### FILED OCT. 15,2013 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III

IN THECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE ) IN RE: D.R. ) No. 30298-9-III ) ) ) ) ) UNPUBLISHED OPINION ) ) ) KORSMO, C.J.

- Ms. B.R. completed "all necessary services, reasonably available, capable ofcorrectingtheparental deficiencies withinthe foreseeable future." Despite completing all necessary services, the trial courtterminatedB.R.'sparentalrights becausethese services didnotremedy all ofherparental deficiencies. Becausethe outstanding deficiencies identifiedbythe trial courtwerenotconnectedto herabilityto parent, wereverse. FACTS B.R. gave birthto a son, D.R., onDecember 10,2006. Justbefore D.R.'s second birthday, DepartmentofSocial andHealth Services (DSHS) removedhim from B.R.'s

### No. 30298-9-111 In re: D.R.
carel and initiated a dependency proceeding after a neighbor reported seeing the child's uncle2 dangle him by the leg over a second story balcony. The incidenthappened while B.R. was in the kitchen cooking and asked the uncle to hold D.R. so he would stop crying. When B.R. sawthe uncle holding her son overthe balcony, she ran over, grabbed D.R., and severely scolded the uncle. Despite the uncle's egregious conduct, and despite an agreement with DSHS to
remove the uncle, B.R. did not ask him to move out. The uncle did move out for a time, but B.R. let him return not long after he moved out. B.R. explained that she did not force the uncle outbecause she did not believe that he posed an ongoing risk to D.R. However, B.R. testified at trial that she had come to recognize through the services provided by DSHS that she could nevertrust the uncle again after that incident and that her inability to trust the uncle meant that she should have made him leave her home regardless ofthe lack ofany ongoing risk ofharm. The situation resolved itselfduring the dependency when the uncle moved out and B.R. cut offall contact with him. As part ofthe conditions ofthe dependency, the trial court ordered B.R. to complete apsychological evaluation, a parenting class, a domestic violence victim

1The father did not live in the home with D.R., had little contact with his son prior to and during the dependency, and did not comply with services needed to maintain his parental rights. 2 The uncle is the brother ofMs. B.R.'s eldest child's father, and not actually related by blood or marriage to Ms. B.R. or D.R. 2No. 30298-9-111 

### In re: D.R.
assessment, a parenting assessment, and maintain regular visitation with D.R. Duringthe parenting assessment, the assessor made the additional recommendation that B.R. complete 26 individual counseling sessions. Overthe course ofthe next year, B.R. completed 25 counseling sessions. Atthe end ofthat25th session B.R. and her counselormade the mutual decision to end treatmentbecause ofB.R.'s significant progress. The counselor found that B.R. made progress on all issues presented for treatment and "[thought] it was quite successful." Report ofProceedings (RP) at 72. B.R. was also successful in her other court-ordered services. Ann Crain, who took B.R. through the Project Safe Care parentingprogram, testifiedthatB.R. and her sonhad
a great connection with each other. Ms. Crain also testifiedthatB.R. was the secondhighest scoringperson she had seen complete Project Safe Care. SusanMelton, B.R.'s visitation supervisor, also testified to the great bond that D.R. shared with his mother. Shetestified that he really looked forward to seeinghis mother, was excited every time he saw her, and thatthere was "avery strong bondthere." RP at 345. Despitethis success, the trial court found that B.R. stilI remained unfit because: 2.14.1 The mother is currently unfit to parentthis child because she continues to minimize the dangerous behavior ofthe uncle that was the reason that brought the child into foster care. 2.14.2 Eventhoughthe mother has complied with all services ordered by the court, her attitude and behavior have not changed sufficiently for the childtobe placed with her. 3No.30298-9-III In re: D.R.

2.14.3 The mother continues to behave in a hostile and belligerent manner toward the Department and service providers. 2.14.4 Two psychologists diagnosed the mother as having a personality disorder, a diagnosis that is consistent with her behavior and that is not likely to change in response to services. Clerk's Papers (CP) at 40 (Finding ofFact 2.14). The noted psychologists were Dr. Roberto Valdez, who performed B.R.'s parenting assessment, and Dr. Paul Wert, who performed herpsychological evaluation. They found that B.R. suffered from an Axis II severe personality disorder, not-otherwisespecified. The disorder manifested itselfin particular with the way that B.R. interacted with DSHS staff. The personality disorder and B.R.'sbad attitude in tum caused these providers to conclude in their written reports thatB.R. was not likely to succeed in all of her court-ordered services, which in tum made reunification within the near future unlikely. However, when informed at trial that B.R. had successfully completed the assigned services, both experts changedtheir opinions concerning her amenability to 3 treatment. ANALYSIS Ms. B.R. presents four arguments for reversing the termination ofher parental rights. She argues that the record contains insufficient evidence to support the findings

