### FILED JUNE 4,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OFWASHINGTON DIVISION THREE In re the Welfare of: ) No. 32437-1-111 ) B.P. ) (DOB: 7/8/11) ) ) PUBLISHED OPINION ) ) BROWN, J. - H.O. appeals the termination of her parental rights over B.P. H.O. contends sUbstantial evidence does not support the court's findings that (1) all necessary services were expressly and understandably offered or provided her, (2) little likelihood existed to remedy conditions so B.P. could be returned to her in the near future, (3) her continued parent-child relationship diminished B.P.'s prospects for early integration into a stable and permanent home, (4) terminating her parental rights was in B.P.'s best interests, and (5) she was unfit to parent B.P. We disagree and affirm. FACTS Soon after B.P.'s birth on July 8,2011, the Department of Social and Health Services (Department) became involved with her and herfamily. The Department had previously been involved with the mother and herthree other children who are no longer in her care. A hospital hold was placed on B.P. at birth because she was withdrawingNo. 32437-1-111 In re Welfare ofB.P.

from methamphetamine, which H.O. exposed herto during pregnancy. The mother has been a long time user of illegal substances, including heroin and methamphetamine. On July 13, 2011, the Department petitioned for dependency, alleging parental deficiencies based on substance abuse, domestic violence, mental health, and parenting skills. The Department then removed B.P. from the mother's care, and after a shelter care hearing, B.P. remained in foster care. The mother agreed to participate in random drug and alcohol testing, hands-on parent training, and mental health treatment. Later, H.O. entered inpatient treatment at Isabella House, a six-month inpatient program incorporating parenting services. Isabella House permits the placement of children with their mothers at the facility. Initially, the mother entered Isabella House without B.P., but based in part on the mother's progress while there, B.P. was allowed to stay with H.O. on September 27,2011. While H.O. was at Isabella House, the Department referred herto Carla Paullin for individual counseling. Ms. Paullin indicated she learned the mother had a traumatic childhood, an extensive criminal record, a lengthy history of substance abuse and relapse, and failed to parent her children for quite some time. Ms. Paullin concluded the mother presented symptoms consistent with personality disorderthat exacerbated the mother's impulsivity, inability to cope, and poor decision-making. Further, Ms. Paullin believed the motherwas extremely institutionalized, making her ability to improve and stay sober largely contingent upon her presence in highly-structured settings.

2No. 32437-1-111 In re Welfare ofB.P.

In February 2012, H.O. completed inpatient treatment at Isabella House. Then, she and B.P. moved to a transition home where women who have completed the inpatient program can live while they are looking for permanent housing ifthey follow certain rules. Isabella House evicted H.O. from the transition home in June 2012 when I

# ~ H.O. relapsed, causing the court to remove B.P. from H.O.'s care. 

# 1 'I Into the fall of2012, .H.O. continued to use methamphetamine. H.O. had not 

# 1 • been engaging in services and had been sporadically visiting B.P. H.O. admitted she } 

### , I had been high during those visits. 

### 1 In May 2013, a pregnant H.O. reentered Isabella House. She gave birth in June

### -~ I 

### f , 2013 to A.O. That summer, the mother began working with a new individual counselor, 

# I J Sandra Gorman-Brown. Treatment focused on the mother's capacity to process traumatic events from her past. H.O still had unresolved emotional issues directly 

### I related to her past, which has been and continues to be a significant barrierto her .\ 

# I recovery as it has caused her maladaptive coping strategies. According to her 

# I individual counselor, the mother struggles to "feel her feelings," which has made her 

# I unable to have empathy-a significant skill needed to parent children. Clerk's Papers at 1 ! 

## i 168. 

## I .1 H.O. graduatedfrom Isabella House in December of2013. She began outpatient 

# t J 1 treatment with Partners with Families and Children, which provides a full range of 

### , i services for children who have suffered abuse and/or neglect as well as provides mental health and chemical dependency treatmentfor parenting individuals and their family

3 

### i 

### I JNo. 32437-1-111 In re Welfare ofB.P.

members. At the time oftrial, H.O.'s Partners counselor testified H.O. had missed some support group meetings and thus was noncompliant with her outpatient treatment. In August 2013, the court ordered supervised visits between H.O. and B.P. Lori 

# I I Eastep, afamily therapist, supervised. Between October 2013 and February 2014, Ms. Eastep had 22 therapeutic visits with H.O. and B.P., with each visit lasting two hours. The main focus was B.P.'s complete disconnectfrom the mother created by the mother's absence from B.P.'s life. As Ms. Eastep opined, children are just beginning to attach to their caregivers at this critical stage. Due to H.O.'s choices, B.P. had to endure multiple placements that not only inhibited B.P.'s attachment to her mother but complicated B.P.'s capacity to attach generally. Ms. Eastep believed B.P. would never be able to form a real attachmentto the mother and that forcing B.P. to do so would significantly injure B.P.'s mental health. In November 2013, H.O., B.P. and A.O. met with Carol Thomas for a parenting assessment. Regarding healthy attachment, Ms. Thomas indicated the window essentially closes afterthe first year of life. Having healthy attachment is critical to an individual's mental health. Ms. Thomas observed no evidence ofattachment between B.P. and the mother; at best. any connection between mother and child was characterized as a developing social relationship. Ms. Thomas reviewed B.P.'s placement history. Given B.P.'s age and the number ofdisruptions in placement she had experienced, Ms. Thomas felt B. P. would struggle with forming healthy attachments

4 

# J

# I

1 ! No. 32437-1-111 In re Welfare ofB.P. I 

## I more than average children, and anyfurther disruptions in placement would increase 

# I 

# I the likelihood B.P. would never be able to form a healthy attachment. 

## ! At the termination trial, Ms. Eastep described H.O.'s relationship with B.P. as a 

# I social relationship with an emerging emotional aspect. She further noted an individual's 

# I

own mental and emotional well-being were fundamental to meet a child's needs. Here, 

# j the motherwas not able to do that for B.P. I H.O.'s current counselor, Ms. Gormon-Brown also testified to her.concerns about 

# 1 I I B.P returning to H.O.'s care and noted H.O. could not be emotionally available to B.P. 

## 1 B.P.'s guardian ad litem Karen Schweigert testified B.P. was in H.O.'s care "from 

# I September 2011 to June 2012 and B.P. did fairly well. She testified the relationship j 

# j between H.O. and B.P. initially was remarkable and "[w]hen [H.O.'s] sober, she is a 

# I**~** really good mother." Report of Proceedings (RP) at 240. Ms. Schweigert admitted she j ;:j j has not seen H.O. and B.P. together since their visits resumed in August 2013. She 

# 1 I described B.P. as a happy, healthy, and outgoing girl. Ms. Schweigert testified B.P. I 

## j "still has some issues as far as adjusting to disruptions in her schedule." RP at 230-31. j

# I t**~** 

# I She acknowledged that although it took B.P. some time to get used to the visits with H.O., B.P. adapted. Ms. Schweigert testified to her concerns about H.O.'s ability to put B.P.'s needs 

### ! ahead of her own. She acknowledged her concerns about H.O.'s decision making based primarily from information she received from B.P.'s current foster parents. When 

## 1 I asked to identify H.O.'s parenting deficiencies, Ms. Schweigert testified H.O. had not



### 5No. 32437-1-111 In re Welfare ofB.P.

had an opportunity to parent by herself outside ofstructured settings. Ms. Schweigert testified she does not think B.P. can be reunified with H.O., because B.P. is attached to herthen current placement. She stated her significant concern for B.P. is her lost attachmentto H.O. Lastly, Ms. Schweigert testified termination of H.O.'s parental rights is in B.P.'s best interests. The trial court determined the Department satisfied its burden under RCW 13.34.180. The trial court issued an oral ruling and later entered written findings offact and conclusions of law. The trial court specifically found the Department had established each element of RCW 13.34.180 by clear, cogent, and convincing evidence. It expressly found H.O. was currently unfit to parent and that termination ofthe mother's parental rights were in B.P.'s best interest. H.O. appealed. ANALYSIS A. Necessary Services The issue is whether the trial court erred byfinding that all necessary services were expressly and understandably offered or provided. H.O. contends substantial evidence does not support this finding and specifically argues the Department failed to offer attachment therapy to her. Parents have a fundamental liberty interest in the care, custody, and companionship oftheir children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,71 L. Ed. 2d 599 (1982). As such, the State may interfere with parents' rights "only for the most powerful of reasons." In re S.J., 162 Wn. App. 873, 880,256 P.3d

6No. 32437-1-111 In re Welfare ofB.P.

470 (2011) (quoting In re Welfare ofAJ.R., 78 Wn. App. 222. 229,896 P.2d 1298 (1995». When the parental actions may cause harm ora risk of harm to the child, the State has a right and responsibility to protect the child. AJ.R., 78 Wn. App. at 229; In re Custody ofSmith, 137 Wn.2d 1,18,969 P.2d 21 (1998). Therefore, "reunification must be balanced against the child's right to basic nurture, physical and mental health, and safety; ultimately, the child's rights and safety should prevail." In re Welfare ofAG., 155 Wn. App. 578,589,229 P.3d 935 (2010). Washington courts use a two-step process to determinewhetherto terminate parental rights. RCW 13.34.180(1); In re Welfare ofAB., 168Wn.2d 908, 911, 232 P.3d 1104 (2010). The first step focuses on the adequacy ofthe parents and requires the State to prove the six statutory elements of RCW 13.34.180(1) by clear, cogent and convincing evidence. RCW 13.34.190(1)(a); In re AB., 168 Wn.2d at 911. The six statutory elements required by the first step are as follows: (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 orwill, at the time ofthe hearing, have been removed from the custody ofthe parent for a period ofat least six months pursuant to a finding ofdependency; (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 ofcorrecting the parental deficiencies within the reasonable future have been expressly and understandably offered or provided; (e) Thatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent in the nearfuture. A parent's failure to substantially improve parental deficiencies within twelve months following entry ofthe dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the nearfuture. 7

# t

j

No. 32437-1-111 In re Welfare ofB. P. (f) That continuation ofthe parent and child relationship clearly diminishes the 

## 1 child's prospects for early integration into a stable and permanent home. 

# I RCW 13.34.180(1). H.O. first challenges the court's findings regarding (d). We review the court's findings offact under RCW 13.34.180(1)for substantial 

## 1 evidence from which a rational trier offact could find the necessary facts by clear, 

# 1 

# j cogent and convincing evidence. In re DependencyofK.S.G., 137 Wn.2d 918,925, 976 P.2d 113 (1999). Evidence is substantial if it is sufficient to persuade a fair-minded 

# I person ofthe truth ofthe matter asserted. S.J., 162 Wn. App. at 881. Clear, cogent**~** ,1 and convincing evidence exists when the ultimate fact at issue is "highly probable." 

# ! I I K.S.G., 137Wn.2d at 925. We deferto the trial court's evidence weight and witness credibility determinations. In re Welfare ofL.N.B.-U., 157 Wn. App. 215, 243, 237 P.3d 

# I I 

# I 944 (2010). The party claiming error has the burden ofshowing a finding offact is not supported by substantial evidence. FisherProperties v. Arden-Mayfair, 115Wn.2d 364, 369, 798 P.2d 799 (1990). 

