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IN THE SUPREME COURT OF THE STATE OF WASHINGTON ) In the Matter ofthe Parental Rights to ) ) K.M.M. ) ) )**~~~~~--~~~~~)** No. 91757-4 EnBanc Filed

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### _20_16~- Yu, J.-This case requires us to determine whether parental rights may be terminated where a father is unable to parenthis child due to a lack ofattachment and continuing the parent-childrelationship will be detrimental to the child's emotional development andmental well-being. The child has been in foster care since she was six and a halfyears old. She

was removed from herbiological parents' custody in 2009 becausetheir serious substance abuse problems resulted in a neglectful home enviromnent. She was 11 years old atthe time oftrial in 2013 and will be 14 years oldthis comingAugust. She has been in two foster care placemtmts and was physically abused in one of those placements. Itis undisputed that the father completed court-ordered services and remedied the deficiencies identified by the dependency court inpriorproceedings.

### In re ParentalRights to K.MM, No. 91757-4 Nevertheless, the trial court terminated his parental rights based on its conclusion that he remains "unableto parent" due to the child's lack ofattachment to him. Clerk's Papers (CP) at 112. There is substantial evidence to support the trial court's conclusion that all necessary services have been provided to the father and that the provision ofany additional services would be futile. Furthermore, the record supports the trial court's finding ofcurrent parental unfitness based on the father's inability to parent the child. Consequently, we affirm the Court ofAppeals decision to uphold the termination order. FACTUAL& PROCEDURAL HISTORY A. DEPENDENCY The child, K.M.M., was born on August 8, 2002. She will be 14 years old as ofAugust 2016 and has been in foster care for six and ahalfyears-almosthalfof her life. Since May 2012, K.M.M. has refused to have contact with her father, J.M. (the appellant in this case), and her mother, D.C. (who is not aparty on appeal). K.M.M. has expressed her desire to be adoptedby her foster parents, whom she refers to as "mommy" and "daddy." 2 Verbatim Report ofProceedings (VRP) at 282, 303. K.M.M. and heryounger sister K.M. were removed from theirparents' custody in February 2009, following an emergency room visit where it was



### 2

### In re ParentalRights to K.MM, No. 91757-4 suspected that K.M. had beenphysically abused by J.M. CP at 106, 123. The hospital staffalso had concerns thatthe parents were misusing prescription opiates. !d. at 58. Theparents' substance abuse problems created a neglectful home environment. !d. at 106. K.M.M. testifiedthat she had to "take care of[her] sister and pretty much change her diaper." 2 VRP at 283. Although ultimately no allegations ofabuse were confirmed, D.C. and J.M. agreed to dependency for their daughters onthe grounds that neither ofthem was able to care for the children due to their substance abuse problems. CP at 58; RCW 13.34.030(6)(c). K.M.M.'s early dependency was marked by instability. The original permanencyplan was for K.M.M. and her sister to return to their parents' custody just a few months later. 4 VRP at 653. However, both parents relapsed and went into inpatienttreatment, so the children hadto remain in foster care. !d. K.M.M.'s first foster placement was an abusive one. Itwas discovered later that the foster mother spanked K.M.M. with a wooden spoonto punish her for things like running late for school. 2 VRP at 201-02, 290. K.M.M. and her sister

were removed from the foster home in July 2009 after the foster mother was hospitalized for a "mental breakdown." CP at 59. They were then placed with K.M.M.'s current foster parents. When K.M.M. was first placed with her foster parents, she was "emotionally disconnected," and "very quiet, non-engaging." 2 VRP at 182. She would hide

3

### In re ParentalRights to K.MM, No. 91757-4 underneath furniture when she hadminor accidents, like spilling mille !d. at 184, 202, 290. The foster parents arranged for individual therapy, and K.M.M. began seeing Cory Staton in September 2009. K.M.M. presented "significant social, emotional and developmental delays" when she entered dependency. CP at 107. K.M.M. hadnot learned to form secure attachments to adults, meaning that she did not lmowhowto rely on adult caregivers. 1VRP at 64. These attachment problems were exacerbatedby the inappropriate corporal punishmentthat K.M.M. experienced in her first foster home. CP at 107. K.M.M. was also "parentified," meaning she tried to take care ofher younger siblings rather than relying on adults. 1VRP at 64. Once in a more stable environment and withregulartherapy, K.M.M. was able to catchup developmentally. !d. at 113. However, her relationship and experiences with herbiological parents continuedto remain unpredictable. In 2010, an attempt to return K.M.M. to D.C.'s custody failed whenD.C. had another relapse. 4 VRP at 651. Additionally, K.M.M.'s youngerhalf-sister K.C., who was born while D.C. was undergoing treatment for her substance abuse, was eventually removed from the mother's custody and broughtinto foster care withK.M.M. and



### 4

### In re ParentalRights to K.MM, No. 91757-4 K.M. 1 

### Id. The guardian ad litem (GAL) testified that this indicatedto K.M.M. that things were not going well with her mother. 

