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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE Inthe Matter ofthe Dependency of A.G., dob 2/7/97, and D.G., dob 2/21/98, Minor children, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. ANNE MARIE BUTCHER, Appellant. No. 71000-1-1 (Consolidated with No. 71001-0-1)

UNPUBLISHED OPINION

FILED: August 11, 2014 

### Schindler, J. — Anne Marie Butcher appeals the decision to terminate her 

### parental rights with hertwo teenage children on the grounds that herattorney provided ineffective assistance ofcounsel byintroducing a psychological/parenting evaluation into evidence. Because Butcher cannot establish ineffective assistance, we affirm. FACTS 

### Anne Marie Butcheris the motherof17-year-old A.G. and 16-year-old D.G.1 A.G. was born in 1997 and D.G. was born in 1998. Butcher and her children lived in


### 1Bythe time oftrial, Butcherhad changed hernametoAnne Marie Luke. Butthe parties referto theappellantas Anne Marie Butcher. Forconsistency, we referto her as Butcher.No. 71000-1 (Consol. with No. 71001-0-l)/2 

### Spring Hill, Florida. In 1999, 19-year-old Butcher was convicted ofpossession of a controlled substance. In 2002, Butcherpleaded guilty to two counts of fraud and served 10 months in prison. 

### In2010, Butcher married Steven Butcher.2 InJanuary 2011, Butcher, Steven, and her children moved to Oak Harbor, Washington inorderto be near one ofSteven's 

### childrenfrom a prior marriage. Steven physicallyabused Butcher, resulting in at least one hospitalization. The couple separated inJune 2011. In July 2011, Butcher began dating Brad Crockett. 

### OnSeptember27, 2011, 13-year-old D.G. was locked out of the house and did not know how to contact his mother. A neighbor called the Oak Harbor Police 

### Department. D.G. told Detective SergeantTerri Gardnerthat he wasoften locked outof the house, there was nofood, and his mother often got home late or did not come home at all. D.G. told the detective that he had been staying with friends since September21. 

### Thepolice departmentreferred the case to theWashington State Division ofChildren and Family Services (DCFS). 

### The next day, a socialworker and Detective SergeantGardner spoke to 14-year

### old A.G. A.G. said her motherwas rarely home, there was little food at the house, that her mother drank alcohol, and her mother struggled with drug use. 

### DCFS tookA.G. and D.G. into protective custody. On September 30,2011, the 

### Washington State DepartmentofSocial andHealth Services (DSHS) filed a dependencypetition. The dependencypetition asserts, in pertinentpart: DCFS remains seriously concerned at the mother's inability to provide the basic needs of herchildren (i.e. medical andfood). In addition, the mother 

### reports significantly differing accounts of herchildren's behaviorin 2We refer to Steven Butcher by his first name for clarity. 2No. 71000-1 (Consol. with No. 71001-0-l)/3 comparison to the consistent disclosures ofher children and community members. The mother's lack of basic parenting, general supervision, and disregard for the basic safety ofherteen boy, is both alarming and detrimental to the children's development. On November 30, 2011, Butcher entered into an agreed order ofdependency. 

### Butcher admitted a history ofsubstance abuse and agreed to obtain a drug and alcohol evaluation. Butcher stipulated to the following facts: 

### Mother acknowledges

... her history ofsubstance abuse. Mother agrees to obtain a drug/alcohol evaluation. Mother also acknowledges a history of[child protective services] involvement inthe State of Florida when she was a child. The children remained in out-of-home care. The court ordered supervised visitation a minimum of one hour per week. 

### The November 30 disposition order required Butcher to engage in a drug and 

### alcohol evaluation, obtain random urinalyses (UAs), obtain a psychological evaluation with a parenting component, and follow allrecommendations. 

### In January 2012, Butcher moved toGlendive, Montana with Crockett. Butcher did nottell A.G. or D.G. that she was moving to Montana. Butcher kept in"[s]poradic" contactwith A.G. and D.G., mostly initiated by the children. 