## 1 Under RCW 13.34.180(1), the Department must offer all necessary seNices, 

## 1 

# i capable of correcting H.O.'s parental deficiencieswithin the reasonable future. J Here, the Department referred H.O. to Ms. Eastep to provide family therapy. Ms. Eastep is a licensed independent clinical social worker with knowledge about attachment. In August 2013, Ms. Eastep was court ordered to conduct a therapeutic 

# j contact between B.P. and her mother and eventually conducted 22 sessions with them. 

# I I Ms. Eastep testified they wentfrom no relationship, to a social relationship to an emerging emotional connection. She opined it would take "hundreds and sometimes 

# I I 8 i**~** 1 

# jNo. 32437-1-111 In re Welfare of

### B.P.

thousands ofcontacts for children to establish a secure attachment." RP at 77. The motherand B.P. went from no relationship, to a social relationship, to an emerging emotional relationship. This evidences the mother and B.P. were receiving services specifically tailored to address their relationship and improve it. H.O. relies on In re the Welfare ofG.S., 168 Wn.2d 51, 225 P.3d 953 (2010) and In re Termination ofS.J., 162 Wn. App. 873, 881,256 P.3d 470 (2011) to support her argumentthat not all necessary services were offered. Both cases are distinguishable. In G.S., the child had special needs which made him difficultto manage. C.S., 168 Wn.2d at 55-56. The foster parentwas given training to handle the child, but the mother
was not. Id. at 56. Thus, the Supreme Court held termination was not appropriate as the parent's ability to manage the child was the only parental deficiency left. Id. Here, H.O. has mental health issues impacting her ability to parent B.P. The Department provided H.O. with therapeutic services to address her parenting deficiencies and strengthen her relationship with B.P. Ms. Eastep opined B.P. would never be able to form a real attachmentto H.O. and thatforcing B.P. to do so would significantly injure B.P.'s mental health. Thus, services were offered to the motherwithoutthe desired
success. In In 

### re S.J., the Department was offering hands on parenting, and the provider testified she did not ever provide these type ofservices. Id. at 878. The courtfound the lack of bonding and attachmentwas an issue because it was the Department's removal ofthe child that diminished the bond the mother and child had. Id. at 883. The court

9No. 32437-1-111 In 

### re Welfare ofB.P.

found the Department delayed services to the mother negatively impacting her bond with her child. Id. at 883-84. Here, the Department was providing services and B.P.
was initially returned to H.O. The mother, however, relapsed and B.P. was removed. H.O. then disengaged in her services and stopped visiting for over a year. The disruption in the parent-child relationship was not caused by the Department, but rather by H.O.'s choices. 

# I Based on the above, the evidence supports the finding that services, specifically tailored to address the nature ofthe relationship between H.O. and B.P. were provided and were briefly successful, but attachment, a necessary element ofa parent-child relationship, could not be attained within the reasonable future. Attachment was the 

### I 

# I ! goal with the services offered by Ms. Eastep. The evidence shows that H.O. was receiving the necessary services but the deficiency could not be corrected in the reasonable future. Substantial evidence supports the court's finding that all necessary 

# I J services capable ofcorrecting the parental deficiencies had been expressly and 

# 1 I understandably offered or provided. H.O.'s challenge on this issue fails. Accordingly, 

# I the court did not err in finding that all services were offered to the mother as required 

# 1 under RCW 13.34.180(1)(d). 

# I B. Remediation of Deficiencies j 

## j 

# I , The issue is whetherthe trial court erred by finding little likelihood existed for the conditions to be remedied so that B.P. could be returned to H.O. in the nearfuture. H.O. contends substantial evidence does not support the trial court's finding. H.O.

10No. 32437-1-111 In 

### re Welfare ofB.P.

argues the trial court's finding was in error because all necessary services were not offered to correct her parental deficiencies and any additional deficiencies were already corrected. Before a court mayterminate a parent's rights, the Department must prove "that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the nearfuture." RCW 13.34.180(1)(e). Further, "A parent's failure to substantially improve parental deficiencies within twelve months following entry ofthe dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the nearfuture." Id. Lastly, "[t]he presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable ofcorrecting the parental deficiencies within the foreseeable future have been clearly offered or provided." RCW 13.34.180(1)(e). The focus ofthis factor is whether the identified deficiencies have been corrected. In 

### re Welfare ofM.R.H., 145 Wn. App. 10,27,188 P.3d 510 (2008). Ifthe parent is unable to resolve their deficiencies within 12 months afterthe child has been declared dependent, the statute's rebuttable presumption applies and it shifts the burden of production to the parent. In 

### re Welfare of T.B., 150 Wn. App. 599, 608,209 P.3d 497 (2009). The Department must still prove it is highly probable the parent would not improve in the nearfuture. Id. One factor the court may consider is, "Psychological incapacity or mental deficiency ofthe parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for

11No. 32437-1-111 In re Welfare ofB.P.

extended periods oftime orfor periods oftime that present a risk of imminent harm to the child, and documented unwillingness ofthe parent to receive and complete treatment ordocumentation that there is no treatment that can render the parent capable of providing proper care forthe child in the nearfuture." RCW 13.34.180(1)(e)(ii). "A parent's unwillingness to avail herselfof remedial services within a reasonable period is highly relevant to a trial court's determination as to whether the Department has satisfied RCW 13.34.180(1)(e)." 

### r.B., 150 Wn. App. at 608. Even if evidence shows the parent may eventually be capable ofcorrecting their deficiencies, termination is still appropriate where they will not be corrected within the foreseeable future. In re Welfare of A.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010). As discussed, necessary mental health, parenting, and substance abuse services were offered to H.O. to correct parental deficiencies in the overthree years since dependency. H.O. argues alternatively her parental deficiencies were corrected. But the record shows H.O. had a long history ofsubstance abuse. She began using drugs at age 13 and herfirst attempt at in-treatment was when she entered Isabella House in August 2011. She relapsed in May 2012 and was expelled from the program in June 2012. At trial, H.O. had been in out-patientfor2 months but was noncompliant 

## f 

# j for not attending outside support groups. H.O.'s chemical dependency counselor, Carla 1 

### i Paullin, testified that six months ofsobriety could be deemed partial remission and one 

# I 

# ! yearto be full remission. However, from herexperience of 15 years ofchemical

12

# I

! 1 No. 32437-1-111 

# I In re Welfare ofB.P. 

# I dependencytreatment, herwork with H.O., and her knowledge of H.O.'s use history. she opined H.O. would need 2 years ofsobriety to feel good about her sobriety. 

## 1 H.O.'s mental health was an unremedied parental deficiency. H.O.'s counselor, 1 Ms. Gormon-Brown, indicated H.O. has an extensive trauma history and struggled to feel herfeelings. Ms. Gorman-Brown testified H.O.'s trauma history was a barrier to**~** 

# 1 parenting. If a parent cannot feel their own feelings, then they cannot help a child cope 

# I with theirfeelings. Attrial, the motherwas making progress with addressing her own 

# ! feelings, but Ms. Gorman-Brown had concerns about B.P returning to H.O.'s care. She 

# I was concerned the mother could not be emotionally available to B.P. 

# I The overwhelming evidence shows all necessary services were offered and while 

# I H.O. made progress, she had not made enough progress that her parental deficiencies would likely be remedied in the foreseeable future. Substantial evidence shows H.O. 

# I needed several more months ofsobriety, individual therapy, and hundreds if not 

# j thousands ofcontacts with B.P. to remedy all of her parental deficiencies. When 

# 1 progress has not been made in 12 months following dependency, a rebuttable I 

# j**~** presumption exists that there is little likelihood conditions will be remedied so that the child can be returned to the parent in the near future. T.B., 150Wn. App. at 608. Because H.O. fails to produce evidence to rebut the presumption, substantial evidence 

## 1 supports the court's finding there is little likelihood that H.O.'s deficiencies could be 

# I 

# j remedied in the nearfuture. 

### \ I 

### 1 -1 ! 13 

# , I ; INo. 32437-1-111 In re Welfare ofB.P.

C. B.P.'s Prospects The issue is whether the trial court erred by finding continuation ofthe parent and child relationship diminished B.P.'s prospects for early integration into a stable and permanent home in the nearfuture. H.O. contends no evidence, let alone no substantial evidence supports this finding. Before terminating parental rights, a court must find "continuation ofthe parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home" before parental rights can be terminated. RCW 13.34.180(1)(f). "The plain language of RCW 13.34.180(1)(f) merely requires the trial court to find that the continued parent-child relationship diminishes the child's prospects of integration into a stable and permanent home." In the MatterofK.D.S., 176 Wn.2d 644, 658,294 P.3d 695 (2013). The focus is "on the parent-child relationship and whether it impedes the child's prospects for integration." Id. (quoting K.S.C., 137Wn.2d at 927). One way to satisfy RCW 13.34.180(1)(f) is evidence ofthe parent-child relationship causing harm to the child. K.S.C., 137 Wn.2d at 932. "While a detrimental personal relationship would not be irrelevant, this factor is mainly concerned with the continued effect ofthe legal relationship between parent and child." In re P.P. T., 155 Wn. App. 257, 268, 229 P.3d 818 (2010). Substantial evidence in the record shows B.P. needs permanence and is at risk offorming an attachment disorder. Ms. Eastep testified B.P. was a child in need of 

# I

, I 14 I

# INo. 32437-1-111 In re Welfare ofB.P.

permanence. Going between H.O. and herfoster home was confusing, and after being in the system her entire life, B.P. needed to knowwhat herworld was going to look like. H.O. argues the need for permanency was not established because H.O. and B.P. were visiting and trying to build a relationship, but the evidence in our record shows B.P. would not be able to attach to her mother based on the H.O.'s parental deficiencies. Another disruption in placement could cause long term emotional harm to B.P. The testimony shows B.P. needed permanency that should could not receive with H.O. Accordingly, continuation ofthe parent and child relationship clearly diminished B.P.'s prospects for early integration into a stable and permanent home. D. Best Interests The issue is whetherthe trial court erred by finding that it was in B.P.'s best interests to terminate her mother's parental rights. H.O. contends the record lacks substantial evidence to support this finding. In addition to the first step offinding the six elements of RCW 13.34.180(1) by clear, cogent and convincing evidence, the trial court mustfind by a preponderance of the evidence that termination is in the child's best interest. RCW 13.34.190(2}. "Only if the first step is satisfied may the court reach the second." A.B., 168 Wn.2d at 911. We afford a trial court broad discretion in making the "best interests" determination, and its decision receives great deference on review. In re Welfare ofYoung, 24 Wn. App. 392, 395,600 P.2d 1312 (1979). Whether termination is in a child's best interests is based on the particularfacts and circumstances ofeach case. In re Dependencyof 

### A. V.D., 62

15No. 32437-1-111 In 

### re Welfare ofB.P.

Wn. App. 562, 572, 815 P.2d 277 (1991). When a parent has failed to rehabilitate over a lengthy dependency period, a court is fullyjustified in finding termination to be in a child's best interests rather than leaving the child '''in the limbo offoster care for an indefinite period'" while the parent seeks further rehabilitation. In 

### re Dependencyof TR., 108 Wn. App. 149, 167,29 P.3d 1275 (2001) (quoting In re Dependency ofA. W, 53 Wn. App. 22, 33, 765 P.2d 307 (1988». Here, the evidence is overwhelming that termination is in B.P.'s best interest. Ms. Eastep testified B.P. needed permanence and opined B.P. needed no significant change in her life. Ms. Schweigert, B.P.'s guardian ad litem, had concerns about the mother's ability to place B.P.'s needs ahead of her own. She did not feel thatthe motherwould be able to parent B.P. She testified termination was in B.P.'s best interest. Other than H.O., no witness indicated termination was not in B.P.'s best interest. The court's finding was supported by substantial evidence. 

