                                                     COURT CF APPEAL-5 DIVA
                                                     .51-ATE OF WASHING1 ON

                                                      2018 JUL 23 tk1110: 15



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

                             )
In Matter of Dependency of R.M.R.,                 No. 77192-2-1
date of birth: 04/03/11,     )
                             )
                Minor Child. )
                             )
WASHINGTON STATE DEPARTMENT)
OF SOCIAL & HEALTH SERVICES, )
                             )
                Respondent,  )
                             )
           v.                )
                             )                     UNPUBLISHED OPINION
GERALD G. GOTCHER,           )
                             )                     FILED: July 23, 2018
                Appellant.   )
                             )

       VERELLEN, J. —After a dependency of five-and-a-half years, the juvenile

court terminated the parental rights of the appellant father to his six-year-old

daughter. Shortly after his daughter's first birthday, the father stopped

participating in her dependency proceeding. He moved to another city, stopped

visiting his child, and did not complete any of the court-ordered services. He had

no contact with his daughter for more than five years. Despite his efforts shortly

before trial to reengage in the proceeding, substantial evidence supports the

court's findings that the father is currently unfit to parent his child and the

Department of Social & Health Services (Department) offered all necessary and
No. 77192-2-1/2


reasonably available services capable of correcting parental deficiencies in the

near future. We affirm.

                                       FACTS

       Gerald Gotcher and R.M.R.'s mother1 married around the time of R.M.R.'s

birth in 2011. Gotcher's name is listed as the father on R.M.R.'s birth certificate.

Gotcher has an older child who resides with her mother in California. Gotcher's

older child has never lived with him, but he has telephone contact with her and

provides occasional financial assistance to her.

       The Department became involved with the family at the time R.M.R. was

born and offered some medical and public health services to the mother. The

Department took custody of R.M.R. when she was five months old, after the

mother entered a substance abuse treatment program and Gotcher was unable to

care for the infant on his own. After the Department took R.M.R. into protective

custody, Gotcher and the mother moved to Portland, Oregon to live with family.

The Department placed R.M.R. in licensed care nearby in Vancouver,

Washington. R.M.R. has remained in the same foster care placement throughout

the dependency except for a period of approximately one year, in 2015, during a

failed attempt to reunite R.M.R. with her mother.

       When she was placed in licensed care as an infant, R.M.R. was

underweight, had poor muscle tone, crossed eyes, and was unable to tolerate



       1 R.M.R.'s mother entered into a stipulated open adoption agreement and
termination order.



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No. 77192-2-1/3


being held or fed normally. She appeared to have some developmental delays.

However, R.M.R. made progress quickly and, within seven months, she was

developmentally on track.

       In December 2011, the court entered an agreed order of dependency for

R.M.R. as to Gotcher. The stipulated statutory basis for the dependency was the

absence of a parent capable of providing adequate care for R.M.R. The agreed

factual basis included the parents' abandonment of R.M.R., Gotcher's criminal

history, lack of stable housing, and urinalysis test results indicating his use of

marijuana and alcohol. The agreed-upon dispositional provisions required

Gotcher to (1) obtain a drug and alcohol evaluation and follow all treatment

recommendations,(2) participate in twice-weekly random urinalysis testing, and

(3) obtain a parenting assessment and follow all recommendations. The

dependency order also provided for supervised visitation with R.M.R. three times

per week.

       In the beginning, Gotcher actively participated in the dependency, and for

the first few months, he consistently visited R.M.R. Gotcher obtained a drug and

alcohol evaluation which did not recommend substance abuse treatment

contingent on Gotcher's successful completion of 90 days of urinalysis testing. He

also obtained a psychological evaluation. The psychologist recommended that

Gotcher complete an anger management assessment and follow the

recommendations based on that assessment, participate in parenting classes,

continue random urinalysis while his daughter remains in state custody, and




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No. 77192-2-1/4


maintain stable employment. Gotcher engaged in some urinalysis testing but did

not complete the required 90 days.

          Gotcher testified that just after R.M.R.'s first birthday, the mother informed

him that he was not the child's father, and the couple separated. In June 2012,

Gotcher visited R.M.R., and the visitation supervisor asked him to leave because

he smelled of alcohol and appeared to be under the influence. This was the last

time Gotcher saw R.M.R. Shortly after this incident, the social worker assigned to

the case arranged a meeting with Gotcher in Portland. During the meeting,

Gotcher told the social worker that he did not have stable housing or income. He

mentioned that he was considering relocating to the Seattle area. The social

worker urged him to maintain contact with her and let her know where he was

living.