### In April 2012, DSHS assigned socialworker Debra Antetomaso to the case. Antetomaso contacted Butcher and provided her with contact information forservice 

### providers closestto where Butcher was living in Montana. 

### In August 2012, Butchervisited the children at the DSHS office in OakHarbor. Butcher toldAntetomaso and the children that she was going to try to move back to Oak Harbor. Butcher never moved back to Washington.

### No. 71000-1 (Consol. with No. 71001-0-l)/4 

### On September 19, the Statefiled a petition for termination of Butcher's parental rights. The petition alleged, inpertinent part: 

### The parenting deficiencies that led to the dependency of this child centered on the mother's domestic violence relationship, substance abuse 

### history, lack of parenting skills, lack ofstable residence and suspicion that there may be some mental health issues. Services offered to the mother have included the drug/alcohol evaluation and treatment, random UA testing, parenting classes, psychological evaluation, and casework management. 

### The petition also alleged that there was little likelihoodthat conditions would be 

### remedied in the nearfuture: "The mother has failed to participate in a drug/alcohol 

### evaluation and treatment, random UA testing, or a psychological evaluation. She has not demonstrated the ability [to] care for her children." 

### Butcher contacted a psychologist in Montana, Dr. F. Tom Peterson, to comply 

### withthe requirementto obtain the court-ordered psychological/parenting evaluation. Dr. Peterson met with Butcher on October 3, 2012. Inthe "Psychological/Parenting Evaluation," Dr. Peterson states that ifButcher pursues treatment, she would likelybe able to parent. Should Ms. Butcher seek treatment as recommended, there is a very good chance that she will develop parenting skills not subject to unpredictable disruption within a few months. Dr. Peterson recommended mental health counseling and medication, including treatment for attention deficit hyperactive disorder. Dr. Peterson states, in pertinent part: Intervention must include medical treatment for dysregulated, depressed mood if Ms. Butcher is to be able to consistently and adequately discharge parental responsibilities in the foreseeable future. It is not enough that she stay in contact with the children's social worker.... Psychomedical treatment is required.

### No. 71000-1 (Consol. with No. 71001-0-l)/5 

### Dr. Peterson also states in the Psychological/Parenting Evaluation that Butcher is "genuinely desirous of regaining custody," and that "Ms. Butcher's motivation for custody appears to be the love she has for each of her children." 

### Ms. Butcherpossesses strong average intellect and appears physically capable. Despite appearing somewhat emotionally detached from her children, she impressed this examiner as genuinely desirous ofregaining 

### custody. Examination procedures determined that she possesses a strong knowledge ofeach oftheir developmental histories and aware of their interests. 

### Butcher divorced Steven Butcher sometime inthe spring of2013. InApril 2013, Butcher moved to Atlantic Beach, Florida to live with her mother. Butcher did not tell 

### A.G., D.G., or DSHS that she was moving to Florida. On May 15, 2013, the court entered a permanency planning hearing order. The order states that Butcher had not provided documentation ofparticipation indomestic 

### violence support services through Citizens Against Domestic and Sexual Abuse (CADA), obtained a drug and alcohol evaluation, or provided random UAs. The court ordered Butcherto participate in a drug and alcohol evaluation, provide random UAs, participate indomestic violence services through CADA, and pursue mental health counselling and medication management as recommended by Dr. Peterson in the Psychological/Parenting Evaluation. On June 3, 2013, after Antetomaso learned Butcher had moved back to Florida, Antetomaso sent Butcher a letter asking whether she needed any assistance in obtaining domestic violence services or a drug and alcohol evaluation. Antetomaso spoke with Butcheron the phone in late June. According to Antetomaso, Butcherwas
aware ofthe services she needed to engage in but did not ask for any assistance in obtaining those services.

### No. 71000-1 (Consol. with No. 71001-0-l)/6 

### The termination trialbegan on June 25, 2013. Butcher appeared bytelephone from Florida. The State introduced into evidence the dependency petitions, the orders ofdependency, and the permanency planning hearing orders as to each child. 