### E. Unfitness The issue is whetherthe court erred in finding H.O. currently unfit to parent B.P. H.O. contends the evidence shows she was capable of parenting another child; therefore, she is capable of parenting B.P. The Department is held to the higher burden of proving current unfitness in a termination proceeding by clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). To meet its burden to prove current unfitness in atermination proceeding, the Department is required to prove thatthe parent's parenting deficiencies

16No. 32437-1-111 In re Welfare ofB.P. prevent the parent from providing the child with "basic nurture, health, or safety" by clear, cogent, and convincing evidence. RCW 13.34.020. Current parental unfitness is implicitly established when the Department proves all six ofthe statutory elements. In re DependencyofK.N.J., 171 Wn.2d 568,576-77, 257 P.3d 522 (2011). A court can explicitly make a finding of current parental unfitness. A.B., 168 Wn.2d at 920-21. Here, the trial court made an explicit finding that the mother was currently unfitto parent B.P. To meet its burden to prove current unfitness in a termination proceeding, the Department must prove the parent's parenting deficiencies preventthe parent from providing the child with "basic nurture, health, or safety" by clear, cogent, and convincing evidence. In re Welfare ofA.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014). H.O. initially reunified with B.P., but when B.P. was 11-months-old, H.O. relapsed and the child was removed. The mother did not visit her child on any consistent basis for the next year. By the time the mother resumed contact with B.P. she had developed the beginnings of an attachment disorder. The mother struggled to feel her own feelings and had maladaptive coping strategies. In orderfor B. P.'s needs to be met, including addressing her attachment issues, her parent would need to be able to cope with their own feelings in orderto help B.P. address her feelings in a healthyway. H.O. did not demonstrate an ability to do this. Further, H.O. had just begun her sobriety. She had not demonstrated an ability to remain sober outside ofa structured setting. She did

17No. 32437-1-111 In re Welfare ofB.P.

not acknowledge the emotional damage B. P. suffered with the removal from her care. She did notdemonstrate the ability to place B.P.'s needs ahead ofher own. H.O. points to her ability to parent her youngest child, AO. to support her argument she is a fit parent. H.O.'s alleged parenting abilities regarding AO. are unpersuasive in light ofthis evidence. Moreover, the circumstances between the two children vary markedly; one child being constantly with H.O. in a structured environment, while the other was displaced from H.O. for a significant amount oftime, creating attachment differences. A deficiency that experts testified could not be remedied in the nearfuture. Thus, the court's finding thatthe motherwas unfit to parent B.P. was supported by substantial evidence. CONCLUSION Because substantial evidence supports the court's findings regarding RCW 13.34.180{1 )(d)-(f), the best interests ofthe child, and the mother's unfitness, the court did not err in terminating H.O.'s parental rights. Affirmed. Brown, J. I CONCUR:

18No. 32437-I-III FEARING,J. (Dissenting) In parental termination cases, the State ofWashington inevitably advances the proposition that the best interest ofthe child is the court's primary concern. The State also routinely repeats a corollary mantra that, whenthe interest ofthe parent and the child conflict, the child's interests prevail. Unfortunately, the State's dogma ignores the principle that theparamount goal ofchild welfare legislation is to reunite the child with his orher legal parents, ifreasonably possible. In



### re Dependency of K.NJ, 171 Wn.2d 568, 577, 257 P.3d 522 (2011). Sometimes reuniting the parent and child is reasonably possible despite reunification harmingthe child's best interests. The State's creed also ignores the constitutional principle that a child holds a right to the companionship and supportofaparent. An adult has a corresponding constitutional right to the care, custody, and control ofherchild unless provedunfit as aparent. Many ofour state's citizens deem these birthrights to be foreordained by God. The State ofWashington must notbecome an authoritarian nation or aplatonic 

# I utopia wherein the governmentmay remove a child from a birthparent and deliver the child to otherparents to permanently raise because the birthparent is notthe choicest of 

## 1 

# I J parents and the child is better served by otherparents. The State's action in this unique 

# I 

# i 1No. 32437-I-II1 In re Welfare of B.P. (Dissent)

case involves such a removaL This case's circumstances are rare. The State impliedly concedes and the trial court found that H.O. is fit to parenther one-year olddaughter. Nevertheless, the State argued andthe trial court agreed that H.O.'s rights to atwo-year-old child should be terminated because ofa lack ofbonding. H.O. shouldnot lose herparental rights since

an absence ofbonding is not a statutory ground for termination, termination on this basis violates H.O.'s constitutional rights, and endingparental claims for want ofbonding lacks a firm foundation in science andpsychology. Therefore, Irespectfully dissent from the termination ofH.O.'sparental rights. My dissent also springs from frustration resulting from vacuous standards found in parental termination law, despite the grave consequences oftermination proceedings. Parental termination can be likened to the deathpenalty. The parentis no more. FACTS The following recitation offacts provides a chronological outline ofimportant events in the life ofB.P. The recitation then reviews testimony ofthe termination trial's eleven witnesses. Chronology July 8, 2011 H.O. gave birthto B.P. The hospital placed a hold on B.P. at birth due toher withdrawal from methamphetamine whichH.O. used while pregnant. 2No. 32437-I-III In re Welfare of B.P. (Dissent)



### July 13,2011 The State ofWashington Department ofSocial and Health Services (DSHS) removed B.P. from H.O.'s care and filed a dependency petition. 

### August 10,2011 H.O. entered IsabellaHouse's inpatient treatment chemical dependencyprogram. 

### August 26, 2011 The trial court entered an order ofdependency for B.P. 

### September27, 2011 B.P. returned to H.O.'s care, andthe two resided at IsabellaHouse. 

### February 12,2012 H.O. graduated from IsabellaHouse inpatient program. H.O. moved with B.P. to Isabella House'stransitionhome. 

### May 2012 H.O. began methamphetamine use again. 

### June 2012 Isabella House's transition home expelled H.O. 

### June27,2012 The trial court entered an orderremoving B.P. from H.O. 

### July 3, 2012 3No. 32437-I-III In re Welfare of B.P. (Dissent)

H.O. voluntarily returned B.P. to DSHS. B.P. first went to foster care with a stranger. B.P. irregularly visited H.O. October31,2012 DSHS suspended visitation between B.P. and H.O. November2012 DSHS placed B.P. in foster care with relatives. May 7, 2013 H.O. used methamphetamine for the last time. May 9, 2013 A pregnant H.O. returned for the second time to Isabella House. H.O. has been sober since. June 18, 2013 H.O. gave birth to B.P.'s sister, A. A. has always lived in the care and custody of H.O., including when H.O. resided at Isabella House. August 14,2013 Visits between H.O. and B.P. resumed. Social worker Lori Eastep supervised the visits. November 8, 2013 Carol Thomas, a child therapist, performed a parent-child evaluation ofH.O. and B.P. at the request ofDSHS. Thomas recommended increased contactbetween H.O. and 4No. 32437-1-III In re Welfare ofB.P. (Dissent)

B.P. 

### December3,2013 H.O. graduated again from Isabella House. 

### December4, 2013 H.O., with A., moved to Hearth House. H.O. andA. continuedto visitwith B.P. until trial. 

### January 1,2014 H.O. and A. moved to St. Margaret'shome. 

### February 10,2014 Parental termination trial began.Witnesses Carla Paullin Trial witness CarlaPaullin holds a master's degree in psychology. She is a licensed mental health and chemical dependency counselor. She has a contractwith DSHS, and, at H.O.'s social worker's request, sheprovided individual mental health counseling toH.O. at IsabellaHouse beginning on October 3, 2011. H.O. regularly attendedcounseling with Paullin. According to Paullin, H.O. washighly motivated in treatment. Paullin assisted H.O. with emotionalproblems arising from H.O.'s relationship withhermother. H.O.'s motherencounteredmental health problems and drug use that interfered inhercare for H.O. According to Paullin, H.O. wishes to parent 5No. 32437-1-III In re Welfare of B.P. (Dissent)

betterthan her mother did. Paullin last saw H.O. on July 3, 2012. 

# I Marcey Monahan Witness MarceyMonohan obtained a bachelor's ofscience degree in psychology 

# I I and a master's ofsocial work. She works for DSHS' Division ofChildren and Family 

### I 

# I Services. OnFebruary 16,2012, DSHS assigned her to monitor B.P.'scase. B.P. then 

## • 

# I livedwith her mother at Isabella House'stransition home. Upon A.'sbirth, DSHS assigned Monohan as the social worker for A.'s case. Marcey Monohan worries about H.O. parentingB.P. because ofH.O.'spast substance abuse and missing contact for months with B.P. According to Monohan, H.O. 

# j needs 18 months ofsobriety and needs to understand the harm she caused B.P. before the 

# I mother and daughter are reunited. Anattachmentbetween H.O. and B.P. will not occur J 

# j until forced. Monahan conceded that, in August 2013, DSHS opposed the contactwhich t 

# , the trial courtordered. 

# I According to Marcey Monohan, H.O.'sparenting ofA. is different. A. is 

# I acclimated to her mother. A. is cute, happy and, expressive. A. smiles, giggles, and

coos. She is on target developmentally. i 

# I Marcey Monohanhas observedH.O. and A. on a monthly basis. H.O. meets A.'s 

# I needs. Monohanhas no concerns with H.O. parenting A. as long as H.O. remains sober. 

### J Monohan also observed H.O. with B.P. B.P. looks "good"with H.O. Monohan observed 

### I I 

# 1 H.O. redirecting B.P. when she displayed aggression. DSHS reduced family therapy with ! 

### 6No. 32437-I-III In re Welfare of B.P. (Dissent) therapist Lori Eastep to once a week because ofprogress in H.O.'sparenting ofB.P. PaigeBeerbohm Witness PaigeBeerbohm worked as the primary counselor for H.O. at New Horizon Care Center at Isabella House, when H.O. returned to the home on May 9, 2013 and through December 2013. She is a licensed chemical dependency professional. According to Beerbohm, H.O. progressed very well in substance abuse recovery. H.O.

was positive and inquisitive about treatment andrelapse prevention. H.O. also participated in mental health counseling at IsabellaHouse in 2013. DuringH.O.'s stay at IsabellaHouse in 2013, H.O. had no positive urinalysis. H.O.'s relapse prevention program includes written assignments, collages, identifYing triggers andrelapse warning signs, recognizing healthy coping skills, and identifYing her support network. Her father and grandmother are in her supportnetwork. Beerbohm, the expert on chemical dependency, had no opinion as to how long H.O. mustbe in a structured settingto retain sobriety. When H.O. was at IsabellaHouse, Paige Beerbohmrecommendedto DSHS that H.O. have visits with B.P. DSHS ignored Beerbohm's recommendation. Sandra Gorman-Brown Sandra Gorman-Brown is a licensed clinical social worker, who performs family and individual therapy with Grass Roots Therapy Group. She holds a master's degree in social work. On July 26, 2013, Marcey Monohan, H.O.'s social worker, referred H.O. to 

### 7

# 1



# I No. 32437-1-II1 In re Welfare of B.P. (Dissent) 

# I**.~** 

# I J Gorman-Brown for individual therapy. H.O. then had unresolved issues related to trauma

as a child. H.O. eagerly soughtthe therapy. According to Gorman-Brown, H.O. 

# I progressed with regard to development ofher traumanarrative, although H.O. needed 

# I further resolution ofthe trauma. H.O. needs atleast another six months in individual therapy. 

# I j Sandra Gorman-Brown did notknow ifH.O. 's unresolved mental health issues 

# 1 posed a riskto parenting. Accordingto her, many fit parents neverresolve issues created 

## f by childhood trauma. SandraGorman-Brown testified thatH.O. holds empathy for others and shows empathy for B.P. H.O. worked hard and was highly motivated during mental health therapy with Sandra Gorman-Brown. Gorman-Brown concluded that, as a result ofthe individual therapy, H.O.'s mental health is reasonably stable. She opined thatno mental health issue would prevent B.P. from returning to H.O. Atthe sametime, Gorman-Brown expressed concern aboutreunification, because she questioned ifH.O. canbe emotionally available to B.P. Gorman-Brown was not asked ifH.O. was emotionally available to A. Gorman-Brown is available to help form attachmentbetween H.O. and B.P. LoriEastep Lori Eastep operates Grass Roots Therapy Group which contracts with DSHS to provide services for family preservation. These services include parental assessments 

# i and individual and family therapy. Eastep holds abachelor's ofsociology and master's i

# I 8

I j lNo. 32437-1-III In re Welfare 

### oIB.P. (Dissent)

ofsocial work degrees. She is a faculty member at Eastern Washington University and is licensed by the Department ofHealth as a licensed independentclinical social worker. Lori Eastep oversaw therapeutic visits among A., B.P. and H.D. beginning on August 14,2013 at Isabella House. B.P. was then two years old. H.D. had not seenB.P. for eleven months. In advance ofthe first visit, H.D. worried about diapers and snacks. Duringthe first visit, B.P. did not recognize hermother, butEastep did not expect B.P. to realize H.D. was her mother. B.P. was not traumatized by seeing her mother on August 14. She tolerated the first visitwell. Atthe conclusion ofthe one hour visit, B.P. ran to the social workerbecause she was eagerto leave. Eastep supervised another visit on August 23. Afterthe initial visits, Lori Eastep recommended no further visitation between H.D. and B.P. ifthe termination trialproceeded in September2013. Visits resumed in Dctober 2013 because ofa trial delay. Eastep oversawtwenty-two visits. The sessions lasted two hours. They continued until the trial in February 2014. B.P. did not identify H.D. as herprimary attachment figure. H.D. understood the challengesresulting from missing contact for months. Nevertheless, accordingto Eastep, H.D. loves B.P. and viewed B.P. as her child. According to Lori Eastep, an infant forms an attachment at age eleven months. If

a child attaches to anotherperson, a change in attachment to theparentdoes not come without forcing the change. Eastep does not know how long ittakes to form an 

