Dunbar had not participated in any services throughout the

dependency proceedings, aside from two visits with Z.R.'s therapists. Finally,

even assuming the Department's efforts were insufficient, it is uncontroverted

that Dunbar faced a lengthy prison sentence. As the trial court found,"[Dunbar's]

unavailability to participate in services is a direct consequence of his own choice

to continue to engage in criminal acts, and the duration of his impending prison

sentence renders services futile because no services could render him available

to parent Z.R. in the child's near future." This finding was supported by

substantial evidence.

       Dunbar next argues that because the juvenile court ordered him to

maintain a working telephone number and a safe, stable home, the Department

was required to provide him with "housing or phone services."5 But Dunbar

testified that he always had a working telephone, and that he could also be

reached through his family members. Rather, Dunbar testified at his dependency


time in a reply brief and is unsupported by adequate briefing, we decline to consider it.
See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992).
4 Clerk's Papers(CP) at 188.
5 Br. of Appellant at 20-21.
No. 75425-4-1 /9

trial that it was simply not a priority for him to return the social worker's or the

court appointed special advocate's (CASA) phone calls. And because Dunbar

was incarcerated within a few weeks of the entry of the dispositional order,

housing was not a service the Department could reasonably offer.

         Dunbar claims that the Department failed to refer him to Project SafeCare.

But the trial court found that this service would have only been appropriate had

Dunbar made progress towards reunification, and he had not done so.

         2.27 Ms. Tso did not explicitly offer or provide [Dunbar] with the
              Project Safecare service. She testified that she intended to
              do so once reunification was approaching, since that service
              is meant to provide practical information to be implemented
              in the home while the child is transitioning into the home.
              Reunification has not become imminent, and the service
              cannot be engaged in while the father is incarcerated. The
              father was not responsive to Ms. Tso regarding engaging on
              services prior to his incarceration, and it would have been
              futile to offer him the service of Project Safecare while he
              was incarcerated and could not meaningfully participate.
              Furthermore the service would not have addressed any of
              the father's primary parental deficiencies, or enabled those
              deficiencies to be remedied in the near future.[6]

Dunbar does not challenge this finding. Unchallenged findings of fact are verities

on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001).

         Finally, Dunbar contends that the trial court erred in permitting Tso to

testify that "[n]one of the services previously ordered by the court were available

to [Dunbar] in the jail."7 He argues that Tso's testimony that she looked at the

jail's website, which showed that the jail did not offer Dunbar's court-ordered

services, was inadmissible hearsay.


6   CP at 184.
7 CP   at 184.
                                         9
No. 75425-4-I / 10

        An error in the admission of evidence requires reversal only when the

error is prejudicial. In re Dependency of R.S.G., 174 Wn. App. 410, 433, 299

P.3d 26 (2013) (citing State v. Benn, 161 Wn.2d 256, 268, 165 P.3d 1232

(2007)). An error is prejudicial if it has a substantial likelihood of affecting the

outcome of the case. R.S.G., 174 Wn. App. at 433.

        Here, there is no likelihood the admission of the evidence affected the

outcome of the trial. First, Dunbar corroborated the social worker's testimony

with his own personal knowledge. Dunbar testified that the jail typically did not

offer rehabilitative programs and services because "you're just being housed for

court."8 He also testified that none of his court-ordered services were available in

the jail:

        Uh, I got a, uh — a psych evaluation, and, uhm, it said that I was
        depressed. Uhm, but other than that, there's not really any, uhm —
        they weren't able to offer me any random UAs, or UAs, or anything
        like that. They weren't able to, uh — and all the other classes were —
        had to do with me attending, uh, classes my daughter would be, uh,
        in. So — but other than a psych evaluation, that's all I was able to do
        from in here.[91

Moreover, the court found that even if services had been available, they would be

futile because Dunbar would be incarcerated so long that "no services could

render him available to parent Z.R. in the child's near future."1° Thus, even if the

admission of the evidence was error, it was harmless.




8 Report of Proceedings(RP) at 127.
9 RP at 91.
19 CP at 188.
                                          10
No. 75425-4-1 / 11

                    Continuation of the Parent-Child Relationship

       Dunbar asserts that the Department failed to establish pursuant to RCW

13.34.180)1)(f) that "continuation of the parent and child relationship clearly

diminishes the child's prospects for early integration into a stable and permanent

home" because the trial court failed to properly consider the additional statutory

factors relevant to incarcerated parents. We disagree.