### Butcher's attorney offered, and the court admitted intoevidence, the Psychological/ Parenting Evaluation. Butchertestified the children had Sioux Indian heritage. The court continued the trial to August 27, 2013 in order to determine whether the Indian Child Welfare Act 

### (ICWA), 25 U.S.C. ch. 21, applied.3 Aftersending notices to several tribes, the State determined the ICWAdid not apply. Atthe end of July, Butcher moved back to Montana with Crockett. When the trial resumed on August 27, the State called social workerAntetomaso, Butcher, A.G., and D.G. to testify. Butcher appeared by telephone from Montana. Social workerAntetomaso testified that "there is little likelihood that her parental deficiencies could be remedied by allowing the children to return" and Butcherwas "unfit to parent." The State also called Butcherto testify. Butcher admitted that she did not contact the service providers Antetomaso referred herto in Florida or Montana, and she 

### made no attemptto contact anyone about a drug and alcohol evaluation. Butcher acknowledged she read the Psychological/Parenting Evaluation, understood that it told herto seek counselling and medication, but said she did not believe she needed either

treatment or medication. 

### Fifteen-year-old D.G. testified that "I would rather be with a fosterfamily that I'm 

### living with right nowbecause they're a lot more stable" and he's "happy there." Sixteen3The courtentered an order terminating the parental rights of the father, Daniel Gilman. 6No. 71000-1 (Consol. with No. 71001-0-l)/7 

### year-oldA.G. testified that her life with the foster family was "verystable.

... Iam provided for. Ihave all of my needs met. I'm happy." A.G. said that the "most 

### importantthing" to her was "[stability. A good home to come back to." A.G. testified that when she lived with her mother, they moved around a lot, and 

### she did not spend a full year at the same schooluntil she moved toWashington. A.G. said that she and her brother would often live with relatives for several months at a time. 

### A.G. testified that food was "pretty scarce" at the end of the month after food stamps ran out. A.G. said she had been locked out of the house and her mother would often leave 

### withouttelling A.G. where she was going. A.G. testified that she had witnessed violence between her mother and the men in her mother's life. 

### A.G. testified she did see her mother use drugs "[b]utthere were signs," such as 

### "[t]he bong in thebathroom, andsometimes like atowel in thedoor." A.G. said that she did not want to live with her mother and wanted to be adopted. 

### The court admitted the reports submitted by the guardian ad litem/court

### appointed special advocate (CASA). TheCASA recommends thatthecourtterminate Butcher's parental rights toboth A.G. andD.G. Thereports state thatA.G. andD.G.

are "happy and secure" in theirfoster homes. 

### TheCASA report as toD.G. states thatD.G's "motherresides in Florida and is notable toprovide a homefor [D.G.]" Thereportalso states thatButcherhas not communicated with D.G. in one month. As toA.G., the CASA reportstates that A.G.'s "mother resides out ofstate and is not able to provide a home for [A.G.]," and that 

### A.G.'s fosterfamily wishes toadopt her. The reports state thatwhilethechildren areinNo. 71000-1 (Consol. with No. 71001-0-l)/8 

### different homes, the caregivers communicate regularly, and the children see each other "at least once every two weeks" and speak to each other "frequently." The court entered an orderterminating Butcher's parental rights to A.G. and D.G. 

### The order contains detailed findings of fact and conclusions oflaw.4 The courtfound that termination of Butcher's parental rights was inthe best interests of A.G. and D.G. and that Butcherwas unfit to parent the children. Butcher appeals.
ANALYSIS Butcher contends she is entitled to reversal ofthe termination orders because her attorney provided ineffective assistance of counsel by introducing into evidence the Psychological/Parenting Evaluation. Inorder to terminate parental rights, the six statutory elements setforth in RCW 

### 13.34.180(1) must be established by clear, cogent, and convincing evidence. RCW 13.34.190(1 )(a)u): In re Dependency of K.R.. 128Wn.2d 129, 140-41, 904 P.2d 1132 

### (1995).5 Proofofthe six statutory elements establishes thatthe parents are currently

4Butcherdoes notchallenge the findings of fact. Therefore, they are verities on appeal. In re Marriage of Possinaer. 105 Wn. App. 326, 338, 19 P.3d 1109 (2001). 5RCW 13.34.180(1) provides, inpertinent part: (a) Thatthe child has been found to be a dependent child; (b) That the court has entered a dispositional order pursuantto RCW 13.34.130; (c) That the childhas been removed orwill, at the time of the hearing, have been removed from the custody of the parentfor a period of at least six months pursuant to a finding of dependency; (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and allnecessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; (e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the nearfuture. Aparent's failure to substantially improve parental deficiencieswithin twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions willbe remedied so that the child can be returned to the parent in the near future.