### 9No. 32437-1-III In re Welfare of B.P. (Dissent) attachment, once an attachment is disrupted. The risks ofmultiple attachment disruptions include difficultrelationships withpeers, difficulty at school, difficulty in intimate relationships, high risk adolescent behaviors. Some children reactbetterto attachment disruptions. Eastep does not know ifB.P. is a "resilient" child. Neartrial, B.P. saw her current foster parents interactwith H.O. This observation lessened B.P.'s anxiety and confusion around H.O. Lori Eastep explained attachment disruptions to H.O. H.O. told Eastep that B.P. is her daughter and she has completed the steps needed for reunification. During the months that Lori Eastep supervised visits, the relationship between B.P. and H.O. had "moments ofimprovement." Report ofProceedings (RP) at 70. H.O.

cameto visits prepared withtoys, activities, and snacks for H.O. She asked Eastep good questions in order to be prepared for visits. H.O. asked Eastep helpful questions concerning B.P.'s behavior. During the supervised visits, Lori Eastep assessed B.P.'srelationship with her sister, A. The relationship between A. and B.P also improved. With A. present at the supervised visits, B.P. went to Eastep for assistance because H.O. was busy aiding A. B.P.'s seeking ofEastep for support decreased with time. H.O. did not force hugs or physical contact that B.P. did not wish. According to Lori Eastep, H.O.'s relationship with A. is different than the relationship with B.P. H.O. is A.'sprimary attachment. H.O. has parented A. sinceA.'s 10No. 32437-1-111 In re Welfare of B.P. (Dissent)

birth. H.O. was with A. through all ofher developmental milestones. H.O. knows A.'s

cues and needs. A. is a very healthy, happy, little girl. Lori Eastep observed thatH.O. worked hard to maintain sobriety. H.O. suffered a difficult childhood and is not always attuned to her own needs. Eastep also observed that, with counseling, H.O. improved at expressing her needs. Attrial, Eastep could not identify any deficiency that H.O. encountered in parenting. Eastep holds no safety

concerns with H.O. caring for B.P. Eastep agreed that returning B.P. to H.O. could be a "verypositive thing" for B.P. RP at 98. Lori Eastep was reluctantto state that her supervised visits resulted in an "attachment"between B.P. and H.O. Nevertheless, the mother and daughter manifested

an emerging emotional connection. Ifa child already has a secure attachmentwith one person, the childwill not attach to another. ForB.P. to attach to H.O., B.P. would need to sever her relationship with her current caregiver. The State's counsel asked Lori Eastep at trial: Q. In your opinion with your workwith [H.O.] and [B.P.], do you see [B.P.] being able to return to her mother's care in the near future? A. Well, I don'tthink that that's a yes/no question. I think that [B.P.] needs permanence, and I think that what the Court's going to decide is that's eitherwith the relatives orthat's with [H.O.]. And I think either way there's going to be consequences to that decision. RP at 84. Eastep also testified: Q. So at this time do youhave an opinion about whether termination is in [B.P.'s] best interest? A. I thinkpermanency is in [B.P.] best interest. This may notbe the 11No. 32437-I-III In re Welfare of B.P. (Dissent)

best answer, but Ihad suggested a guardianship. That's what Ithoughtwas in [B.P.'s] best interest was for [H.O.] toretain her parental rights andbe involved with her child, butthat [B.P.] remain with hercurrentplacement because she is attached to them and is doing very well there. RP at 85. Carol Thomas Carol Thomas is a child therapist and evaluator. She holds abachelor's degree in sociology and a master's degree in childhood family studies and child development. She provides therapy to children who experienced trauma. She performs parenting assessments. Thomas is a licensed mental health counselor. At the request ofDSHS, Carol Thomas performed aparent-child assessment of H.O. and B.P. on November 8, 2013. B.P. was then two years and four months old. At the beginning ofthe assessment, Thomas saw B.P. and H.O. in the waiting room. B.P. sat on the social worker's lap and clungto herrather than H.O. When the mother and daughter went upstairs, H.O. asked B.P. to come toher. B.P. complied and saton H.O.'s lap and quickly warmed to H.O. During the three hour evaluation, B.P. made eye contact with hermom. B.P. approached and engagedher mom. She initiated physical contact and play withher mom. B.P. told hermother she wanted hertohold and carry her. She jumped on hermom to play. H.O. expressed affection to B.P., and B.P. accepted the affection. B.P. smiled and laughed throughout the assessmentwith her mom. Duringthethree hour assessment, B.P. went to H.O. or Carol Thomas when hurt

or uncomfortable. B.P. received her mother's comfort and care, but did not use H.O. as 12No. 32437-1-III In re Welfare of B.P. (Dissent)

her sole source ofsecurity. B.P. responded to her mother as aparental authority and complied with H.O.'s directions. A. attended the parental assessment with Carol Thomas. Atfirst, B.P. kicked A. and grabbed A.'stoys. H.O. told B.P. that she shouldnothit or grab A.'stoys. H.O. redirected B.P, and B.P. complied and cooperated. Later, B.P. became interested in A. Duringthe evaluation, B.P. declared to Thomas: "[T]hat's [A.]." RP at 116. B.P. watched A. and broughthertoys. She competedwith A. for her mother's attention. According to Carol Thomas, H.O. managed both children well. Duringthe evaluation, H.O. met both children'sphysical and emotional needs in aprompt, consistent, and appropriate manner. H.O. encouraged a relationship between the sisters. Carol Thomas observed no "attachment" between B.P. and hermother, H.O. Thomas described the relationship as a "developing

... social relationship." RP at 113. Thomas agreed the mother and daughter may sustain an emerging emotional relationship. Thomas knows that B.P. had four placements and three disruptions. B.P. started to attach to aperson and then lost the person. Accordingto Thomas, the more disruptions the

more likely the child will not be able to attach. Twelve months is needed to form and consolidate an attachment. Thomas agreed she could assistH.O. and B.P. "reintegrate." As aresult ofher assessment, Carol Thomas recommended that DSHS increase contact betweenB.P. and H.O. with continuing services.

13

# 1 j No. 32437-I-II1 

# I In re Welfare of B.P. (Dissent) 

# , I**~** Amanda Clemons 1 Amanda Clemons is a licensed mental health therapist with a master's degree in 

# 1 social work. She specializes in family therapy and attachment services. H.O.'s social 

# I I worker asked Clemons, in October 2013, to observe B.P. with her aunt and uncle, the 

# i current foster parents. Clemons observed that B.P. has a secure attachmentwiththe 

# ] foster parents. Accordingto Clemons, B.P. needs stability. She worries aboutB.P. 

# I developing an "attachment disorder." Accordingto Clemons, B.P. should not experience 

# I another disruption in care. Clemons met H.O. once, butB.P. was not present during the 

# I 

# ! 1 meeting. 

# I Kolleen Seward Kolleen Seward holds a Bachelor ofScience in psychology and minor in alcohol and drug studies. She works for Partners with Families and Children as the supervisor for

a chemical dependency program. Partners provides intensive outpatientchemical dependency programs. H.O. began an intensive outpatientprogram with Partners for Families and· Children in December 2013. A participant in the program meets three days a week in a group, engages in one to two individual sessions a month, and attends two outside support groups eachweek. Kolleen Seward testifiedthat H.O. failed toverify participation in outside groups, although she has attended all meetings atPartners. H.O. has done well with individual and group visits at Partners. 14No. 32437-1-III In re Welfare of B.P. (Dissent)

Kolleen Seward has "no concerns" about H.O.'srecovery. RP at 174. Nevertheless, Sewardrecognizes H.O. as a risk for relapse ifshe does not build support groups. Karen Schweigert Karen Schweigert is a licensed attorney. In July 2011, thetrial court appointed Schweigert as B.P.'s guardian ad litem. The court also later appointed Schweigert as the guardian ad litem for sisterA. Karen Schweigertobservedthe interactionbetweenB.P. and H.O. when the two lived together in late 2011 and early 2012 at Isabella House, before H.O.'srelapse. The relationship wasthen "remarkable." H.O. focused attention onB.P. H.O. nursedB.P., "whichtook an unbelievable amount ofdedication and patience." RP at 223. B.P. treated H.O. as the center ofher universe. B.P. giggled. Karen Schweigertbelieves termination ofH.O.'sparentalrights is in the best interest ofB.P. Schweigerthas not seenH.O. and B.P. together since visitation resumed in August 20l3. AmberEggert AmberEggertis the case manager for H.O. at St. Margaret's, the structured living facility where H.O. and A. lived atthe time oftrial. Thetwo movedto St. Margaret's on January 1, 2014. Eggertmonitored H.O.'s compliance in theprogram and contacted other serviceproviders. Pursuantto houserules, H.O. obeyed an 8:30 curfew, performed 15 

# I

### No. 32437-1-111 In re Welfare of B.P. (Dissent)

house chores, and supervised A. at all times. H.O. successfully underwent random urinalyses. H.O. has compliedwith St. Margaret'sprogram and rules. NO According to H.O., she received different and bettertreatment at IsabellaHouse the secondtime. She now knows the hurt and confusion she caused B.P. and believes she is the best one to solve it. She recognizes the difficultly ofcaring for B.P., but insists that she is capable. Accordingto H.O., the bestplace for B.P. is with hermom and sister. Atthe time oftrial, H.O. underwent outpatient treatment at Partners with Families and Children three times a week for two hours eachtime. She also underwent individual therapy with Sandra Gormon-Brown. She submitted to urinalyses four or five days a month. She attended life skills classes and a family unificationprogram. She participated in self-help meetings at St. Margaret's. H.O. insisted, at trial, that she complied with therequirement to attend meetings with outside groups. St. Margaret's initially believed otherwise. Accordingto H.O., she went twice perweek to aCelebrate Recovery church service but only turned in one slip. This misstep explained St. Margaret's questioning ofcompliance. H.O. testifiedthat she has many supportpersons, includingher father, aunt, a cousin, and church members. H.O. testified at trial that she breast feed A. B.P. would then getjealous ofher paying attention to A. H.O. testified that B.P. loves her sister, A. She wants to help with A. She is protective ofA.'sthings. 16 f 

### f 

## i 

# I !No. 32437-1-III In re Welfare of B.P. (Dissent)

H.O. testifiedthat, ifshe had been given more visitation with B.P., the two would have bonded further. B.P. now runs to H.O. when she is hurt. B.P. wants H.O. to arrange herhair. She sits onH.O.'s lap, andthe two readtogether. According to H.O., B.P. and she enjoy an emotional relationship. B.P. now hugs and kisses H.O. B.P. expects protection and companionship from H.O. now that B.P. trusts H.O. B.P. calls H.O. "mama [Hr' and her foster mother "mama [S]." RP at 375. Understandably, H.O. desires B.P. to be with her sister, A. H.O. is grateful for B.P.'srelatives who served as foster parents and wishes B.P. to continue a relationship with them. Trial CourtFindings When terminating theparental rights ofH.O. to B.P., the trial court entered the following findings offact, among others: 10. All court ordered services have been expressly and understandably offered orprovided and all necessary services, reasonably available, capable ofcorrectingparental deficiencies within the foreseeable future havebeen offered or provided including: chemical dependency inpatienttreatment, outpatient treatment, UAIBA monitoring, individual counseling, parenting assessment, parenting services including family preservation services and therapeuticvisits with Ms. Eastep inpartto address the mother child relationship. The services offered werethose neededto remedy [H.O.'s] parental deficiencies. TheDepartment established RCW 13.34.180(1)(d) by clear cogent and convincing evidence. CP at 166. 13.