       Barriers

       Dunbar first contends that the trial court failed to consider the barriers to

reunification that he experienced throughout his incarceration.              Specifically,

Dunbar contends that barriers existed because the Department never offered him

any visitation with Z.R. in jail.

       Under RCW 13.34.180(1)(f), the trial court must consider "whether

particular barriers existed as described in RCW 13.34.145(5)(b) including, but not

limited to, delays or barriers experienced in keeping the agency apprised of his or

her location and in accessing visitation or other meaningful contact with the

child." But it is clear that the trial court explicitly addressed this factor:

       2.34 The father has not asked Ms. Tso, either directly or through
            family intermediaries, to arrange visits with [Z.R.] while he
            has been incarcerated, and has not asked the court to
            require visitation.


       2.64 . . . [T]here was no evidence provided about limitations in
            [Dunbar's] access to visiting opportunities with Z.R.,
            restrictions to telephone or mail services, delays or barriers
            [Dunbar] experienced in keeping the department apprised of
            his location and status, difficulty in accessing his lawyer, or
            participating meaningfully in court proceedings. On the
            contrary, evidence at trial established [Dunbar] did not
                                           11
No. 75425-4-1 / 12

              pursue visits with Z.R. and never filed any motions with the
              court to address his services or visitation with Z.R.[Dunbar]
              testified that he did not keep his attorney's contact
              information because he believed it was not necessary and
              that he would make all of his efforts at reunification through
              contacting the social worker.(11)

       The trial court's finding was supported by substantial evidence. Dunbar

never contacted the Department to request visitation, nor did he petition the court

to order that Z.R. be brought to the jail to see him. This was consistent with

Dunbar's conduct prior to his incarceration. Tso, the CASA, and the visitation

supervisor all testified that it was very difficult to contact Dunbar to arrange

visitation and that he frequently did not respond to their calls. Dunbar argued

that he asked his wife to contact the Department on his behalf and arrange visits

for him while he was in jail. But the trial court specifically found this testimony not

credible:

       2.62 [Dunbar] testified he granted his wife, Ms. Shire, power of
            attorney to act on his behalf. No exhibits were offered or
            produced by [Dunbar] to corroborate this claim. Ms. Shire
            also testified about being granted power of attorney, and she
            claimed to have made multiple unsuccessful efforts to
            contact Ms. Tso. Ms. Shire's testimony was not credible for a
            number of reasons: while being sworn in prior to testifying,
             Ms. Shire begrudgingly agreed to testify truthfully; she could
            not recall details; she was evasive when responding to
            questions; and she was openly hostile.

       2.63 . .. Even if Ms. Shire and [Dunbar's] testimony was credible,
            which it was not, efforts were undertaken by Ms. Shire, not
            [Dunbar], and her efforts were not for the purpose of
            complying with services or repairing, maintaining, or building
            the parent-child relationship.[12]



11 CP at 200, 204.
12 CP at 189.
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No. 75425-4-1/ 13

In determining whether substantial evidence supports the trial court's findings,

this court does not weigh the evidence or the credibility of witnesses. In re

Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163(2003).

         Dunbar also contends that the lack of services in jail was a barrier to

reunification and the trial court failed to consider this barrier. But the trial court did

consider this argument and found it unpersuasive, noting that the lack of services

was the result of Dunbar's own choices:

         2.51   By his own choice, [Dunbar] did not participate in services
                prior to being incarcerated in the jail, and he has been
                unavailable to participate in services since he has been
                incarcerated. [Dunbar's] unavailability to participate in
                services is a direct consequence of his own choice to
                continue to engage in criminal acts, and the duration of his
                impending prison sentence renders services futile because
                no services could render him available to parent Z.R. in the
                child's near future.[13]

And the trial court also found that, even prior to his incarceration, Dunbar "was

aware of the services he was required to comply with, but [had] an extremely

poor attitude about the dependency proceeding and [was] dismissive of Z.R.'s

special needs."14 These findings were supported by substantial evidence.

         Meaningful Role

         Dunbar next contends the trial court failed to properly assess whether he

maintained a meaningful role in Z.R.'s life. Again, it is clear that the trial court

explicitly considered this factor:

         2.59 [Dunbar] has not maintained a meaningful role in Z.R.'s life
              while incarcerated.


