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UNPUBLISHED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

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Cox, J. - Carey Hayes appeals the trial court's order terminating his

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

argues that the Department of Social and Health Services (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 that the Department

offered all necessary services and that there was little likelihood that conditions
No. 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 of A.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 May 2010 until

January 2011. While incarcerated, Hayes agreed to an order of dependency as

to Z.D.H., which was entered by the court in August 2010.

At the time of A.U.N.H.'s birth, Hayes was incarcerated. The trial court

found her dependent as to Hayes and her mother in June 2011.

The Department petitioned to terminate Hayes's parental relationship with

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. After the hearing, the trial

court orally granted the Department's petition fortermination of Hayes's parental

rights. The trial court then entered written findings offact, conclusions of law,

and an order granting the petition to terminate the parent-child relationship as to

Hayes.

Hayes appeals.
No. 69212-7-1 (Consolidated with No. 69213-5-l)/3

SERVICES

Hayes argues that the Department failed to provide him with all the

necessary services that were capable of correcting his parental deficiencies. We

disagree.

Parental rights are a fundamental liberty interest.1 To terminate the

parent-child relationship, the Department must prove each of six statutory

elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence.2 If

the Department meets all six prongs, there is an implicit finding of parental

unfitness.3 The Department must then demonstrate by a preponderance ofthe

evidence that termination is in the best interest of the child.4 Generally, we will

not disturb the findings of the trial court as long as they are supported by

substantial evidence.5

To satisfy the requirements of RCW 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 or provided

and all necessary services, reasonably available, capable of correcting the

1 Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d

599(1982).

2 In re Dependency of K.N.J.. 171 Wn.2d 568, 576-77, 257 P.3d 522

(2011).

3IcL

4 In re Dependency of T.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 or provided . . . ."6 Thus, the statute requires 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 correct the parental 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, and convincing when it shows the

ultimate fact at issue to be "highly probable."9 Because the fact finder has the

advantage of observing the witnesses, deference to the trial court is particularly

important in appellate review ofa termination decision.10

Here, the Department offered all services ordered by the trial court in its

dependency orders. Hayes assigns error to the trial court's findings that the

Department offered all services ordered under RCW 13.34.130, including

"domestic violence treatment, random urinalysis testing, parenting classes, drug

and alcohol evaluation and a psychological evaluation."11 But this finding was

6RCW13.34.180(1)(d).

7In re Dependency ofT.L.G., 126 Wn. App. 181, 200, 108 P.3d 156

(2005).

8 In retheMatterofH.J.P.. 114 Wn.2d 522, 532, 789 P.2d 96 (1990).

9 In re Dependency of K.R.. 128Wn.2d 129, 141, 904P.2d 1132(1995)

(quoting Seqo. 82 Wn.2d at 739).

10 Id at 144.

11 Clerk's Papers at 279 (Finding of Fact 2.22).
No. 69212-7-1 (Consolidated with No. 69213-5-1)75

supported by substantial evidence in the 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 all that were necessary to address

Hayes's parental deficiencies within the 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 of domestic

violence treatment services by the Department was sufficient to address his

parental deficiencies and meet the requirements of RCW 13.34.180(1 )(d).

The trial court found that Hayes "has been inappropriately hostile or

violent with the social worker, including in front of his children, with foster care

parents, his wife, a police officer, and the mother of [his] children."12 Though

Hayes challenges this finding, 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 her in front ofA.U.N.H. and Z.D.H. "He

went from—from using appropriate words to inappropriate words, foul

language."13 And during a visitation with his children, their mother arrived 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 or observe their cues in response to his hostility [sic]."14 These

challenged findings were supported by substantial evidence in the record, and

reflected parental difficulties that would likely have been addressed by domestic

violence treatment. Hayes's social worker, the CASA assigned 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]he father's failure to engage in

domestic violence treatment has prevented him from making progress on"

articulating "how domestic violence affects children."16 It also concluded that

"[t]he father has delayed engagement in the critical service for domestic violence

and continues to display cognitive concerns as identified by Dr. O'Learythat

place the children at risk."17 These challenged findings of Hayes's parental

deficiencies are linked to the domestic violence treatment services and are

14 Clerk's Papers at 281 (Finding offact 2.31).

15 Report of Proceedings (July 16, 2012) at 186-87 ("It's the atmosphere

that's created when the kids are there that there's the anger around them ");

Report of Proceedings (July 17, 2012) at 127-31; Report of Proceedings (July 19,

2012) at 565, 574

16 Clerk's Papers 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 in the 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 to satisfactorily 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, it was 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 disorder with mixed

disturbance of emotions 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 would sufficiently address Hayes's parental

deficiencies.