. .. Substance abuse will be an issue thatthe motherhas to address for the rest ofher life. 17No. 32437-I-III In re Welfare of B.P. (Dissent)

CP at 167. 22. [H.O.] also had issues with her parental relationship with [B.P.]. [B.P.] was in foster care for the first two months ofher life. Shethen was placed with her mother until she was II months old. Around 11 months is the age when aprimary attachment is forming and solidifying. Itwas at this crucial developmental stage when [H.O.] relapsed and [B.P.] was removed from hermother's care. [H.O.] then continued to use and was inconsistent in her visitation with [B.P.]. On October 31, 2012, the dependency court, on its own motion, suspended the mother's contact pending further court order due to her lack ofconsistency in visiting and the harm it was doing to the child. Duringthis time, [B.P.] was in her third placement in foster care. In November 2012, [B.P.] was moved into her fourth placement, with paternal relatives. CP at 169. 28. In November 2013, [H.O.] met with Carol Thomas and both of her children for the purpose ofaparenting assessment. Ms. Thomas indicated that with attachment, the window to form a healthy attachment closes afterthe first year. Having ahealthy attachment is critically important to an individual's mental health. At the time ofthe assessment, Ms. Thomas observed no evidence ofattachment or attachment formation between [B.P.] and [H.O.]. At the time there was only a developing social relationship, which Ms. Thomas expected given there had onlybeen 7 recent visits between the mother and [B.P.], some ofwhich were also attended by the infant A. 30. There is little likelihood that conditions will beremedied so that the child can be returned to the parent(s) in the near future. [H.O.] will have to deal with substance abuse issues for her entire life. She also still needed to address hermental health issues. The motherhadbeen involved in services for nearly 3years, and her relationship with [B.P.] was such that there was little likelihood [B.P.] could be returned to her mother in the near future. CP at 170. 33. The courtwas concerned about what attachment services were offered to [H.O.]. However, the evidence was overwhelming that [B.P.] 18

### No. 32437-1-111 

### In re Welfare of B.P. (Dissent)

was a child who was in her fourth placement. Her ability to attach was already compromised. The evidence was clear thatto form an attachment you first hadto have contact, then building a social relationship, then an emotional relationship, then an attachment. [B.P.] was only at a social relationship with [H.O.] at the time oftrial, the emotional relationship was justemerging. The court finds thatthe services necessary to buildthetype ofrelationship necessary to meet [B.P.'s] needs wouldtake one year or more and that is too long. CP at 

### 171. 35

.... [B.P.] is a child in need ofstability. Atthe time oftrial, [B.P.] was at risk ofan attachment disorder. These types ofdisorders cause learning issues, and social and emotional issues for children. 36. [B.P.'s] foreseeable future is now. [H.O.] is still at the beginning ofherprogress. Her sobriety is recent and she has not had any success living independently. Her parenting ofher infant, A., looks positive, butthat is likely because A. has neverbeen out of[H.O.'s] care. The disruption in placement caused by [H.O.] by her relapse in 

### 2012 cannot be ignored. The relationship between [H.O.] and [B.P.] is notcomparable to her relationship with A. There is little likelihoodthat [B.P.] couldbe returned to her mother in the foreseeable future. TheDepartment has established RCW 

### 13.34.180(1)(e) by clear cogent and convincing evidence. 

### 37. Continuation ofthe parent-childrelationship clearly diminishes the child'sprospects for early integration into a permanent and stable home. Continuation of[H.O.'s] relationship with [B.P.] impedes herability to be placedin a stable andpermanenthome. Withouttermination, the child remains in the limbo offoster care indefinitely. 38. [B.P.] is entitledto a family andpermanency now. Continuing to visit with [H.O.] will prolong her anxiety and diminishtheirprospects for early integration into a stable and permanenthome. [B.P.] is atrisk of developing an attachment disorder. In orderto maintain [B.P.'s] mental health, she needspermanency now. The Departmenthas established RCW 

### 13.34.180(1)(f)by clear cogent and convincing evidence. 39. [H.O.] clearly loves [B.P.] and wants to parenther. However, [B.P.] can no longer wait for [H.O.] to remedy herparental deficiencies. 

### 40. It is in [B.P.'s] best interests toterminate the parent-child relationship. The Department established RCW 

### 13.34.190 by a preponderance ofthe evidence. 

### 41. The motheris currently unfit to parent [B.P.]. This element 

### 19No. 32437-1-III 

### In re Welfare 

## 0/ B.P. (Dissent) requires the courtto determine if[H.O.] is able to meet [B.P.'s] needs. The evidence clearly indicates that she cannot. . .. She does not understand [B.P.'s] needs for permanency orthe risk she faces ifshe develops an attachment disorder. [H.O.] cannot claim that because A. is in her care, that she must be fit to parent. [B.P.'s] needs are different andher attachment issues are theresult ofher mother's actions.

. .. Thus, the Departmenthas established that [H.O.] is currently unfit to parent. CP at 172-73. LAWAND ANALYSIS I would reverse the termination ofH.O.'sparental rights to B.P. on at least three, if not four, grounds. First, the State failed to prove that it provided all reasonable and necessary services to correct H.O.'sparental deficiencies. Second, the State failed to show thatB.P. andH.O. cannotreunite within the near future. Third, the State likely failed to establishthattermination ofparental rights was in B.P.'sbest interests. Fourth, the State fell short in proving B.P. is an unfit mother and thereby denied her constitutional rights by terminating herparentalrights. I will address these grounds in such order. 

### Necessary Services Termination ofparental rights is atwo-step process. 

### In re Welfare o/CB., 134 Wn. App. 942, 952, 143 P.3d 846 (2006). First, the State must show that six statutory requirements under RCW 13.34.180(1) are establishedby clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). This means the State must show that the relevant ultimate facts in issue are "highlyprobable." 

### In re Dependency

## 0/ K.R., 128 Wn.2d 129, 20No. 32437-1-II1 

### In re Welfare of B.P. (Dissent) 141,904P.2d 1132 (1995) (quoting

### In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831 (1973)). Second, the State must show a termination order serves the best interests of the child. RCW 13J4.190(1 )(b). Thetrial court must find by apreponderance ofthe evidence that termination is in the best interests ofthe child. 

### In re Welfare of MR.H., 145 Wn. App. 10, 24, 188 PJd 510 (2008). One ofthe six statutory requirements is the State's provision ofservices needed to correct deficientparenting skills. When the State seeks to terminate aparent's rights, it must show, in part, by clear, cogent, and convincing evidence: (d) Thatthe services ordered under RCW 13.34.136 have been expressly and understandably offered orprovided 

### andall necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future have been expressly and understandably offered orprovided. RCW 13.34.180(1 ) (emphasis added). To meetthis statutory burden, the State must tailorthe services it offers to meet each individual parent's needs. 

### In re Dependencyof T.R., 108 Wn. App. 149, 161,29PJd 1275 (2001). The State mustprovide all courtordered and necessary services to the parent. 

### In re Dependency of D.A., 124 Wn. App. 644,651,102PJd 847 (2004). This dissent will repeatedly emphasizethe undisputed facts and implied, ifnot express, finding ofthe trial court that H.O. is afit parentfor A. This apparent inconsistency begs the question: what is the difference between H.O.'sparenting ofB.P. and H.O.'sparenting ofA.? The trial court answered the question with its finding that A.



# , 21No. 32437-1-111 In re Welfare of B.P. (Dissent)

has aparental attachment to H.O. missing in the relationship between H.O. and B.P. B.P.

was not in her mother's care at ten or eleven months ofage and thus a strong bond never attached. The State argues B.P. is attached to her foster parents and needs to retain this attachment, although remarkablythe foster parents did not care for B.P. until age sixteen months, an age afterwhichthe State claims is critical for attachment. The trial court's answerto our question should not end the inquiry. No law demands that aparent lose rights to a child because ofa lack ofbonding, let alone a lack ofintensebonding. Science mayrecognize the importance ofbondingwith aparent belowthe age ofone, but science does not support a finding that bonding cannot occur at

a later age. The state and federal constitutions do notpermit the rending ofa child from a parent because ofa lack ofbonding when theparent is notproved unfit. Counselor Sandra Gorman-Browntestified that she is availableto help form attachments between H.O. and B.P. State expert Carol Thomas also testified that she couldprovide services tohelp H.O. and B.P. form a bond andparent-child attachment. Thomas agreed she could assist H.O. and B.P. reintegrate. As a result ofher assessment, Thomas recommendedto DSHS increased contact between B.P. and H.O. with continuing services. Instead, the State soughttermination ofparental rights. DSHS provided H.O. numerous services. Nevertheless, contrarytothe assertion ofthe majority, the record is absent ofany mention ofDSHSproviding attachment therapyfor H.O. and B.P. The record is also absent ofany facts or finding that 22No. 32437-1-III 

### In re Welfare of B.P. (Dissent)

attachment therapy would be worthless. The majority concludes thatthe mother and B.P. received services specifically tailored to their relationship. The majority does not identifY the tailored services. The undisputed facts are that bondingtherapy could have been given but was not. The majority writes that DSHS provided attachment services designed to help B.P. attach to any parent figure. The record is otherwise. Assuming such services wereprovided, they were not tailored to B.P. and H.O. A controlling decision is 

### In re Welfare ofSJ., 162 Wn. App. 873, 256 P.3d 470 (2011). Because ofits parallel facts, including witnesses and institutions, I discuss 

### SJ. at length. Ifanything, DSHS established less causetoterminate H.O.'sparental rights than it established with regard to the mother in 

### SJ. SJ.'smother lacked the same bonding with the child that DSHS and the trial court considercrucial in H.O.'srelationship with B.P. Thus, SJ. dictates areversal in this appeal. Rarely is a reported decision so similar, but yet we drawthe opposite conclusion in this appeal. In fairness to the majority, Washington reports are replete with decisions regarding termination rights, and one can find support for any argument in one ofthe many cases. Nevertheless, S.J. is this division's own recent opinion. In

### In re Welfare SJ., T.H. appealed the termination ofherparental rights toher son, SJ. T.H. argued that thetrial court erred in finding all necessary services had been offered orprovided becauseDSHS failed toprovide timely mental health services or sufficient attachment and bonding services. We agreed. T.H. gave birthto S.l. in 23No. 32437-1-111 In re Welfare of B.P. (Dissent)

November 2002. In April 2005, DSHS removed S.J. and his olderhalf-brother from T.H.'s care due to allegations ofunsanitary living conditions and drug use. Upon entry of

a dependency, the trial courtrequired T.H. to complete a substance abuse evaluation and treatment, submittorandom urinalysis testing, complete a psychological evaluation, participate in mental health services,join a domestic violence victims' program, participate in aparenting assessment, and establish a safe, clean, drug-free home. Between June 2005 and December 2005, T.H. unsuccessfully treated at three inpatient treatment centers. T.H. discovered she was pregnant in January 2006. T.H. successfully completed an inpatienttreatmentprogram in February 2006. Sheplanned for an outpatientprogram and arranged for posttreatment living at the Safe HarborHouse and Maternity Home. In March 2006, T.H. participated in apsychological evaluation with Christine Guzzardo. Guzzardo diagnosed T.H. withbipolar disorder and borderline intellectual functioning. T.H. began individual counseling, actively participating in her sessions and improving her ability to identify symptoms ofabipolar episode and getthe help she needed. In April 2006, T.H. began supervised visitation with SJ. at the YWCA. In May 2006, she transferred to the YWCA's parenting education program. Despite making progress in her initially identifiedparental deficiencies, DSHS decided T.H. had not secured suitable housing orprogressed in her relationship with SJ. In May 2006, DSHS petitioned to terminate T.H.'s parental rights. During the pendency ofthe termination petition in s.J., T.H. successfully 24No. 32437-1-111 In re Welfare of B.P. (Dissent) graduated from the drug treatment outpatientprogram. At trial, she explained she could have completed treatment sooner had her mental health issues been addressed at the same time. T.H. moved into the Safe Harbor House and Maternity Home as planned. T.H. had her otherbaby in August 2006. The baby remained in T.H.'s care. In November 2006, T.H. moved into St. Margaret's women's shelter in order to find housing allowing SJ. to live withher. While at St. Margaret's, T.H. cared for her newborn. In December 2006, T.H. and SJ. began therapeutic visitation with Carol Thomas. Thomas' role was to help create a healthy parent-child relationship. T.H. faithfully kept the scheduled visitations and applied parenting suggestions. The therapeutic visitation continued until March 2007,justbefore trial, when the visits were suspended at Thomas' urging due to the harmful impact ofthe visits on SJ. SJ.'sbehavior toward T.H. grew resistant. Thomas theorized SJ. had detached from T.H. and had attached to his foster parents. SJ. clung to the foster parents when he arrived at visitation and SJ. encountered stress after visits. Atthe termination trial, a family preservation therapisttestified that she couldprovide attachment therapy and that T.H. had requested the therapy. At trial in s.J., DSHS' social worker testified that T.H. and SJ. lacked bonding. Nevertheless, he had notreferred T.H. for bonding and attachment services, in part, because T.H. did not request the services and he wanted to save her time traveling on the bus. The social worker testified he supported the termination despite his recommendation thatthe newborn remain with T.H., because T.H. had failed to rectify 25No. 32437-l-III 