          Gotcher moved to the Seattle area shortly after this meeting. He did not

contact the Department to provide new contact information, request referrals for

services in his new area, or request visits with R.M.R. The social worker was

unable to reach Gotcher.

          In 2013, a social worker who took over the case while a colleague was on

medical leave successfully reached Gotcher using a new telephone number

provided by R.M.R.'s mother. The social worker introduced himself, provided his

contact information, and requested permission for the foster parents to travel with

R.M.R. Gotcher did not ask about services or visits. When the social worker later

tried to contact Gotcher again, the telephone number was no longer in service.




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No. 77192-2-1/5


Eventually, at the end of 2013, the social worker conducted a jail search and

learned that Gotcher was confined in the Snohomish County jail. Gotcher pleaded

guilty to assault in the third degree in November 2013 bas0 on a stabbing

incident and was sentenced to eight months in jail.

         The court appointed special advocate (CASA), who was appointed to the

case in 2011, visited both parents in Portland early on in the case. However, the

CASA was unable see Gotcher again until she visited him in jail in Snohomish

County at the end of 2013. At that time, when the CASA tried to discuss services,

Gotcher became angry because he believed he had completed all the required

services and thought that R.M.R. should be placed in his care upon his release.

Gotcher told the CASA that he planned to rent a room in Everett after his release.

The CASA left her contact information for Gotcher and the contact information for

his attorney. Gotcher agreed to get in touch with the CASA when he was released

so they could review the status of his services. But Gotcher did not contact the

CASA and she did not see him again until they met in court more than three years

later.

         The child support division sent notices to Gotcher starting in 2011 regarding

his child support obligation. Gotcher did not pay any of the child support for R.M.R.

and, by the time of trial, he had been assessed over $15,000 in back support.

Eventually, in 2016, Gotcher called and reported to the support enforcement

officer that he did not know if he was R.M.R.'s father and indicated that he wanted

paternity testing.




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No. 77192-2-1/6



        In the meantime, a new social worker was assigned to R.M.R.'s case in

2015. She did not know Gotcher's whereabouts and attempted to contact him

using the information in the file and through his attorney. Then in October 2016,

around the time of Gotcher's contact with the child support division, Gotcher called

the social worker and indicated that he wanted to pursue deoxyribonucleic acid

(DNA)testing. He explained that he had been inactive in the dependency case

after the mother told him he was not R.M.R.'s father. The DNA testing Gotcher

requested was scheduled in November 2016. R.M.R. was swabbed for a DNA

test, but Gotcher did not keep his appointment. The social worker provided

information to Gotcher about resources for services and made referrals for an

anger management assessment, a new drug and alcohol evaluation, and

parenting classes. The social worker also sent service letters to Gotcher's current

address to remind him of the dependency order's requirements.

        In January 2017, the Department filed a petition to terminate parental rights.

Gotcher and the social worker spoke again in March 2017 about referrals for

services. He did not ask to visit R.M.R. After meeting the CASA again in court in

2017, Gotcher had several conversations with her about services available in his

area.

        Sometime around May 2017, a month before the termination trial, Gotcher

requested visitation with R.M.R. He was frustrated by initial logistic delays in

organizing the visits. On May 31, Gotcher sent an e-mail message to the social

worker explaining that it was critical for him to restart visits before the upcoming




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No. 77192-2-I/7



trial to "avoid" an argument that he had no recent contact with R.M.R. He also

suggested that it would be a "good idea" to move R.M.R. to a foster care

placement that was closer to him in order to facilitate visits.

       While the Department was initiating the process for Gotcher's visits,

R.M.R.'s foster parents expressed concerns to the social worker that visitation

between R.M.R. and Gotcher would be traumatic and harmful to the child. R.M.R.

had experienced difficulties following the failed reunion with her mother and had

been referred for mental health counseling. She had been diagnosed with

adjustment disorder with anxiety. The social worker spoke to R.M.R.'s counselor.

The counselor believed that in light of the challenges R.M.R. experienced when

she was separated from her foster parents and placed with her mother, any

reintroduction to Gotcher should be slow and gradual and done in conjunction with

supportive services such as family therapy. Based on her conversations with the

foster parents and the counselor, the social worker decided to suspend the

process of setting up visitation.