### I d. In early 2011, K.M.M. expressed to hertherapist, Ms. Staton, that she wanted to be adopted. 1VRP at 78. Ms. Statontookno action inresponse to this statement and did not disclose the information to the Department ofSocial and Health Services (Department) because she determined that K.M.M.'s desire to be adopted was evidence ofher emotional healing and developing ability to form attachments to adults. 

### I d. at79; CP at 126. In late 2011, K.M.M. began "acting out" during visits with her father by "picking onhim" andbeing confrontational. 4 VRP at 658. In March 2012, K.M.M. expressed reluctance to continue visitation with her parents. CP at 61. Soon after, K.M.M. began ending visits early and eventuallyrefusedvisitation altogether. 1VRP at 30. In response to K.M.M.'srefusal to participate in visitation, the dependency court appointed family therapist Thomas Sherry in July 2012 to "render an opinion

onthe appropriateness ofvisitation, and how such visitation can occur." CP at 324. Mr. Sherryrecommended a plan for "natural contact" between K.M.M. and herparents once heryounger siblings were transitioned back into their mother's

1All three children were eventually placed with K.M.M.'s current foster parents. Parental rights to K.M.M.'s siblings are not at issue in this case. 5

### In re ParentalRights to K.MM, No. 91757-4 custody. 2 VRP at 237-39, 321-22. Theplan was to facilitate passive contact betweenK.M.M. and herparents that was incidental to her interactions with her siblings. 

### Id. at 239. The recommended natural contactplan was not implementeduntil October 2012, when K.M.M.'s younger siblings were returned to their mother's custody. CP at 61

. K.M.M. expressed concern for her sisters' safety and worried about whether she would also be removed from her foster parents. 1VRP at 152-53. K.M.M. had several natural contacts with hermother that involved minimal to no interaction. 2 VRP 325-26. Evenwith limited interaction, K.M.M.'s foster parents testified that she was very clingy after these visits and oftenregressed to babytalk. 

### Id. at 194. K.M.M.'s first and only natural contact with J.M. occurred in December 2012. 

### Id. at 326. Atthis point, K.M.M. had nothad any contact withher father for approximately eight months. K.M.M. was hiding in the back ofthe van when it arrived atthe visitation site. 

### Id. at 328. J.M. tried to engage with K.M.M. and placedhis hands on her shoulders. 

### Id. at 329. K.M.M. became extremely upset, and the social worker immediatelyterminated the visit. I

### d. K.M.M. testifiedthat she "feltvery scared" during the interaction. I

### d. at 289. K.M.M.'s foster parents recounted that K.M.M. was so upset afterthe incidentthat she was trembling and regressed to baby talkfor several days following the visit. 

### Id. at 195.

6

### In re ParentalRights to K.MM, No. 91757-4 After the natural contact with J.M. failed, the dependency court suspended visitation withboth biological parents. CP at 335. K.M.M. has nothad any further contact with either D.C. or J.M. B. TERMINATION PROCEEDINGS The Department first filed terminationpetitions for K.M.M. and hertwo sisters inJune 2011. 

### Id. at 60. A terminationtrial was held in February 2012, but the Departmenttook a voluntary nonsuit after four days oftestimony in order to attempt to work further with the parents to resolve their individual issues. 

### Id. at

·48-49, 61. Specifically, there was additional workthat neededto be done to address J.M.'s mental health issues. 1VRP at 20.2 Two years later, the Department again petitionedto terminate D.C.'s and J.M.'s parental rights to K.M.M. 3 CP at 1-4. Following a five-day benchtrial held eight months later, the courtterminated J.M.'s parental rights to K.M.M. I

### d. at 105-12, 115-38. The court found that all court-identifiedparental deficiencies had been corrected and all necessary services hadbeenprovided. However, the court concluded that "[b]ecause the attachment bondno longer exists" between K.M.M. and her father, J.M. is "unable to parent" her. 

