IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of A.U.N.H. (DOB: 1/2/11) and Z.D.H. (DOB: 1/8/10), Minor children. CAREY ALLEN HAYES, Appellant,

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. No. 69212-7-1 (Consolidated with

No. 69213-5-1) DIVISION ONE

UNPUBLISHED FILED: July 29. 2013 CS>

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### Cox, J. - Carey Hayes appeals the trial court's orderterminating his 

### parental relationship with his son, Z.D.H., and his daughter, A.U.N.H. Hayes 

### argues that the Department of Social and HealthServices (the "Department") failed to prove by clear, cogent, and convincing evidence that it offered him all 

### necessary services reasonably available and capable of correcting his parental deficiencies within the foreseeable future. He also argues that the Department 

### failed to prove that there was little likelihood that his parental deficiencies would be remedied so that his children could be returned to him in the near future. Substantial evidence supports the trial court's findings thatthe Department 

### offered allnecessary services and that there was little likelihood that conditionsNo. 69212-7-1 (Consolidated with No. 69213-5-l)/2
would be remedied in the children's near future. We consequently affirm the termination order. Hayes is the father of Z.D.H., born on January 8, 2010, and ofA.U.N.H., born on January 2, 2011. The children's mother, Tajana Lashea Wallace, is not
a party to this appeal. At the time of his birth, Z.D.H.'s mother was incarcerated. Hayes cared for him for the first few months of his life until Hayes was arrested and incarcerated 

### for violating a domestic violence protection order and for assaulting a police 

### officer during his arrest. Hayes remained incarcerated from May2010 until 

### January 2011. Whileincarcerated, Hayes agreed to an order ofdependency as to Z.D.H., which was entered by the court inAugust 2010. Atthe time ofA.U.N.H.'s birth, Hayes was incarcerated. The trial court 

### found her dependent as to Hayes and her mother inJune 2011. 

### The Department petitioned to terminate Hayes's parental relationshipwith A.U.N.H. and Z.D.H. as well as the children's relationship with their mother on January 4, 2012. The trial court held an extensive fact-finding hearing on the petition to 

### terminate both Hayes's and Wallace's parental rights. Afterthe hearing, the trial 

### courtorally granted the Department's petition fortermination of Hayes's parental 

### rights. Thetrial court then entered written findings offact, conclusions oflaw, and an order granting the petition to terminate the parent-childrelationship as to Hayes.Hayes appeals.No. 69212-7-1 (Consolidated with No. 69213-5-l)/3

SERVICES 

### Hayes argues thatthe Departmentfailed to provide him with allthe necessary services that were capable ofcorrecting his parental deficiencies. We disagree. 

### Parental rights are afundamental liberty interest.1 To terminatethe parent-child relationship, the Department must prove each of six statutory 

## elements ofRCW 13.34.180(1) by clear, cogent, and convincing evidence.2 If the Departmentmeets all six prongs, there is an implicitfinding of parental 

### unfitness.3 TheDepartment must then demonstrateby a preponderance ofthe evidence thattermination isin the best interest of the child.4 Generally, wewill not disturb the findings of the trial court as longas they are supported by substantial evidence.5 

### To satisfy the requirements ofRCW 13.34.180(1), the Department must 

### prove by clear, cogent, and convincing evidence that "the services ordered under RCW13.34.136 have been expressly and understandably offered orprovided 

### and all necessary services, reasonably available, capable ofcorrecting the 1 Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d 599(1982). 2In re Dependency of K.N.J.. 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011).

### 3IcL 4Inre Dependency ofT.R., 108Wn.App. 149, 160-61, 29 P.3d 1275 (2001).5 In re Welfare of Hall. 99 Wn.2d 842, 849, 664 P.2d 1245 (1983) (quoting In re Seqo. 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).No. 69212-7-1 (Consolidated with No. 69213-5-1)74 parental deficiencies within the foreseeable future have been expressly and 

### understandably offered orprovided
. . . ."6 Thus, the statuterequires that the Department must offer the services expressly ordered by the trial court and that the Department provide other necessary services, reasonably available, which 

### would correcttheparental deficiencies.7 An appellate court will affirm a termination order ifthere is substantial evidence that the trial court could reasonably have found to be clear, cogent, and 

### convincing.8 Evidence is clear, cogent, andconvincing when it shows the ultimate fact at issue to be "highly probable."9 Because thefactfinder has the advantage ofobserving the witnesses, deference to the trial court is particularly 

### importantin appellate review ofatermination decision.10 Here, the Department offered all services ordered by the trial court in its 

### dependency orders. Hayes assigns errorto the trialcourt's findings thatthe Department offered all services ordered under RCW 13.34.130, including "domestic violence treatment, random urinalysis testing, parenting classes, drug 

### and alcohol evaluation and apsychological evaluation."11 Butthis finding was 6RCW13.34.180(1)(d). 7In re Dependency ofT.L.G., 126Wn. App. 181, 200, 108 P.3d 156 (2005).