       The trial took place over four days in June 2017. R.M.R. was six years old

and about to enter first grade. She had not seen Gotcher in five years and had

been out of his care almost six years. Gotcher testified that for approximately four

years, he had been living in a house in Granite Falls, Washington with his

girlfriend, her five children, and her father.2 Gotcher said that after he moved to




       2 Gotcher testified   that he and R.M.R.'s mother were still legally married.



                                            7
No. 77192-2-1/8



the Seattle area, he had no idea how to contact the social worker or anyone else

involved in the case.

      At the time of trial, Gotcher was actively participating in some court-ordered

services but had yet to complete them. He was taking parenting classes. The

week before the trial, he completed an anger management/domestic violence

assessment. The evaluator recommended that Gotcher complete three months of

moral reconation therapy due to his elevated score on a domestic violence

inventory.3 The evaluator acknowledged that if he had been aware that Gotcher's

2013 assault involved stabbing someone multiple times, he would have also

recommended a psychological evaluation because the incident suggested a "rage

component" that required something "way beyond anger management." Gotcher

did not engage in moral reconation therapy nor did he obtain an updated drug and

alcohol evaluation. He began urinalysis testing again but only completed three

tests, which did not encompass testing for alcohol.

      The CASA testified that Gotcher never asked about R.M.R. in his

conversations with her. She questioned his ability to parent his daughter due, in

part, to his anger issues and history of assaults. The CASA pointed out that

Gotcher had not demonstrated an ability to meet R.M.R.'s needs because he does

not know her needs and had shown little interest in learning about her. She

opined that Gotcher lacked empathy and an understanding of R.M.R.'s


      3 According  to the record, as least one of Gotcher's prior assault convictions
was a domestic violence offense.
        Report of Proceedings(RP)(June 20,2017) at 191.



                                         8
No 77192-2-1/9


circumstances, as demonstrated by his suggestion that the Department should

remove her from the only stable home she has known to make visitation easier for

him and his position that he could take custody of her immediately upon making

some adjustments to the household's sleeping arrangements. According to the

CASA, R.M.R. understood the concept of a permanent home and had consistently

expressed her desire for a "forever home" since she was three or four years old.

The CASA believed that R.M.R. had already waited too long for a permanent and

stable home.

       According to the social worker assigned to the case at the time of trial,

reuniting R.M.R. with Gotcher in the foreseeable future was not realistic

considering Gotcher's unresolved anger issues and lack of relationship with

R.M.R. The social worker said that in order to determine if and when a reunion

could happen, Gotcher would need to successfully complete anger management

treatment, obtain an updated drug and alcohol evaluation, and successfully

complete urinalysis testing for a sustained period of time. Most importantly, he

would need to demonstrate the commitment and ability to be a parent to R.M.R. in

light of his prolonged absence from her life. She estimated that the process of

completing services and developing a relationship with his daughter would take at

least six months or a year, or longer, given R.M.R.'s diagnosis of anxiety, a time

frame that is not within the foreseeable future for R.M.R. The social worker also

had concerns about the practicality of placing R.M.R. in Gotcher's care given his




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No. 77192-2-1/10


testimony that he regularly works six days per week in a tattoo parlor, from noon

until midnight or later.

       After considering the testimony of 11 witnesses and approximately 30

exhibits, the court entered numerous findings of fact and conclusions of law and

an order terminating Gotcher's parental rights. He appeals.

                                     ANALYSIS

       Under the termination statutes, the juvenile court may order termination of

parental rights if the State proves the six statutory elements of RCW 13.34.180 by

clear, cogent, and convincing evidence and the court finds that termination is in

the child's best interests.5 Only one of the six statutory elements under

RCW 13.34.180(1) is at issue in this appeal:

             (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.[6]




       5 RCW 13.34.190; In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976
P.2d 113(1999).
       6 The other statutory elements are "(a) That the child has been found to be
a dependent child;(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;(c) That the child has been removed 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;...(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 the continuation of the parent and child
relationship clearly diminishes the child's prospects for early integration into a
stable and permanent home. RCW 13.34.180(1).