### Id. at 112.

2 According to the foster mother's uncontested testimony inthe termination proceeding presently at issue, K.M.M. was unaware ofthe first termination trial itselfor the outcome ofthe trial. 2 VRP at 214. 3 D.C. eventually relinquished her parental rights to K.M.M., and her parental rights were terminated in January 2014. CP at 171-75. D.C. is not a party to this case. 7In re ParentalRights to K.MM, No. 91757-4 On appeal, the commissioner for the Court ofAppeals affirmed the termination order, concluding that the trial court's finding thatJ.M. was "unableto parent" his daughter constituted an express finding ofcurrentparental unfitness. The commissioner also affirmedthe trial court's finding thatthe Department had provided all necessary services to J.M. J.M. movedto modify the commissioner's ruling. A three-judge panel for the Court ofAppeals, Division Two, granted the motionto modify and affirmed the termination order in a published opinion. In re We(fare ofK.MM, 187 Wn. App. 545,349 P.3d 929 (2015). J.M. then filed a motion for discretionary review with this court, which we granted. In re Welfare ofK.MM, 184 Wn.2d 1026,364 P.3d 119 (2016).4
ANALYSIS Our role in reviewing a trial court's decision to terminate parental rights is to determine whether substantial evidence supports the trial court's findings offact by clear, cogent, and convincing evidence. See In re Dependency ofK.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). Because ofthe highly fact-specific nature oftermination proceedings, deference to the trial court is "particularly important." In re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). We defer to the trial court's determinations ofwitness credibility and the persuasiveness ofthe

4 J.M. filed a motionto accept additional evidence on reviewpursuant to RAP 9.11, which was passed to the merits. We now deny the motion and decline to acceptthe additional evidence submitted by J.M. 8In re ParentalRights to KM.M., No. 91757-4 evidence, and "its findings will notbe disturbed unless clear, cogent, and convincing evidence does not exist in the record." In re Dependency of KR., 128 Wn.2d 129, 144, 904 P.2d 1132 (1995). Wereview de novo whetherthe court's findings offact support its conclusions oflaw. See In re Dependency of Schermer, 161 Wn.2d 927, 940, 169 P.3d 452 (2007). Werecognizethatparents have a fundamental liberty and privacy interest in the care, custody, and companionship oftheir children. In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). However, this right is not absolute. Itis "well established that whenparental actions or decisions seriously conflict with the physical or mental health ofthe child, the State has aparens patriaeright and responsibilityto intervene to protect the child." !d. at 762. Furthermore, our legislature has declared that "[w]hen the rights ofbasic nurture, physical and mental health, and safety ofthe child and the legal rights ofthe parents are in conflict, the rights and safety ofthe child should prevail." RCW 13.34.020. Chapter 13.34 RCWcreates a two-step framework for terminatingparental rights: first, the Department must show that it has satisfied its statutory obligations pursuant to RCW 13.34.180(1), andthen it must establish that termination of parental rights wouldbeinthe child'sbest interests. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). The first step focuses on the adequacy of the parents, while the second step looks at the child's best interests. !d.

9

### In re ParentalRights to K.MM, No. 91757-4 A petition seeking termination ofparental rights pursuantto RCW 13.34.180(1) must allege all ofthe following: (a) Thatthe child has been found to be a dependent child; (b) That the court has entered a dispositional orderpursuant to RCW 13.34.130; (c) That the child has been removed or will, atthe time ofthe hearing, have beenremoved from the custody ofthe parent for a period ofat least six months pursuantto 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 foreseeable 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 inthe near future.(f) That continuation ofthe parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanenthome. The State mustprove these allegations by clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). This requires thatthe ultimate facts are shownto be "'highlyprobable."' 

### In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831 (1973) (quoting 

### Supove v. Densmoor, 225 Or. 365,358 P.2d 510 (1961)). In addition to finding thatthe six statutory elements ofRCW 13.34.180(1) have been satisfied, due process protections require that a court make a finding of current unfitness before parental rights can be terminated. 

### K.R., 128 Wn.2d at 142 (citing 

### Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 71 L. Ed. 2d

10In re ParentalRights to K.MM, No. 91757-4 599 (1982)). This finding need not be made explicitly. Id. at 142-43. Satisfying all six ofthe statutory elements raises an implied finding ofparental unfitness. In

re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011). Oncethe court determines that the Department satisfied its requirements in accordance with RCW 13.34.180(1), parental rights may be tenninated ifdoing so is in the best interests ofthe child. RCW 13.34.190(1 )(b). The Departmentmust prove thattermination is in the best interests ofthe child by a preponderance ofthe evidence. A.B., 168 Wn.2d at 911. J.M. challenges the termination order on two grounds, one statutory and the other constitutional. First, J.M. alleges that his parental rights cannot be terminatedbecause the Department failed to fulfill its statutory obligationto provide all necessary services pursuant to RCW 13.34.180(1)(d).5 Second, J.M. claims thathis rightto due process was violated because the trial court failed to make a proper finding ofcurrentparental unfitness. A. NECESSARY SERVICES The Departmenthas a statutory obligationtoprovide all the services ordered by the permanency plan, as well as "all necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future."