. . . (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. 8

### No. 71000-1 (Consol. with No. 71001-0-l)/9 

### unfit and satisfies due process. In re Dependency ofK.N.J.. 171 Wn.2d 568, 576-77, 

### 257 P.3d 522 (2011). IfDSHSestablishes the statutory elements ofRCW 13.34.180(1) by clear, cogent, and convincing evidence, the court then considers whethertermination ofthe parent-child relationship is inthe best interests ofthe child. RCW 

### 13.34.190(1)(b). Whethertermination is in the best interests of the child must be proved by a preponderance ofthe evidence. Inre Welfare ofAschauer, 93 Wn.2d 689, 695, 

### 611 P.2d 1245 (1980). Where the needs of the child and the rights of the parent conflict, the needs of the child must prevail. In re Dependency ofJ.W.. 90 Wn. App. 417, 427, 953P.2d 104(1998). 

### Parents have a statutory right to representation by counsel at all stages of a dependency proceeding. RCW 13.34.090(2); In re Dependency ofV.R.R.. 134 Wn. App. 573, 581, 141 P.3d 85 (2006). This right includes the right to effective legal representation. V.R.R., 134 Wn. App. at 580. To prevail on her claim of ineffective assistance of counsel, Butcher must show (1) deficient performance by counsel and (2) resulting prejudice. In re Dependency of S.M.H.. 128 Wn. App. 45, 61, 115 P.3d 990: Strickland v. Washington. 466 U.S. 668. 

### 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).6 There is a strong presumption ofeffective representation ofcounsel, and Butcher has the burden to show that based on the record, there are no legitimate strategic or

6The parties assert thatWashington law is unsettled as to the standard that applies in determining whether a parent received effective assistance ofcounsel in a termination proceeding. See In re Welfare ofJ.M.. 130 Wn. App. 912, 920, 125 P.3d 245 (2005) (applying standard from In re Moseley. 34 Wn. App. 179, 184, 660 P.2d 315 (1983)). However, because this court applied the Strickland standard to determine ineffective assistance of counsel in termination cases in S.M.H., we adhere to that approach. S.M.H., 128 Wn. App. at 61. We also note that this approach is not inconsistent with the decision in In re Dependency of G.A.R.. 137 Wn. App. 1, 150 P.3d 643 (2007). GAR, did not clearly adopt eitherthe Moseley or Strickland standard. G.A.R., 137 Wn. App. at 7.

### No. 71000-1 (Consol. with No. 71001-0-l)/10 tactical reasons forthe challenged conduct. State v. McFarland. 127 Wn.2d 322, 335- 36, 899P.2d 1251 (1995). 

### Judicial scrutiny ofcounsel's performance must be highly 

### deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too 

### easy for a court, examining counsel's defense after ithas proved unsuccessful, to conclude that a particular act or omission of counsel was 

### unreasonable. Cf. Enqle v. Isaac. 456 U.S. 107, 133-134[, 102 S. Ct. 1558, 71 L Ed. 2d 783] (1982). A fair assessment ofattorney 

### performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances ofcounsel's challenged conduct, and to evaluate the conduct from counsel's 

### perspective at the time. Because ofthe difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range ofreasonable professional assistance; that is, the defendant must overcome the presumption that, underthe circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana. [350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83(1955)]. 