### In re Welfare of B.P. (Dissent)

herrelationship with SJ. and because SJ. had been out ofhercare for one and a half years. The social worker opinedthat SJ. could not wait any longer for T.H. to remedy herparental deficiencies and that he needed stability. At trial in 

### S.J., the YWCAparent educatortestifiedthat SJ.'sbehaviorescalated duringthe visits. Theparent educator opined that T.H. made no progress in herparenting ofSJ. because she was unable to recognize SJ.'s emotional needs. Carol Thomas noted thatT.H.'s attempts toprovide behavior controls and to guide and direct SJ. were minimal and ineffective. She opinedT.H. was unable to supply SJ. with emotional support, calm SJ., orinitiatephysical contact with SJ. without SJ. becoming angry. Thomas opined it was unlikely that a healthy relationship would develop in the near future due to SJ.' s entrenched perception ofhis mother and T.H.' s inability or unwillingnesstoparent 

### S.l. effectively. The guardian ad litem testified 

### S.l. encountered behaviorproblems including hitting, kicking, harming animals, destroyingproperty, and otherviolent behavior. She statedthat SJ. could not wait any longer for T.H. to remedy herparental deficiencies despite T.H.'s success and improvement. In its findings offact, the trial court found that, despite numerous services, T.H. failed to repair herrelationship with SJ. Thetrial court noted Carol Thomas' testimonythatT.H. was unlikelyto perceive and cope with 

### S.l.'s behaviorproblems in the near future. On appeal in 

### s.J, we reversedthetermination ofS.J.'sparental rights. We held that the trial court erred in finding all necessary services had beenprovided, despite 26

### No. 32437-1-111 In re Welfare of B.P. (Dissent) recognizing that our review was limited to determining ifsubstantial evidence supported the trial court's findings offact. We noted that the State failed to earlierintegrate mental health services with chemical dependency services. Thus, DSHS failed to tailorT.H.'s services to her concurrent problems. More importantly, we noted that DSHS failed to provide necessary bonding and attachment services, even though the State contendedthat

a lack ofattachment and bonding prevented T.H. from caring for SJ. We rejected the State's speculative argumentthat T.H. could not benefit from attachment and bonding services. The record showed T.H. applied the suggestedparenting skills and attemptedto control SJ.'sbehaviorbut was met with unusually strong controlling and aggressive behavior from SJ. DSHS needed to work with SJ. to reduce this unusual behavior. T.H. didnot possessthe responsibility to counteract SJ.'snew controlling and aggressive behavior related to his detachment from T.H. during his bonding withthe foster parents while in State care. To the contrary, DSHS held the responsibility to identify needed bonding services and toprovide them, particularly when DSHS relied onthe lack of bonding in advocating termination. The child'sbonding with foster parents was not an

excuse for termination. The record showed T.H. maintained arelationship with her other childwho did not exhibit S.J.'s unusual controlling and aggressive behaviors. Considering SJ.'s detachment from T.H. while in State care, placingthe burden on T.H. to repair the detachment damage was fundamentally unfair. The trial court erred in finding that all necessary services hadbeenprovided. 

### 27No. 32437-I-III In re Welfare of B.P. (Dissent)

Inthis appeal, the State blames H.O. for the termination ofher parental rights becauseH.O. relapsed in substance abuse when B.P. was ten months old, a critical age for aparent and child tobond. The State seeks to distinguish ourruling in 

### S.J. onthis ground. Although T.H. also lost contactwith SJ. atthis critical age, the loss resulted from a relapserelated to the State's failure to provide mental health counseling withthe chemical dependency assistance. Nevertheless, in this appeal, testimony shows that mental health counseling improvedthe secondtime H.O. underwent chemical dependency treatment at IsabellaHouse. Still otherreasons demand we follow SJ. in this appeal. Ifone logically extendedthe State's argument, the State should have terminated the parental rights at the time ofH.O.'srelapse in May 2012 or at least withheld additional services from H.O. Uponthe relapse, H.O. needed months torecover from substance abuse, and the services wouldnot be complete before B.P. turned one year of age. Underthe State's theory, B.P. and H.O. could neverhave bondedbecauseB.P. would not be within the care ofH.O. as she approached one year ofage. Underthe State'stheory, services wereuseless upon H.O.'srelapse. Nevertheless, DSHS never told H.O. to stop attemptingto improve herselfso she couldregain care ofB.P. Instead the State teased H.O. and continuedto provide services, albeit insufficient services, for another year and one-half. H.O. engaged inthe services sothat B.P. would be returned. All oftheprovided services met success. Under such circumstances, both the law and 28No. 32437-I-III In re Welfare of B.P. (Dissent) equity demand areturn ofB.P.to her mother. Accordingto the State, the first year is critical to bonding betweenthe child and the parent. This lack ofbonding is irreparable, at least when the child lives with foster parents. Therefore, under the State'stheory, aparent absent from her child's first year of life is subjectto automatic termination ofparentalrights. Ifthe State'sposition were accurate, the law would need changing. The law does not state that one whohas little contactwith a child beforethe child reaches one year ofage must have rights terminated. The Washington statutory scheme makes no mention ofeven a presumption that the parent and child cannot form an attachment after the childturns one year ofage. A presumption that aparent and child cannot later bond also conflicts with principles ofattachmenttheory as developed and explained by mental health practitioners. Commentators surveyingrelevant case law discoveredthat courts employ theterms "bonding" and "attachment" "in an all-or-nothing manner-eitherthe child is bonded or attached orthe child is not. They do not acknowledge the spectrum of intensity in relationships. From a neurodevelopmental point ofview, the courts' use of these terms is imprecise." DavidE. Arredondo & Leonard P. Edwards,Attachment, Bonding, andReciprocal Connectedness: Limitations of Attachment Theory in the Juvenile andFamily Court, 2J. CENTERFOR FAMILIES, CHILD. & CTS. 109, 116 (2000). Commentators urgejudges and attorneys to exercise caution when employing any concept "referringto humanrelatedness." Arredondo, supra, at 123. 29No. 32437-I-II1 In re Welfare of B.P. (Dissent)

Attachment is not a quantifiable trait, but rather a theory first developed in the 1940s. Attachmenttheory postulates "thatyoung children attach to theirparents, usually their mothers, and that their later functioning can be explained bythe quality ofthis attachment." Pamela S. Ludolph & MilfredD. Dale,Attachment in Child Custody:An AdditiveFactor, Nota Determinative One, 46FAM. L.Q. 1,2(2012). Forresearch purposes, theoreticians classify attachments into one offive categories: secure, insecureavoidant, insecure-resistant, ambivalent, or disorganized. Arrendondo, supra, at 110-11. Nevertheless, these "rigidly defined categories

... are insufficiently subtle to describe in

a forensic setting the rich and complex spectrum ofdimensions ofhuman interrelatedness." Arredondo, supra, at 111. The limits to which a court should rely on attachment betweenthe parent and child in aparental terminationproceeding comes into focus when considering that only about 60 percent ofsurveyed American childrendemonstrate predominately secure attachment. Arredondo, supra, at 110. Despite this lack ofstrong attachment, "[it] would not seem sensible to regard 40 [percent] ofinfants as showingbiologically abnormal development." Arredondo, supra, at 110 (internal quotation marks omitted). Stated another way, while secure attachment is the ideal, it is by no means static and is one of several forms ofattachmentthatchildren will develop overtime. One courtobserved: Itis usual for an infantto form morethan one attachmenteven in the first years oflife

... [T]he evidence does not necessarily suggestthat it is essential or even optimal for mother and child to form an exclusive dyad. Indeed, a spreading ofattachment relationships over several figures may be 30No. 32437-1-III In re Welfare ofB.P. (Dissent) healthy and may, under some circumstances, prove to be highly adaptive. In one sense, "multiple"mothering is an insurance against separation disturbance. In re Interest of R.B. W, 192 Ill. App. 3d477,548 N.E.2d 1085, 1096-97, 139 Ill. Dec. 529 (1989) (citation omitted). As the commentators and the testimony ofLori Eastep and other providers demonstrate, the State'sposition that H.O. missed her window ofopportunity to form a

secure attachmentwith B.P. is theoretically incorrect in addition to being legally insufficienttojustifY termination. The State could and should have offered attachment therapy to H.O. and B.P. as theirproviders recommended. IfI wrote the majority opinion, I would end here because the analysis regarding failure to provide necessary services would be sufficientto reverse the trial court's order oftermination. I continue with this dissent, however, to identifY and ruminate on other grounds on whichthe order should be vacated. A dissent needs to employ all arrows in its minority quiver. Remedyof ParentalDeficiencies inNear Future Another ofthe six statutory requirements for termination ofparental rights is the parent's failure to promptlyremedy parental deficiencies. Under RCW 13.34.l80(1)(e), DSHS must show: That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. A parent's failure to substantially improveparental deficiencies within twelve months following entry ofthe dispositional order shall giverise to a rebuttable 31No. 32437-1-111 

### In re Welfare of B.P. (Dissent) presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable ofcorrecting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors: (i) Use ofintoxicating orcontrolled substances so as to renderthe parent incapable ofproviding propercare for the child for extended periods oftime or for periods oftime thatpresent a risk ofimminentharm to the child, and documented unwillingness ofthe parentto receive and complete treatment or documented multiple failed treatment attempts; (ii) Psychological incapacity ormental deficiency ofthe parentthat is so severe and chronic as to render the parent incapable ofproviding proper care for the child for extendedperiods oftime or for periods oftime that present arisk ofimminentharm to the child, and documented unwillingness ofthe parenttoreceive and complete treatment or documentation that there is notreatmentthatcan rendertheparent capable ofprovidingproper care for the child in the near future; or (iii) Failure ofthe parentto have contactwith the child for an extendedperiod oftime after the filing ofthe dependencypetition ifthe parentwas provided an opportunity to have arelationship with the child by 

# I the department or the court and received documented notice ofthepotential consequences ofthis failure, exceptthat the actual inability ofaparentto have visitation with the child including, but not limited to, mitigating circumstances such as aparent's currentor prior incarceration or service in the military does not in and ofitselfconstitute failure to have contact with the child. The "near future" is akey term in RCW 13.34.180(l)(e). The parental deficiencies mustbe remedied such thatthe child may bereturnedto the parent in the "nearfuture." "Near future" is determined from the child'spoint ofview. 

### In re Dependency of A.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004). What constitutes "near future" depends on the age ofthe child and the circumstances ofthe child'splacement. 

### In re DependencyofT.L.G., 126 Wn. App. 181,205,108P.3d 156 (2005). The cases 32 

# INo. 32437-1-111 In re Welfare of B.P. (Dissent) supportthe propositionthatthe youngerthe child, the shorter is the "nearfuture." A matter ofmonths for young children is not within the foreseeable future to determine if there is sufficienttime for aparentto remedy his or herparental deficiency. In re Welfare of 

### MR.H, 145 Wn. App. at 28 (2008). The focus ofsubsection (e) is "whetherthe identified deficiencies have been corrected." 

### MR.H., 145 Wn. App. at 27. Even when evidence shows that the parentmay eventually be capable ofcorrectingparental deficiencies, termination remains appropriate when deficiencies will notbe corrected within the foreseeable future. In reA.