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No. 77192-2-1/11


       In addition to proving the statutory elements, due process requires the court

to "make a finding of current unfitness before parental rights can be terminated."7

"Satisfying all six of the statutory elements raises an implied finding of parental

unfitness."8

       Clear, cogent, and convincing evidence is evidence that shows the ultimate

fact at issue to be highly probable.8 We give deference to the trial court in

weighing the evidence and witness credibility.10 "The court's factual findings must

be upheld if supported by substantial evidence from which a rational trier of fact

could find the necessary facts by clear, cogent, and convincing evidence."11

Evidence is substantial if it is sufficient to persuade a fair-minded person of the

truth of the fact at issue.12

       Gotcher contends that the Department failed to offer all necessary and

reasonably available services, such as structured or therapeutic visitation or

attachment services, that would have allowed him to build a relationship with

R.M.R. and ultimately to reunify with her. He also challenges the court's finding of

parental unfitness.




       7 In   re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75(2016).
       8   Id.
       9 K.S.C., 137 Wn.2d at 925.
       1° In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
       11   K.S.C., 137 Wn.2d at 925.
       12   In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011).



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No. 77192-2-1/12


       Read as a whole, it is clear that the court's finding of unfitness hinges on

the fact that Gotcher "simply chose not to be involved in his daughter's life."13

Gotcher has not lived with R.M.R. since she was five months old, and he has not

seen her since she was a year old. She does not know him. We defer to the

court's finding that Gotcher was not credible when he claimed that he was

uninvolved in the dependency for five years because he did not know how to

contact the Department. His conduct manifested a lack of commitment to

parenting R.M.R., and as the court observed, his explanation is belied by the fact

that after he reached the social worker in October 2016, he lost interest "almost

immediately" and did not respond again to the Department's attempts to engage

him until months later, March 2017.14

       The record also supports the court's finding that Gotcher lacks insight into

his daughter's needs and has unaddressed anger issues. He demonstrated a lack

of concern for his daughter by suggesting that the Department remove her from

her long-term foster care placement for his convenience. And, as the court noted,

Gotcher's testimony that R.M.R. could be placed in his care within 24 hours

reveals his lack of knowledge about her needs and about the lengthy process that

would be required to carry out a hypothetically possible transition to his care.

Since the dependency was established in 2011, Gotcher has been convicted of

assault based on a stabbing incident, and he has not engaged in moral reconation



       13 Clerk's   Papers(CP) at 240 (Finding of Fact 2.7.7).
       14   Id.



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No. 77192-2-1/13


therapy nor any other treatment directed toward his propensity for anger and

violence. Substantial evidence in the record supports the court's findings that

Gotcher was currently unfit to parent his daughter.

       Substantial evidence also supports the finding that the Department offered

all necessary and reasonably available services capable of correcting his parental

deficiencies within the foreseeable future. The Department offered all court-

ordered services to Gotcher. He undertook some but not all of the services

required. As noted, he did not begin the treatment recommended to address his

anger, did not obtain updated evaluations, or complete the recommended

urinalysis testing. While Gotcher claims that the Department unjustifiably withheld

visitation without concrete evidence that it would cause distress or harm to R.M.R.,

he ignores the fact that he did not ask to resume visits with his daughter until the

month before trial. The evidence supports the court's finding that any transition

would be a long and gradual process and, even if successful, there was a strong

possibility of adjustment problems that would require up to six months of therapy.

According to the social worker's estimate, the process of completing services and

establishing a relationship with R.M.R. would take at least six months to a year, if

not longer, given R.M.R.'s prior experience and diagnosis of anxiety.

       Although Gotcher assigns error to several findings, his briefing focuses of

the court's finding drawing upon similarities between this case and the

circumstances in K.M.M. Gotcher contends that the court's reliance on K.M.M. is

misplaced. The court found:




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No. 77192-2-1/14


       As with the father in In re Matter of K.M.M., 186 Wn.2d 466, 379
       P.3d 75 (2016), Mr. Gotcher has no existing parent-child relationship
       with [R.M.R.]. When looking [at] parental deficiencies, best interest
       analysis and current unfitness, the court looks at the needs and
       circumstances of the specific child before the court. The father made
       a conscious decision to drop out of her life. There is no service
       capable of correcting that severed relationship in [R.M.R.'s] near
       future.(161

       First, Gotcher's claim that the Department was required to facilitate

visitation fails because, while undeniably important for reunification, it is well

settled that visitation is not a service for the purposes of proving

RCW 13.34.180(1)(d).16 The statute's reference to "services" required under

RCW 13.34.136, includes "domestic violence counseling, parenting classes, drug

and alcohol counseling," random urinalysis, and other similar services.17

Visitation, on the other hand, is not rehabilitative in and of itself. Nor is this a

situation "where visitation is part of a required service," such as an interactive

parenting class.18 As the court recognized, Gotcher's decision after June 2012 to

"make himself a stranger" to his daughter created a barrier to any possible

reunification with her in the foreseeable future.16 This unfortunate circumstance

does not transform visitation into a service the Department was required to provide

in order to meet its burden under RCW 13.34.180(1)(d).