### 8InretheMatterofH.J.P.. 114 Wn.2d 522, 532, 789 P.2d 96 (1990). 9Inre Dependency ofK.R.. 128Wn.2d 129, 141, 904P.2d 1132(1995) (quoting Seqo. 82 Wn.2d at 739). 10 Id at 144. 

### 11 Clerk'sPapers at 279 (Finding of Fact 2.22).No. 69212-7-1 (Consolidated with No. 69213-5-1)75 supported by substantial evidence inthe record. These were the services ordered by the dependency orders as to A.U.N.H. and Z.D.H. Thus, the Department offered Hayes all court ordered services, in compliance with RCW 13.34.180(1)(d). Additionally, these services were allthat were necessary to address 

### Hayes's parental deficiencies withinthe foreseeable future. In the termination order's findings of fact, Hayes's parental deficiencies were connected to domestic violence and his role as an abuser. Thus, the offer ofdomestic violence treatment services by the Departmentwas sufficient to address his 

### parental deficiencies and meet the requirements of RCW 13.34.180(1 )(d). The trial courtfound that Hayes "has been inappropriately hostile or violent withthe social worker, including in front of his children, withfoster care 

## parents, his wife, apolice officer, and the motherof[his] children."12 Though Hayes challenges thisfinding, itwas supported by substantial evidence in the record. In 2010, when Hayes was arrested for violating a domestic violence 

### protection order, he was also charged with assaulting a police officer. Hayes's social worker testified at the termination proceeding that Hayes would grow 

### visibly angry and upset and lash out at herin front ofA.U.N.H. andZ.D.H. "He wentfrom—from using appropriate words to inappropriate words, foul 

### language."13 And during a visitation with his children, their motherarrived and attempted to take Hayes's backpack. In response, he bit her hand. 

### 12 Clerk's Papers at 280 (Finding of Fact 2.28). 

### 13 Report of Proceedings (July 17, 2012) at 341.No. 69212-7-1 (Consolidated with No. 69213-5-l)/6 

### Hayes also did not demonstrate that he could "maintain his aggression or exercise decision-making to the benefit of his children.
.. . The father has not demonstrated that he understands how his behavior affects his children when he 

## is being hostile orobserve theircues in responseto his hostility [sic]."14 These challenged findings were supported by substantial evidence in the record, and reflected parental difficulties thatwould likely have been addressed by domestic violence treatment. Hayes's social worker, the CASAassigned to his case, and 

### Dr. Michael O'Leary, the psychiatrist who conducted a psychological evaluation 

### of Hayes, all testified that they were concerned with Hayes's anger and control issues.15 

### Finally, the trial court found that, "[t]hefather's failure to engage in domestic violence treatment has prevented him from making progress on" 

## articulating "howdomestic violence affects children."16 Italso concludedthat "[t]hefather has delayed engagement in the critical servicefor domestic violence and continues to displaycognitive concerns as identified byDr. O'Learythat 

### place the children atrisk."17 These challenged findings ofHayes's parental deficiencies are linked to the domestic violence treatment services and are


### 14 Clerk's Papers at 281 (Finding offact2.31). 15 Report of Proceedings (July 16, 2012) at 186-87 ("It's the atmosphere that's created when the kids are there thatthere's the anger around them "); 

### Report ofProceedings (July 17, 2012) at 127-31; Report ofProceedings (July 19, 2012) at 565, 574 

### 16 Clerk'sPapers at 281 (Finding of Fact 2.36). 17 Clerk's Papers at 282 (Finding of Fact 2.39).No. 69212-7-1 (Consolidated with No. 69213-5-1)77 supported by substantial evidence inthe record. When Hayes testified at the termination proceeding, he did note that the treatment helped him "try to think 

### before Ireact. . . ,"18 But Hayes was still unable tosatisfactorily explain how his violent and aggressive behavior affected his children. More importantly, as noted above, he continued to exhibit this behavior. Hayes argues that the Department should have offered him mental health counseling. He contends that, though this was not a service ordered by the dependency court, itwas reasonably available and capable of correcting his parental deficiencies. But the domestic violence treatment referral was a service offered by the Department, targeted at addressing Hayes's parental deficiencies: his aggression, violence, and control issues. Further, Hayes is unable to demonstrate how mental health services would have better addressed his anger and control issues. He notes that Dr. 

### O'Leary opined that he "suffered from adjustment disorderwith mixed disturbance ofemotions and conduct as well as mixed personality disorder." But 

### Hayes fails to note that Dr. O'Leary recommended domestic violence treatment, not mental health services in his report. Thus, after examining Hayes, Dr. 