13   CP at 188.
14   CP at 187-88.
                                           13
No. 75425-4-1/ 14


         2.60 Except for asking the CASA, Ms. Elisabeth Yaroschuk, one
              time to tell Z.R. that he loved her, [Dunbar] has not made
              expressions or acts manifesting concerns for Z.R., such as
              letters, phone calls, visits, or other forms of communication
              with Z.R. In fact, by his own testimony, it is uncontroverted
              that while incarcerated [Dunbar] never communicated with
              Z.R. in any manner, nor did he request visits with her.

         2.61 [Dunbar] testified he believes he maintained a relationship
              with Z.R. to the best of his abilities. This testimony is not
              credible and is not supported by any evidence. To the
              contrary, [Dunbar's] assertion is controverted by
              overwhelming evidence.1151

These findings were supported by substantial evidence, including Dunbar's own

admissions.

         RCW 13.34.145(5)(b) Factors

         Finally, Dunbar argues that the trial court's findings regarding barriers to

reunification and the role he played in Z.R.'s life were not informed by the six

factors identified in RCW 13.34.145(5)(b). The record does not support this

claim. For example, the trial court found that Dunbar had made no "expressions

or acts manifesting concerns [sic]" for Z.R. because he had never attempted to

contact her, nor did he contact the Department to ask how she was doing. The

trial court also found that Dunbar "did not [make] efforts to communicate and

work with the department."16 The trial court found that there was no evidence

that Dunbar was unable, by virtue of his incarceration, to contact the social




15   CP at 189.
16   CP at 189.
                                          14
No. 75425-4-1/15

worker or his attorney or to participate in court hearings.17 The trial court noted

that, while Tso could have visited Dunbar more frequently at the jail, the

Department's efforts overall were reasonable because no service would have

addressed the fact of his lengthy incarceration. Finally, the trial court found that

"[t]o the extent that[Dunbar] can be said to have had any significant involvement

in the child's life up until this point, continued involvement of the father in Z.R.'s

life is not in the child's best interest."18 The trial court did not err in failing to

consider the RCW 13.34.145(5)(b)factors.19

                          Little Likelihood of Reunification

       Dunbar argues that the trial court erred in finding that there was little

likelihood that that Z.R. could be returned to him in the near future. He asserts

that the trial court should have considered his amenability to treatment and

commitment towards remedying his parental deficiencies.

       The focus of RCW 13.34.180(1)(e) is whether a parent's identified

deficiencies have been corrected. In re Dependency of D.L.B., 188 Wn. App.

905, 922, 355 P.3d 345 (2015). "Even where there is evidence that the parent

may eventually be capable of correcting parental deficiencies, termination is still

appropriate where deficiencies will not be corrected within the foreseeable

future." In re Welfare of A.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010).

17 Two court hearings took place while Dunbar was incarcerated. He did not attend the
first, which occurred only a few days after his arrest and before Dunbar's family
members informed the Department where he was. He did attend the second via
telephone. RP at 207, Ex. 12.
18 CP at 190.
19 Because the trial court in this case made specific written findings regarding its
consideration of the incarcerated parents' factors, we need not address Dunbar's claim,
raised for the first time in reply, that Civil Rule 52 compels a trial court to do so.
                                          15
No. 75425-4-1 /16

Although the law provides no numerical standard to measure the foreseeable

future, this determination is a factual inquiry evaluated from "the child's point of

view," which varies with the child's age. In re Dependency of A.C., 123 Wn. App.

244, 249, 98 P.3d 89(2004).

       Tso testified that the near future for Z.R. was three to six months. She

estimated that even if Dunbar were released from jail immediately, it would take

approximately a year to a year and a half for Dunbar to demonstrate that he

understood Z.R.'s needs and could provide a safe, stable home for her. And

Dunbar does not challenge the trial court's findings that "[d]ue to her needs [Z.R.]

requires more attention from a caretaker than an average child" and "because of

Z.R.'s significant special needs, she will need close monitoring and support."2°

Dunbar's history prior to incarceration suggested he was not motivated to learn

about Z.R.'s special needs. And Dunbar was likely facing several years of

incarceration. Under the circumstances, there was no likelihood that conditions

would be remedied to permit Z.R.'s return in the near future.

       We affirm the trial court's order terminating Dunbar's parental rights to

Z.R.

                                               1(%•   kc          PI
WE CONCUR:




                                                                  jr
2° CP at 185.
                                        16