# w., 53 Wn. App. 22, 32, 765 P.2d 307 (1988). Ifthe State offers orprovides all necessary services reasonably capable ofcorrectingparental deficiencies within the foreseeable future, and theparent does not substantially improve within a year ofthe dependency order, a presumption arises that the State has establishedRCW 13.34.180(l)(e). In re Welfare of A.G., 155 Wn. App. 578, 590,229P.3d 935 (2010). Even ifRCW 13.34.180(l)(e)'s rebuttablepresumption applies, the State must convincethe trial court ofahigh probability that the parentwill not improve in the near future. In re Welfare of C.B., 134 Wn. App. at 956 (2006). Because aparent's constitutionalrights are implicated, the presumption shifts only the burden ofproductionto the parent. C.B., 134 Wn. App. at 955. Parents before the court in dependencyproceedings rarely come without significant difficulties. In re Dependency ofTL-G., 126 Wn. App. at 203. Nonetheless, 33No. 32437-I-III 

### In re Welfare of B.P. (Dissent)

the paramount goal ofchild welfare legislation is to reunite the child with his or her legal parents, ifreasonably possible. 

### In re Dependency of KNJ., 171 Wn.2d at 577. A relevant decision is 

### In re Welfare 

### ofC.B., 134 Wn. App. 942, 956, 143 P.3d 846 (2006). In 

### C.B., this courtreversed aparental termination orderbecause the mother showed significant remediation by the time oftrial. DSHS contended that the past behavior ofthe mother establishedthe rebuttable presumption. The mother contended that she rebutted thatpresumption because she made substantial progress. The mother's home hadearlierbeen found unfit for children. Nevertheless, DSHS presented no testimony atthe terminationhearing that the mother'shome was unsafe. Although she

was dilatory, the mother completed parenting classes. She was more dilatory in attending anger managementclasses, but was in attendance at thetime oftheterminationtrial. In 

### Welfare 

### ofC.B., the mother's primary deficiency related to drug use. This court held that the mother met herburden to produce evidence ofimprovementbecause she completed her chemical dependency programs and presented evidence from her counselors and friends ofa goodprognosis. The mother's only outstanding deficiency was anger management, for which she was enrolled to begin a class shortly after the termination hearing. DSHS presented no evidence that reunification would require more than oneyear. To the contrary, the only further treatment needed would end in four months. Beforetrial, H.O. completed her chemical dependency training and mental health 34No. 32437-1-II1 In re Welfare of B.P. (Dissent) counseling. She addressed all ofthe parental deficiencies identified. Hermental health counselor found thatherhealth had improved suchthat she could care for B.P. H.O. was sober for nine months atthe time oftrial. She cared for one child younger in age than B.P. I recognize that returning B.P. to H.O. would create initial traumato B.P. and witnesses expressed concern about this trauma. Nevertheless, Lori Eastep, the State's primary expertand witness, could not identify any deficiency that H.O. encountered in parenting at the time oftrial. Eastep held no safety concerns with H.O. caring for B.P. Eastep agreedthatreturning B.P. to H.O. couldbe a very positive thing for B.P. The State wanted Eastep to testify that B.P. could not be returned to H.O. Eastep refused. She instead noted consequencesto B.P. ofterminating H.O.'srights. Eastep wanted continued contactbetweenH.O. andB.P. This testimony undercuts the State'sposition that allowing a relationship to continue betweenH.O. and B.P., with an ultimate goal of reunification, would causepermanent emotional damage to B.P., ratherthan temporary emotional pain. Arredondo, supra, at 120. 

### In affirming the trial court's finding that H.O. had not correctedparental deficiencies, the majority commits some factual errors. Themajority claims that Lori Eastep testified that B.P. would never be able to form a real attachmentto H.O. and forcing B.P. to do so would significantly injure B.P.'s mental health. Majority at4. Eastep utteredno such testimony. As previously indicated, Eastep advocated a 35No. 32437-1-111 In re Welfare of B.P. (Dissent) continuing relationship between H.O. and B.P. The majority claims that services were offeredto the motherwithout the desired effect. The majority does not identifY the servicesprovided without success. To the contrary, the services improved H.O.'smental health and rendered her sober. When affirming the trial court'sdecision, the majority ignores the significance of H.O.'s successfulparenting ofA. The majority only mentions the existence ofA. intwo sentences nearthe end ofthe opinion. Thetrial court and the majority worry about H.O. relapsing in substance abuse. Although I share in this disquietude, this worry cannot suffice for termination ofparental rights. Otherwise, no alcoholic ordrug abuser could everhave his orherchildren returned. A sober alcoholic or soberdrug addict struggles to abstain during the rest of her life. Chemical dependency and a potentialrelapse were not sufficient in 

### s.J. to terminatetheparent'srights, and it is not sufficienttoterminate H.O.'srights to B.P. B.P. 's BestInterest The second step in the State'sburden in aparental termination case involves proving by apreponderance ofevidence thattermination is in the child'sbest interest. RCW 13.34.190(l)(b). AsnotedinInre Welfare of A.B.: By virtue ofRCW 13.34.180(1) and RCW 13.34.190, a Washington courtuses a two-stepprocess when deciding whetherto terminate the right ofaparentto relate to his orhernatural child. The first step focuses on the adequacy ofthe parents and must beprovedby clear, cogent, and convincing evidence. The second step focuses on the child's best interests and need be proved by only apreponderance ofthe evidence. Only ifthe 36No. 32437-1-III In re Welfare of B.P. (Dissent)

first step is satisfied may the court reach the second. 168 Wn.2d 908,911,232P.3d 1104 (2010) (footnotes omitted). No specific factors are involved in a best interest determination, and each case must be decided on its own facts and circumstances. In re Welfare of MR.H., 145 Wn. App. at 28 (2008). The emptiest element ofparental termination cases is the "bestinterest" component. Theterm "best interest" is a vague construct. Its overuse renders the term meaningless. See John Thomas Halloran, Families First: ReframingParentalRights as FamilialRights in Termination of ParentalRightsProceedings, 18 U.C. DAVIS J. JUV. L. & POL'y 51, 76-77 (2004). "[N]umerous critics have objected to the best interest determination claiming that it 'allows thejudgeto importhis personal values

... and leaves considerable scope for class bias.'" Jennifer Ayres Hand, Note, Preventing Undue Terminations: a CriticalEvaluation of the Length-of-Time-Out-of-Custody Groundfor Termination of ParentalRights, 71 N.Y.U. L.

### REv. 1251, 1275 (1996). I recognize that many witnesses, upon whomthe trial court relied, testified that termination ofB.P.'srelationship with H.O. was in B.P.'sbest interest. Therefore, Iwill not focus on this elementofthe terminationprocess. I observe, however, some telling testimony ofthe experts. Lori Eastep saw B.P. andH.O. interact as much as any other witness. The State asked Eastep iftermination ofthe parental-childrelationship served B.P.'sbest interest. The State did not receive the desired response. Eastep stated H.O.'s retaining parental rights was in B.P.'s best interest. The exchange went: 37No. 32437-1-III In re Welfare of B.P. (Dissent) Q. So at this time do you have an opinion about whethertermination is in [B.P.'s] best interest? A. Ithinkpermanency is in [B.P.'s] best interest. This may not be thebest answer, but I had suggested a guardianship. That'swhat I thought was in [B.P.'s] best interest was for [H.O.] to retain herparental rights and be involved with herchild, but that [B.P.] remain with her current placement because she is attached to them and is doing very well there. RP at 85. Amanda Clemons testified she does not believe it is in B.P.'sbest interests to have another disruption in care. She did not directly testifY that termination ofparental rights

was in B.P.'sbest interests. Clemons never interacted with H.O. and B.P. Guardian ad Litem Karen Schweigert lacks the qualificationsthat other witnesses held. She testifiedtermination ofH.O.'sparental rights is in B.P.'s best interests. Nevertheless, Schweigerthad not seen H.O. and B.P. together since visits resumed in August 2013. Her concerns about H.O.'s decision making arose from information she received from others, not from direct observations. Marcey Monohan testifiedtermination ofH.O.'sparent rights is in B.P.'sbest interests. Nevertheless, she acknowledged she did not observe the therapeutic visits between H.O. and B.P. conductedbyLori Eastep. Practitioners consider such observations to be crucial in order to render a qualified, professional opinion as a mental health expert. Arredondo, supra, at 121. The parties and the majority ignore that severingties between B.P. and H.O. also terminates the companionship oftwo sisters only one year apart in age. One ofthejoys 38No. 32437-I-III In re Welfare of B.P. (Dissent)

oflife is therelationship with one's siblings. An only child often regrets the lack ofa brotheror sister. The siblingrelationship generally continues well beyondthe death of the parent. "Adults whotend to see the best interestofthe child from theirown perspective sometimes overlookthe importance ofsiblingrelationships in boththe short and longterm." Arredondo, supra, at 122. ConstitutionalRightto Parent Even ifwe assume the State proved all elements ofthe Washington statutory scheme for termination, includingtheelement ofthebest interests ofB.P., the trial court erred in terminating theparent-child relationship. Althoughthe trial court found that H.O. is an unfitparent, this finding is not supportedby the record. This finding contradicts the fact thatH.O. successfully parents A. Absent a showing ofparental unfitness by clear and convincing evidence, a state may notterminate a parent'srightto

care ofherchild regardless ofthe State'sparental termination statutes. The State did not

evenprove unfitness ofH.O.by a preponderance ofthe evidence. BoththeUnited States and Washington Constitutionsrecognize a parent's fundamental liberty interest in care and custody ofher children. U.S. CONST. amends. V, XIV; WASH. CONST., art. I, 

### § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982);In re Custody of Smith, 137 Wn.2d 1,27,969P.2d 21 (1998). The fundamental liberty interest ofnatural parents in the care, custody, and management oftheir child does not evaporate simplybecausethey have notbeen model parents or 39No. 32437-1-III 

### In re Welfare ofB.P. (Dissent)

have losttemporary custody oftheir child to the State. 

### Santosky v. 

### Kramer, 455 U.S. at 753. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction oftheir family life. 

### Santosky v. 

### Kramer, 455 U.S. at 753. The child also has an interest in preventing the erroneous termination ofits relationship with its natural parents. 

### Santosky, 455 U.S. at 765. The concept that all children are wards ofthe state and that the state and its agencies have an unhampered right to determine what is best for the child belongs to a repudiatedpolitical and moral philosophy foreign and repugnant to American institutions. 

### In re Welfare ofWarren, 40 Wn.2d 342,343,243 P.2d 632 (1952). Courts undertake a grave responsibility when they deprive parents ofthe care, custody and control oftheir natural children. 

### In re Welfare ofSego, 82 Wn.2d at 738 (1973). Therefore, terminatingparental rights is one ofthe severest ofstate actions and implicates fundamental interests. 

### In re Welfare of JM, 130 Wn. App. 912, 921, 125 P.3d 245 (2005). The six elements ofparental termination cases, found in RCW 13.34.180 and .190, address, in part, whether aparent is unfit butthe elements are not conclusive or exclusive. Even ifthe State establishes the termination factors in RCW 13.34.180(1), the trial court may not terminate the rights ofa currently fit parent. 