### O'Leary felt that this treatment wouldsufficiently address Hayes's parental deficiencies. 

### Hayes argues that his social worker was aware of his mental health 

### problems and was thus required to ordermental health services that would have addressed his "anger and hostility.
. . ." But the social worker's alleged

18 Report ofProceedings (July 16, 2012) at 80.No. 69212-7-1 (Consolidated with No. 69213-5-l)/8

awareness of his mental health problems did not require the ordering of such services in view of Dr. O'Leary's recommendations. He believed that these difficulties could be addressed by domestic violence treatment services. In view ofthis record, it is unclearwhy more was required in this case. 

### Hayes contends thathis caseis akin toIn re Dependency ofT.L.G..19 where this court held that the Department had failed to offer the parents all 

### necessary services. But inT.L.G.. the Department was aware thatthe father's bipolar disorder and mother's depression were "the issue[s]" that resulted in 

### termination oftheparents' relationship with child.20 And yet, theDepartmentdid not offer any mental health services to address these illnesses, about which they knew.21 Thus, this court held that the reasonable services necessary to correct 

## the parents' deficiencies were notoffered bythe Department.22 Here, incontrast, all mental health deficiencies raised by Hayes in his 

### appeal relate to anger and aggression, difficulties thatwould have been addressed by the domestic violence treatment program to which the Department offered referrals. Thus, the Departmentdid notfail to address Hayes's mental health deficiencies but, instead, offered services that were likely to targetthe 

### particularmental healthdifficulties with which Hayes struggled.

19126Wn. App. 181, 108 P.3d 156(2005). 20 IdL at 199. 

### 21 jd at 199-200. 22 Id.

8No. 69212-7-1 (Consolidated with No. 69213-5-l)/9 Hayes also argues thatthe Departmentwas required to offer him 

### employment services because it "knew that employment had been an issue for himthroughout the dependency process and he had very limited financial 

### resources."23 This was not a servicerequired bythe dependency order, nor was it a service that would have corrected his parental deficiencies. 

### It is true that Hayes struggled to find employment. As the trial court 

### recognized, these financial difficulties may have limited his ability to enroll in domestic violence treatment because the Department refused to pay for these services. The trial court did note its concern "aboutthe Department's policy of 

### not paying for a portion of domestic violencebatterers' treatment even where 

### such treatment is recommended and may beunaffordable."24 Butitwenton to findthat "the father was able to access a very lowcost program ... and still 

### failed toattend regularly."25 Thetrial courtalsonoted that, "[t]hefather provided noexplanation forwhy afterpaying for a month, hewould not attend the entire month."26 These challengedfindings of fact were supported by substantial evidence in the record. As Hayes's treatment provider, BlakeJohnson, noted, 

### Hayes paid $50.00 amonth to go toweeklytreatment, buthe wasonly attending classes once a month. This evidence, in addition to Johnson's testimony that 

### Hayes only attended six classes during his time with theprogram, supports the 23 Appellant's Opening Briefat 17. 24 Clerk's Papers at 279 (Finding of Fact 2.22). 

### 25 ]o\ at 280. 26jd, (Finding of Fact2.26).No. 69212-7-1 (Consolidated with No. 69213-5-l)/10 findings offact that he simply failed to comply with the domestic violence
treatment service. Given that Hayes's failure to attend domestic violence treatment was not entirely related to his financial situation, employment services were not services that could have addressed his core parental deficiencies. Finally, Hayes argues that the Department was required to provide services to allow him to maintain a "safe, stable living environment" for his children. We disagree. The dependency order as to Z.D.H. required Hayes to "establish and maintain a safe, stable, livingenvironment suitable for the child." But the dependency court ordered no services associated with this requirement. Nor did the trial court rely on Hayes's housing instability in its finding ofparental deficiencies at the termination hearing. Thus, housing services would not have addressed any core parental deficiencies ifthe Department had offered them to 

### Hayes. Consequently, they were not services that needed to be provided to Hayes under RCW 13.34.180(1 )(d). 

### Hayes argues thatthe burden of offering or providingthe needed services is on the State. We agree. But we also conclude that the State did so in this
case. It had no burden to provide the additional services on which Hayes relies in this appeal. 