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

problems and was thus required to order mental health services that would have

addressed his "anger and hostility. . . ." But the social worker's alleged

18 Report of Proceedings (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 of this record, it is unclear why more was required in this case.

Hayes contends that his case is akin to In re Dependency of T.L.G..19

where this court held that the Department had failed to offer the parents all

necessary services. But in T.L.G.. the Department was aware that the father's

bipolar disorder and mother's depression were "the issue[s]" that resulted in

termination of the parents' relationship with child.20 And yet, the Department did

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 not offered by the Department.22

Here, in contrast, all mental health deficiencies raised by Hayes in his

appeal relate to anger and aggression, difficulties that would have been

addressed by the domestic violence treatment program to which the Department

offered referrals. Thus, the Department did not fail to address Hayes's mental

health deficiencies but, instead, offered services that were likely to target the

particular mental health difficulties with which Hayes struggled.

19126Wn. App. 181, 108 P.3d 156(2005).

20 IdL at 199.

21 jd at 199-200.

22 Id.

8
No. 69212-7-1 (Consolidated with No. 69213-5-l)/9

Hayes also argues that the Department was required to offer him

employment services because it "knew that employment had been an issue for

him throughout the dependency process and he had very limited financial

resources."23 This was not a service required 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 "about the Department's policy of

not paying for a portion of domestic violence batterers' treatment even where

such treatment is recommended and may be unaffordable."24 But it went on to

find that "the father was able to access a very low cost program ... and still

failed to attend regularly."25 The trial court also noted that, "[t]he father provided

no explanation for why after paying for a month, he would not attend the entire

month."26 These challenged findings of fact were supported by substantial

evidence in the record. As Hayes's treatment provider, Blake Johnson, noted,

Hayes paid $50.00 a month to go toweekly treatment, but he was only attending

classes once a month. This evidence, in addition to Johnson's testimony that

Hayes only attended six classes during his time with the program, supports the

23 Appellant's Opening Brief at 17.

24 Clerk's Papers at 279 (Finding of Fact 2.22).

25 ]o\ at 280.

26 jd, (Finding of Fact 2.26).
No. 69212-7-1 (Consolidated with No. 69213-5-l)/10

findings of fact 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, living environment 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 of parental

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 that the burden of offering or providing the 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 brief that we must disregard the

Department's references to facts established only in the dependency orders. We

agree. And we have not done so.

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

PARENTAL DEFICIENCIES REMEDIED IN NEAR FUTURE

Hayes argues that the trial court erred in concluding that there was little

likelihood conditions would be remedied so that his children could be returned to

him within the near future. 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 near future." The focus of this element is whether a parent has

corrected his or her parental deficiencies.27 "A determination ofwhat constitutes

the near future depends on the age of the child and the circumstances of the

placement."28 Thus, "[a] matter ofmonths for young children is not within the

foreseeable future to determine ifthere is sufficient time for a parent to remedy

his or her parental 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 in the trial record to support the conclusion that

these issues would not have been remedied within the foreseeable future. By

the time of trial, Hayes had completed only six domestic violence treatment

classes. Though services were ordered in June 2011, Hayes did not begin

27 In re Dependency of T.R.. 108 Wn. App. at 165.

28 T.L.G.. 126 Wn. App. at 204.

29 In re Dependency of M.R.H.. 145 Wn. App. 10, 28, 188 P.3d 510

(2008).

11
No. 69212-7-1 (Consolidated with No. 69213-5-1)712

attending classes until the spring of 2012. 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 provider testified that the domestic

violence treatment was helping Hayes to understand the effects of violence,

there was insufficient proof that 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 sessions would probably be

just the beginning.'TM Additionally, the CASA and social worker assigned to

Hayes's case testified that they 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 visibly enraged when speaking to his social worker. These

incidents, combined with Hayes'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).

12
No. 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 provider testified 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]he father is reportedly doing the

best that he can in domestic violence treatment."32 But the court then went on to

find "that is not enough to alleviate the risks of his long history of violence . . . ."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 part because of the Department's failure to pay for his domestic violence

treatment services. But, as noted above, Hayes's treatment provider testified

that, though he paid for weekly classes, he only attended once or twice 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 important factor 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. But Hayes'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 of whether

he could remedy these deficiencies within the near future.

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 that they had affection for him. In its findings of fact, the trial

court also noted that Hayes "generally engaged in visitation." But Hayes's lack of

affection and failure to engage in visitation 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

14