### Strickland. 466 U.S. at 689. Ifcounsel's conduct can be characterized as legitimate trial strategy, itcannot provide the basis for a claim of ineffective assistance of counsel. State v. Aho. 137 Wn.2d 736, 745, 975 P.2d 512 (1999). Butcher contends there was no strategic reason to introduce into evidence the Psychological/Parenting Evaluation. The record does not support Butcher's argument. The termination trial brief submitted on behalfof Butcher argues that she could "remedy her parental shortcomings in a period oftime reasonably inthe nearfuture." In support, the briefquotes the conclusion of Dr. Peterson inthe Psychological/Parenting Evaluation that "[sjhould Ms. Butcher seek treatment as recommended, there is a very 

### good chance that she will develop parenting skills not subject to unpredictable disruption within a few months." The briefalso relies on the Psychological/Parenting Evaluation to argue that ifButcher pursued treatment, "she is probably able to provide

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### No. 71000-1 (Consol. with No. 71001-0-l)/11 marginally adequate care" to her teenage children, and that "other solutions short of 

### termination such as guardianship and third party custody" were appropriate. Butcher also cannot show there is a reasonable probabilitythat but foradmission 

### of the Psychological/Parenting Evaluation, the result of the proceeding would have been different. To establish prejudice, the defendant must show "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 

### Strickland. 466 U.S. at 687. Adefendant shows prejudice when there is a reasonable probability that, but forcounsel's errors, the result of the proceeding would have been different. State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996). A "reasonable probability" is a probability sufficient to undermine confidence inthe outcome. Strickland. 466 U.S. at 694. The first three factors under RCW 13.34.180(1), that the children were dependent, that the court entered disposition orders, and that the children had been removed for at least six months, were not indispute. RCW 13.34.180(1)(a)-(c). As to 

### the fourth factor, whether DSHS offered services, Butcher acknowledged Antetomaso offered her services. RCW 13.34.180(1 )(d). The dispute at the termination hearing focused on the fifth and sixth statutory factors, whether conditions would be remedied

so that the children could be returned in the near future, and whether continuation ofthe parent-child relationship diminished the children's prospects for early integration into a stable and permanent home. RCW 13.34.180(1 )(e), (f). Butcher claims trial counsel's decision to introduce the Psychological/Parenting Evaluation resulted in prejudice because the court quoted the report in its written findings. But it is clearfrom the record that the decision to terminate Butcher's parental

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### No. 71000-1 (Consol. with No. 71001-0-l)/12 

### rights relied heavily on the testimony of social workerAntetomaso, the CASA reports, and the testimony of Butcher's two children, A.G. and D.G. Antetomaso testified that termination ofparental rights was inthe best interest of the children based on: The mother's lack ofmotivation to engage in services, to make herself available to her children and to provide for them their basic needs, and to address her domestic violence relationships, her mental health, need for medication management, and to address any drug/alcohol issues. Antetomaso also testified that continuing Butcher's parental rights "would interfere with [the children's] stability, ongoing well-being and ability to have a good childhood." The CASA also recommended that the court terminate Butcher's parental rights Further, both A.G. and D.G. testified they preferred to remain in their current,

more stable placements ratherthan live with their mother. The courtfound A.G. and D.G.'s testimony credible. The oral ruling states, in pertinent part: Ibelieve the testimony of [D.G.] and [A.G.] concerning what they believe to be intheir best interests, and they're correct. They've shown a 

### lot of insight into these proceedings overthe course of time and in their testimony. Iappreciated thatthey attended this trialtoday to show their interest and provide valuable information to the Court. They're remarkable young people. The cases Butcher relies on, In re Welfare ofJ.M.. 130 Wn. App. 912, 125 P.3d 

### 245 (2005), and Inre Dependency ofG.A.R.. 137 Wn. App. 1, 150 P.3d 643 (2007), to argue her attorney provided ineffectiveassistance ofcounsel are distinguishable. In J.M.. the court held that counsel's failure to object to the admission of a damaging 

### expert report prejudiced the parent. JJVL, 130 Wn. App. at 922-23. InJJVL. there was 

### no strategic reason for the failure to object to the admission of the report, and no evidence otherthan the report supported the court's findings. J.M.. 130 Wn. App. at

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### No. 71000-1 (Consol. with No. 71001-0-l)/13 

### 925, 923. In G.A.R.. counseldid notobjectto the admission of expertreports. GAR.. 137Wn. App. at 4. But again, there was no strategic reason forfailing toobject, and the socialworkerwas the only witness totestifyfor the State. G.A.R.. 137Wn. App. at 4-8. Because Butcher cannot establish ineffective assistance of counsel, we affirm. 

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«-«=- WE CONCUR:



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