### Hayes also argues in his reply briefthat we must disregard the 

### Department's references to facts established onlyin the dependency orders. We agree. And we have not done so.

10No. 69212-7-1 (Consolidated with No. 69213-5-1)711

PARENTAL DEFICIENCIES REMEDIED IN NEAR FUTURE Hayes argues thatthe trial court erred inconcluding that there was little likelihood conditions would be remedied so that his children could be returned to him within the nearfuture. Because substantial evidence supported the court's finding, we disagree. RCW 13.34.180(1 )(e) requires the Department prove that "there is little likelihood that conditions will be remedied so that the child can be returned to the 

### parent in the nearfuture." The focus of this element is whether a parent has 

### corrected his or herparental deficiencies.27 "Adetermination ofwhatconstitutes the nearfuture depends on the age ofthe child and the circumstances ofthe 

### placement."28 Thus, "[a] matterofmonths for young children isnotwithin the foreseeable future to determine ifthere is sufficient time for a parentto remedy 

### his or herparental deficiency."29 As noted above, Hayes's parental deficiencies centered on his past domestic violence and the anger and control issues connected with this violence. There was substantial evidence inthe trial record to support the conclusion that these issues would not have been remedied within the foreseeable future. By 

### the time oftrial, Hayes had completed only sixdomestic violence treatment 

### classes. Though services were ordered in June 2011, Hayes did not begin
27 In re Dependency ofT.R.. 108 Wn. App. at 165. 

### 28 T.L.G.. 126Wn.App. at 204. 29 In re Dependency ofM.R.H.. 145 Wn. App. 10, 28, 188 P.3d 510 (2008).

11No. 69212-7-1 (Consolidated with No. 69213-5-1)712 attending classes untilthe spring of2012. Even when he began attending classes, his attendance was sporadic, despite the fact that his treatment provider testified that he told Hayes to come every week. Hayes attended a class in April 2012, two in May 2012, and two in July 2012. While Hayes and his treatment providertestified that the domestic violence treatment was helping Hayes to understand the effects ofviolence, there was insufficient proofthat this progress would occur within his young children's near future. During the fact-finding hearing, Dr. O'Leary was asked whether "five group sessions [would] constitute compliance" with the treatment 

### he wasseeking for Hayes."30 He replied, "No. Five sessionswould probably be justthebeginning.'TM Additionally, theCASA andsocial worker assigned to

Hayes's case testified thatthey believed that he continued to demonstrate he is unable to deal with his anger in a way that is not destructive to his children's lives. 

### Further, Hayes's demonstrated his anger and inability to control his 

### responses to others during the dependency period. As noted above, he bit his children's mother during a visitation in October 2011. He also raised his voice and became visiblyenraged when speaking to his social worker. These 

### incidents, combined withHayes's failure to follow-through with the domestic violence treatment until four months before the termination hearing, support the



### 30 Report of Proceedings (July 19, 2012) at 611. 

### 31 Id. (emphasis added).

12No. 69212-7-1 (Consolidated with No. 69213-5-1)713
trial court's conclusion that Hayes's parental deficiencies could not be remedied in the near future. Hayes argues that he was progressing in domestic violence treatment and notes that his treatment providertestified that he had markedly improved "even though he had only attended six classes." Indeed, the trial court acknowledged this progress in its findings of fact, noting that, "[t]hefather is reportedly doing the 

### best that he can indomestic violence treatment."32 Butthe court then went on to 

### find "thatis notenough to alleviatetherisks ofhis long history ofviolence
. . . ."33 Hayes's failure to begin domestic violence treatment until four months before the termination hearing, combined with his continued aggression, provided sufficient evidence for the court to conclude that his deficiencies would not be remedied within the children's near future. 

### Additionally, Hayes argues that he did not begin services until April at 

### least in partbecause of the Department'sfailure to pay for his domesticviolence treatment services. But, as noted above, Hayes's treatment provider testified 

### that,though he paid for weekly classes, he only attended once ortwice a month even when he started attending treatment. Further, Hayes told his social worker 

### and Dr. O'Learythat he did not believe treatment was necessary. This statement indicated that his resistance to treatment was an importantfactor in his delay in seeking services.



### 32 Clerk's Papers at 280 (Finding of Fact 2.27). 33 Id.

13

### No. 69212-7-1 (Consolidated with No. 69213-5-1)714 

### Hayes also contends that the court's conclusions ignored the services in 

### which he had participated. ButHayes's completion of the urinalysis testing and parenting classes did not address the largest deficiency in his parenting: his anger and lack of control. Thus, they are not relevant to the question ofwhether he could remedy these deficiencies within the nearfuture. Finally, Hayes argues that the trial court's ruling ignores his abilities as a parent. In its oral ruling, the trial court did note that Hayes was affectionate with his children, and thatthey had affection for him. In its findings of fact, the trial court also noted that Hayes "generally engaged invisitation." But Hayes's lack of affection and failure to engage invisitation were not the basis of his parental deficiencies. Thus, this argument fails to address the parental deficiencies on which termination was based. We affirm the termination of Hayes's parental rights to A.U.N.H. and Z.D.H. 

# ^7XtJ

WE CONCUR:

Tt

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