3 RP at 298-99,319,390-94,401-03,412. 4No.30298-9-III In re: D.R. required by RCW 13.34.180(1)(d), (e), (t), and RCW 13.34.190(1)(b). Because the absence ofany ofthese elements is dispositive, we address the merits ofonly one of them: RCW 13.34. 180(1)(e). In order to terminate the parent-child relationship, one ofthe factors the State must prove by clear, cogent, and convincing evidence is that "there is little likelihood that conditions will be remedied so that the child can be returned to the parent inthe near future." RCW 13.34. 180(1)(e). The finding offact "mustbe upheld ifsupported by substantial evidence from which a rational trier offact could find the necessary facts by clear, cogent, and convincing evidence." In re MR.H., 145 Wn. App. 10,24, 188 P.3d 510 (2008). Because the record does not contain clear, cogent, and convincing evidence linking the conditions identified in Finding ofFact 2.14 to Ms. B.R.'s ability to parent,
we reverse. We address each ofthe conditions identified in this finding offact in tum. The first condition identified by the trial court was: "The mother is currently unfit to parentthis child because she continues to minimize the dangerous behavior ofthe uncle that was the reason thatbroughtthe child into foster care." CP at 40. We do not believe that a one-time mistake by a nonparent, who DSHS did not deem dangerous enough to investigate, can supportthe termination ofa mother's constitutional rightto raise herchild. There are cases where parents' rights to their children can be terminated because ofthe parent's failure to recognize and mitigate the riskposed by a nonparentrelative, but this is not one ofthose cases. 

### 5No. 30298-9-111 In re: D.R. Instead, DSHS failed to introduce any evidence that the uncle presented an ongoing risk to D.R. that needed to be abated. In the cases where termination was supported by substantial evidence, the record contained evidence that the nonparent relative had a history ofunresolved abusive tendencies. In 

### S.MH., a mother lost her rights in partbecause she refused to cut offcontact with her boyfriend-an admitted fourtime child molester-andbecause the mother repeatedly stated her intentions to have the boyfriend move back into the home once a restraining order was lifted. In re Dependency 

### o/S.MN, 128 Wn. App. 45, 50, 57, 115 P.3d 990 (2005). In L.NB.-L., a mother lost her rights because she would not leave the father who had multiple domestic violence convictions, which also included assaults against the mother. In re Welfare 

## 0/ L.NB.-L., 157 Wn. App. 215, 229, 237 P.3d 944 (2010). Here, the record establishes nothing about the uncle's dangerousness outside of this one-time incident. While this incidentjustified the filing ofthe emergency shelter
care order and initiation ofthe dependency, it alone was not sufficienttojustify termination ofB.R.'sparental rights. To terminate those rights, DSHS had an affirmative duty to show that the uncle presented an ongoing risk ofharm to the child; simple fear of the unknown cannot support that burden. Accepting as true the finding thatB.R. failed to recognize or acknowledge the dangerposed by the uncle, we cannot hold that against her because the record does not contain any evidence that there was a current danger that she needed to acknowledge. 6No. 30298-9-111 

### In re: D.R.
This case is also unlike 

### S.MH and

### L.NB.-L. because the condition in this case had abated priorto the termination proceedings. RCW 13.34.180(1)(e) requires thatthe condition cannotbe remedied so that the child canbe returned in the near future. In 

### S.MH and

### L.NB.-L. the condition could not be remedied because the mothers in those
cases refused to cut offcontactwith the dangerous person in their lives. Here, the uncle moved out and B.R. cut offall contact with him with no intention ofhaving any contact with him again. Accordingly, any dangerous condition createdby the uncle had been remedied. The second and third conditions identified by the trial court are tied together. The second condition stated: "Eventhoughthe motherhas complied with all services ordered by the court, her attitude and behaviorhave not changed sufficiently for the child to be placed with her." CP at 40. The third condition stated: "The mother continues to behave in a hostile and belligerent manner toward the Department and service providers." 

### Id. Recognizing that B.R.'s attitude and distrust ofDSHS are notproperbases for termination, DSHS argues that the trial court did not actually take those into account in making its decision. Resp't Br. at 29. While the trial court's oral ruling stated that B.R.'s attitude and hostility were not bases for its decision, the written findings state otherwise. Because no one tied these findings to B.R.'s ability toparent or to succeed in services, they fail to supporttermination. 

### In re Dependency ofT.L.G., 126 Wn. App. 181,204-05, 108 P.3d 156 (2005) (reversing termination because DSHS failed to connectparents' 7No.30298-9-III In re: D.R.
mental health problems and need for 3 to 5 years ofintensive psychotherapyto their ability to parent). While B.R. had a duty to comply with all ordered services, no statute
orrule required her do so with a smile on her face. The final condition identifiedby the trial court was: "Twopsychologists diagnosed the mother as having a personality disorder, a diagnosis that is consistent with her behavior and that is not likely to change in response to services." CP at 40. Acceptingthis finding as true, it too fails to supportthe trial court's orderterminating parental rights. "[M]ental illness is not, in and ofitself, proofthat a parent is unfit or incapable." T.L.G., 126 Wn. App. at 203. "Thecourtmust examine the relationship between the mental condition and parenting ability." 

### Id. Here, the mental health professionals testified that B.R.'spersonality disorder made it unlikely that she would succeed in services. They did not find that this personality disorder in and ofitselfputn.R. at risk
or made B.R inattentive to n.R.'s needs. While we do not doubt that B.R.'spersonality disorder made her a difficult client, the uncontroverted testimony ofher treatment providers shows that she was able to overcome this illness and succeed in all ofher classes and counseling. Because the conditions identified in support ofthe finding required underRCW 13.34.180(1)(e) were not tied toB.R's ability to parent or any risk ofharm to the child, the evidence did not supportthejudgment.

8No. 30298-9-111 

### In re: DR.
B.R. is undoubtedly a difficult person to counsel and her difficulties may yet prevent her from reuniting with D.R. Nonetheless, there needs to be evidence connecting her deficiencies to her ability to parent her child. Reversed andremanded for further proceedings. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Korsmo, C.J. WE CONCUR:
Kulik, J.**~i**

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