       15   CP at 240(Finding of Fact 2.7.9).
      '6    1n re Dependency of T.H., 139 Wn. App. 784, 791-92, 162 P.3d 1141
(2007).
       17Id. at 791 (quoting In re Dependency of A.A., 105 Wn. App. 604, 608-09,
20 P.3d 492(2001)).
       18   Id. at 792.
       19 CP   at 241 (Finding of Fact 2.10).



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No. 77192-2-1/15



       Second, Gotcher fails to demonstrate any error with respect to the decision

in K.M.M. There, the court held that where there was no bond between the parent

and child at the time of trial and that there was no service capable of remedying

that condition within the child's foreseeable future, the parent was currently unfit

and the Department had met its obligation to offer all necessary and reasonably

available services capable of correcting parental deficiencies within the

foreseeable future.2° The court explained that the absence of attachment to a

parent is a condition that interferes with a parent's ability to provide for a child's

health, safety, and well-being and may ultimately render a parent unfit.21

       Here, too, Gotcher acknowledged that he had no existing relationship with

his six-year-old child at the time of trial. But Gotcher points out that the Department

declined to arrange visitation for him in 2017, whereas the Department suspended

visitation in K.M.M. only after there were demonstrably adverse effects on the

child.22 He fails to recognize, however, that even if the Department had arranged

for him to visit R.M.R. in the weeks before the trial, this would not have changed the

fact that Gotcher had been absent for the preceding five years of his young child's

life and, as a result, he had no existing bond with her.

       In K.M.M., the court concluded that even if the parent-child attachment

could be restored at some point in future, there was nothing in the record to

indicate that such restoration could be accomplished within a time frame that


       20   K.M.M., 186 Wn.2d at 487, 494.
       21   Id. at 493-94.
       22   Id. at 475.


                                           15
No. 77192-2-1/16



would be "conducive to K.M.M.'s emotional development and well-being."23

Likewise here, the record supports the court's determination that the time that

would be required for Gotcher to address his anger issues, to establish a parent-

child relationship, and to allow for a "hypothetically possible gradual transition" to

his care would be "well beyond the near future for this 6 year-old child."24 The

facts critical to the court's holding in K.M.M. are analogous to the facts here.

       In contrast, the facts are significantly different from those present in In re

Parental Rights to B.P., where the court reversed an order of termination because

the Department failed to offer or provide bonding and attachment therapy for the

mother and her five-year-old child.25 There, the mother was successfully

addressing her drug addiction, had custody of a younger child, and the State

conceded that she was a fit parent to the younger child. The mother was also

having regular, consistent visitation with B.P. and the visits were going well. The

only question was whether B.P. could psychologically detach from her foster

parents and attach to her mother as her primary caregiver. In reversing the

termination order, the court observed that there was no evidence to suggest that

the Department withheld bonding and attachment services because "those

services would have failed or taken too long."26 But here, Gotcher had no contact

with his child for more than five years. The record supports the court's conclusion


       23   Id. at 487.
       24 CP at 240(Finding of Fact 2.7.8).
       25 186 Wn.2d 292, 376 P.3d 350(2016).

       26   Id. at 318.



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No. 77192-2-1/17



that any service capable of restoring the parent-child relationship simply would

have taken too long.

       In sum, substantial evidence supports the trial court's findings that the

Department offered all necessary and reasonably available services to Gotcher

and that he was currently unfit to parent R.M.R. By the time of trial, Gotcher's

daughter had been out of his care for virtually her entire life, and he had failed to

fulfill any parental responsibilities for many years. His belated interest in becoming

involved in R.M.R.'s life in the months before trial was insufficient to demonstrate

true motivation and commitment to parenting. The Department's unwillingness to

facilitate visitation in 2017 was not the reason for the nonexistence of a parent-

child relationship. There was nothing the Department could have done in May or

June of 2017 to remedy the lack of a relationship or to resolve parental

deficiencies to allow reunification within the near future.

       Affirmed.




WE CONCUR:




  N    urui, icr




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