### In re Welfare of A.B., 168 Wn.2d at 919-20 (2010);

### In re Welfare of A.G., 160 Wn. App. 841, 845,248P.3d 611 (2011); 

### In re Welfare ofShantay CJ, 121 Wn. App. 926, 936, 91 P.3d 909 (2004); 

### Santosky, 455 U.S. 40No. 32437-1-III In re Welfare of B.P. (Dissent)

at 760. Termination ofthe parent-childrelationship mustbe based on currentparental unfitness. In re Dependency of T.L. G., 126 Wn. App. at 203 (2005). Identifying parentingdeficiencies is not the equivalent ofprovingparental unfitness. In re Dependency of Schermer, 161 Wn.2d 927,943, 169 P.3d 452 (2007). A finding ofcurrent unfitness requires more than the determination thatDSHS proved by a preponderance ofthe evidencethat a parenting deficiency exists. The due process clause demands the State establish unfitness by clear, cogent and convincing evidence. In re Welfare of A.B., 168 Wn.2d at 920; In reA. W, 53 Wn. App. at 29 (1988). When the evidence is insufficientto support a finding thatthe mother ofa child is currently deficient, the trial court cannot make such a finding, and, without such a finding, the trial court cannotterminate the mother's relationship with her child. In re Welfare 

### of A.B., 168 Wn.2d at 920; In re Welfare 

### ofCB., 134 Wn. App. 942, 959, 143 P.3d 846 (2006). When the evidence is insufficientto support a finding thatthe father is currently deficient at the time oftrial, termination is improper even ifthe evidence shows thatthe father is deficient at an earliertime. In re Welfare of A.B., 168 Wn.2d at 920;In

re Welfare 

### of Churape, 43 Wn. App. 634, 638, 719 P.2d 127 (1986). RCW 13.34.020 reads that the child's rights and needs prevail, butthe State ignores otherportions ofthe statute. The first two sentences ofRCW 13.34.020 read: The legislature declares thatthe family unit is a fundamental resource ofAmerican life which should be nurtured. Toward the continuance ofthis principle, the legislature declares that the family unit 41No. 32437-I-III In re Welfare of B.P. (Dissent)

shouldremain intact unless a child'sright to conditions ofbasic nurture, health, or safety isjeopardized. Thetrial court erred by finding H.O. was currently unfit to parent B.P. Lori Eastep testified she does not have any safety concerns when H.O. and B.P. are together. Eastep could not identifY any problem in H.O.'s parenting. The fact that H.O. cared for A. established the contrary. All witnesses who observed A. were impressed with A.'s development, ifnotH.O.'s mothering ofA. Eastep described A. as "avery healthy, happy little girl." RP at 73. Marcey Monohan testified that as long as H.O. remains clean and sober, she has no concern regarding H.O.'s ability to meet A.'s needs. Since B.P. canreceive basic nurture, health and safety from H.O., RCW 13.34.020 demands the return ofB.P. to H.O. The State'sprimary concern is B.P.'s lack ofattachment to H.O. The fact children have been in foster homes and have developed ties to their fosterparents cannot be the 

# I

controlling consideration. In re Welfare ofChurape,43 Wn. App. at 639 (1986). In re 

# I 8.1., 162 Wn. App. 873 (2011) established that a lack ofattachment to the child does not render aparent unfit. 

### In S.J., we also held that the termination orderviolated T.H.'s constitutional rights toparent herchild. The record lacked a showing thatT.H. was unfit 

# I to parent. In re Welfare of A.B., 168 Wn.2d 908, 919, 232 P.3d 1104 (2010) is also parallel. 

# I

The trial court found little likelihoodthat conditions will be remedied so that the child could be returned to orplacedwith her father in the near future. Despite the father's 

# , 42No. 32437-1-111 In re Welfare of B.P. (Dissent)

efforts to rendervisitations meaningful, he failed to establish a "close attachment" with his daughter. The trial court found this lack ofbondingprofound and intractable and attributed itto subtle changes in the child'srelationship with her caretaker. The state Supreme Court reversed the termination because ofthe lack ofa finding that the father

was currently an unfitparent. Foreignjurisdictions haverejectedthe argument that a child should notbe returned to a natural parent because the child has emotionally attached to foster parents'. Although thesejurisdictionsrendered decisions in other contexts, the courts' persuasive reasoning establishes that termination ofH.O. 'sparental rights constitutes a violation of the due process clause. The courts' analysis ofexperttestimony on childhood bonding is also instructive. In In re B.B.M, 291 S.W.3d463 (Tex. App. Dallas. 2009), Shawn M. challenged the trial court's order appointing two nonparents as managing conservators or guardians ofhis son. The father argued that the evidence did not support thejury's finding that appointing him as managing conservatorwould significantly impair the child'sphysical health oremotional development. The appeals court agreed and remanded for a new trial. B.B.M. was the biological child ofShawn M. Shawn M. separated from the motherbefore B.B.M.'sbirth. Without Shawn M.'s approval, the motherpermitted adoption ofB.B.M. by Travis and Sabra Hess. An adoption coordinatortold the Hesses thatthe father ofB.B.M. consented to the adoption, and the Hesses took B.B.M. from his 43No. 32437-I-III In re Welfare of B.P. (Dissent) birthplace in Dallas to Idaho. The adopting agency later brought actionto terminatethe parental rights ofShawn M. Shawn M. counter-petitionedto establish his paternity, and the Hesses intervenedto request termination ofShawn M.'sparental rights or, in the alternative, to grant them conservatorship over B.B.M. Thetrial court entered an order confirmingthejury'sverdictthatrefusedto terminate Shawn M.'sparentalrights, but granted the Hesses conservatorship over B.B.M. TheTexas law on childhood conservatorship echoes Washington law on termination ofparental rights. To gainthe conservatorship overthe child, the nonparent mustprove by a preponderance ofthe evidence that appointment ofthe parent as managing conservator significantly impairs the child'sphysical health or emotional development. Evidence that a nonparent would be abetter custodian ofthe child was inadequate to meetthis burden. The Hesses relied on evidence ofthe impairment of B.B.M.'s emotional developmentresulting from his removal from theirhome. The appellate courtresponded that the proper focus was on whetherthe placement ofthe child with the naturalparent would significantly impairthe child's physical health or emotional development. The court answered thatthe negative effect on the child caused by his separation from nonparents is not sufficientto deny a natural parent managing conservatorship, because ofthe parent's fundamental liberty interest in the care, custody, and management ofhis child. InB.B.M,the Hessespresented the experttestimony ofDr. BethBontempo, a 44No. 32437-1-III In re Welfare of B.P. (Dissent) psychologist, who conducted a "bonding and attachment assessment." Bontempo stated that she could "hypothesize based on attachment theory" that the child at issue would experience a breach oftrust, broken attachment, and a sense ofabandonment iftaken from the Hesses. In re B.B.M, 291 S.W.3d at468. Bontempo conceded, however, the difficulty in predictingthe future ofa child. The Texas appellate courtrelied on the rule that a merepotential threat, as opposed to evidence ofactual harm to the child's emotional development, was insufficientto deny a natural father the right to raise his own

son. Although Shawn M. did not have the difficulthistory that H.O. has, B.B.M illustrates that the State may notterminate parental rights based on a lack ofattachment between the child and the parent. The Texas court noted thatthe rights ofa naturalparent

are essential and far moreprecious than any property right. In re Guardianship of Ashleigh

### R., 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984 has an outcome similar to In re B.B.M A mother appealed from ajudgment appointing the grandmother as guardians for hertwo daughters. The mother argued that the trial court lacked authority underthe New Mexico Probate Code to appoint guardians for the children when she retainedtherightto custody. She also argued thatthe trial court should have grantedher custody ofherdaughters in the absence ofan express finding that she was an unfitparent. The appeals court agreed and held that the trial court could not deny the mothercustody without an express finding that she was unfit. InAshleighR., the two children assumed residency with their maternal

. 45No. 32437-1-111 In re Welfare of B.P. (Dissent) grandmotherwhen the mother and father experienced marital difficulties. When the marriage ended in divorce, the motherjoinedthe grandmother and the two girls. Forthe next two years, the mother moved in and out ofthe house, sometimes taking the girls withher butusually leaving them in the care ofthe grandmother. When the mother demanded return ofthe daughters, the grandmother filed a guardianship action. The New Mexico court inAshleighR. applied therule that the trial court must ordinarily make an express finding that the parent is unfit before denying the parent custody. The court recognized the difficulties involved for children who are removed from stable, loving homes and separated from people who have acted as psychological parents. After aprolonged separation, the biological parent, though notunfit, may be incapable ofreestablishing the necessary parental bond with the child. Nevertheless, the parent still may regain custody unless the court finds parental unfitness orextraordinary circumstances. The court is not free to weigh the best interests ofthe child. Theparent does not forego the rightto custody ofa childby the child entering the custody ofanother when the parentneeds assistance. Unstable or inadequateparents can tum their lives around and become suitable custodians for their children. The fundamental liberty interest ofnatural parents in the care, custody, and management oftheir child does not evaporate simply because they have notbeen model parents or have losttemporary custody oftheir childto the State. InAshleigh R., the grandparents testified that the girls did not wantto live with 

### 46 

# INo. 32437-1-111 In re Welfare of B.P. (Dissent)

their mother and experienced nightmares and other signs ofemotional stress when they visited her. The appeals court answered that thepsychological harm from the transfer of custody cannotbe presumed, but mustbe proven by those who seek to deny custody to the parent. Relying on a text on attachment and bonding, the court observed that commentators warn against overemphasizingpotential psychological harm. The court noted that any transition is likely to cause some stress but not necessarily long-term psychological damage. In In re Guardianship of 

### J.c., 129 N.J. 1,608 A.2d 1312 (1992), the court reversed a trial court's ruling terminatingparental rights ofa mothertothree children, despite the children bondingwith foster parents. The motherhad a longhistory of homelessness, domestic abuse, and substance abuse. The children remained in foster care for five years. The trial court ruled that the mother'sparental rights should be terminated, while emphasizing the psychological harm that would result from breaking the bonds that each child had formed with foster caretakers. The trial court blamedthe mother for herinability to plan for their future and her failure to rehabilitate herself. One child was emotionally disturbed as a result ofthe conduct ofher mother. As in this appeal, the State presented aparade ofexpert witnesses at trial who testified to the bonding ofthe children with foster parents and the harm caused by reunification with the mother. Thewitnesses echoed the opinion that severing ofparental ties would be in the best interest ofthe children. The mother presentedtestimony from her chemical 47No. 32437-I-II1 In re Welfare of B.P. (Dissent) dependency counselorthat she completedtreatment and was sober. Nevertheless, the trial court expressed concern, in his findings, thatthe motherwould relapse. When reversing the trial court inIn re Guardianship of J

## c., the Garden State court noted that the law reflects a strong societal bent in favor ofthe integrity ofthe natural family. Parents have a constitutional, fundamental liberty interest in raising their biological children, even ifthose children have been placedin foster care. Termination ofparental rights permanently cuts offthe relationship between children and their biological parents. Few forms ofstate action are both so severe and so irreversible. To show that the child has a strong relationship with the foster parents or might be better offifleft in their custody is not enough. The State mustprove by clear and convincing evidencethat separatingthe child from his orher foster parents would cause serious and enduring emotional orpsychological harm. The New Jersey court, inIn re Guardianship of 

### Jc., reviewedpsychological literature on childhood attachment. The courtnoted competingpsychological theories of the effects ofparental bonding. Some psychologists hold that change underthe right circumstances can playapositive role in children's development. Although natural parents can be a disruptive influence for children who have been adopted, some commentators andpsychologists believe thateliminatingthe natural parents from the children's lives and memory is impossible and therefore wrong. Scholars suggestthat courts rely too often on theories ofparental bondingto keep children in foster carerather 

### 48No. 32437-I-II1 In re Welfare of B.P. (Dissent)

than return them to theirparents. In addition, the uncritical use ofbonding theory can tilt the process in favor ofthe State and its social workers and foster parents and be misused to determine only which set ofparents is optimum or "better" in some vague social sense, rather than capable ofrearing the child without serious harm. The court questioned whether social workers are qualified to express opinions concerningpsychological bonding and the harmful consequencesto the children from its disruption. The New Jersey court discounted, ifnotrejected, testimony from experts who had not conducted a formal bonding study. In the final analysis, the court concludedthatthere was not clear and convincing evidenceto supportthe determination to terminate the mother'sparental rights. The court remanded for further testimony and analysis. In this appeal, no psychologist testified to an attachment disorder sufferedby B.P. No psychologisttestifiedto permanent and serious harm to B.P. ifshe returns to her mother. All agreed that R.O. is parenting ahappy, well-adjusted A. By my dissent, I do not suggestthat DSRS mustrelinquish B.P. to R.O. for the rest ofB.P.'sminority. I only advocate the vacation ofthe termination order. Although B.P. should return to hermother, the dependency should remain for areasonableperiod oftimeto ensurethat R.O. remains sober and capable ofcaring for B.P.



# ! 49