5 .T.M. does not challenge the trial court's findings on any other requirements ofRCW 13.34.180(1). 11

### In re ParentalRights to K.MM, No. 91757-4 RCW 13.34.180(1)(d). "Necessary services" are not defined in the statute, butthe Department is required to specify in a permanency plan "what services the parents will be offered to enable them to resume custody." RCW 13.34.136(2)(b)(i). We have observed that "[w]hen a 'condition' precludes reunion ofparent and child, as here, regardless ofwhether it can be labeled a 'parental deficiency,' the State must provide any necessary services to address that condition as set forth in RCW 13.34.180(l)(d)." 

### In re Welfare ofC.S., 168 Wn.2d 51,56 n.3, 225 P.3d 953 (2010). The Court ofAppeals has relied on this statementto define "necessary services" as those services "neededto address a conditionthat precludes reunification ofthe parent and child." 

### In re Dependency of A.MM, 182 Wn. App. 776, 793, 332 P.3d 500 (2014) (citing C.S., 168 Wn.2d at 56 n.3). This definition of"necessary services" is consistent with the plain language ofRCW 13.34.180(1)(d). The trial court found that "[a]ll services reasonably available, capable of correcting the parental deficiencies within the foreseeable future, have been offered

orprovided to the father withthe exception ofreunification services which if provided are no longer capable ofproviding a solution."6 CP at 107. J.M., however, asserts that the Department failed to fulfill its statutory obligations in

6 The trial court referred to "reunification services" and "reunification therapy" in its oral and written rulings. CP at 107-08; 4 VRP at 706. However, J.M. specifically alleges thathe did not receive family therapy and attachment and bonding services. Pet'r's Suppl. Br. at 13. 12In re ParentalRights to K.MM, No. 91757-4 accordance with RCW 13.34.180(1)(d) because he was never provided with reunification services, specifically family therapy and attachment and bonding services. 1. Family therapy was not a necessary service because itwas never an appropriate service that couldhave beenprovidedto J.M Although family therapy was not provided to J.M., the record shows that this service was notreasonably available to him because a plan for reunification was

neverrecommended or implemented. According to the service providers who testified, family therapy is not offereduntil reunification occurs, and the record shows that J.M. never became stable enough for reunification with K.M.M. Consequently, family therapy was never reasonably available to J.M. Followingthe initial termination trial in February 2012, additional services

were identified for J.M. Kristopher Richardson, the second social worker assigned to K.M.M.'s case, testified thatthere "was a needto readdress mental health services with the father. More workneeded to be done on individual-level objectives with the parents." 1VRP at 20. According to Mr. Richardson, the Department operates within a framework offirst addressing a parent's individuallevel issues before providing services to address family-level issues. Id. at 20-21. The parent is in a better positionto deal with family-level concerns once individual issues, like chemical dependency and mental health conditions, have been addressed. 

### Id. at 21. Within this framework, family therapyto address J.M.'s 13

### In re ParentalRights to K.MM, No. 91757-4 relationship with K.M.M. would not be appropriate until J.M.'s underlying mental health issues had improved. The service providers consistently testified that J.M.'s mental health issues continued to affecthis ability to parent K.M.M. Although the Departmentworked with J.M. to setup mental health services, J.M. had difficulty maintaining his mental health treatment. J.M. eventuallyhadregular treatmentwith DavidWalker, but it is unknown what progress, ifany, J.M. made in therapy because Mr. Walker did not testify. 7 ConsistentwithMr. Richardson's testimony, Ms. Staton statedthat it was not her policyto work with biological parents in family therapy until reunification

was underway. Id. at 68. Once a child was in the process oftransitioninghome, it would be appropriate to work with the biological parents because they would become "the caretakers meeting the child's needs." Jd. at 69. She further explainedthat one ofthe prerequisites to family attachmenttherapy was that the parenthad worked through his orher ownissues enough for the child to be returned home. Id. at 138. This never occurred in K.M.M.'s case. Id. Similarly, after meeting with J.M. and K.M.M. separately to assess whether visitation should continue, Mr. Sherry did not recommendreunification. He saw

7 Jennifer Martin, the GAL, testified that although Mr. Walker was available to continue therapy, J.M. did notwant to participate in therapy with him because Mr. Walker apparently refused to testify on J.M. 'sbehalfat the terminationtrial. 4 VRP at 643. 14

### In re ParentalRights to K.MM, No. 91757-4 little possibility that K.M.M. would wantto return to herparents' custodybecause she was "adamant about notwanting visitation, period." 2 VRP at 226-27. Although a dependency review hearing order did state that "[t]he father will participate in family therapy with Thomas Sherry

...to address issues with visitation," CP at 334, Mr. Sherry clarified in his testimony thathis recommendation for family therapy was not for reunification with the parents, but to "maintainthe sibling relationships" once the sisters were in different placements, 2 VRP at 243, 246. Thus, because J.M. was unable to improve his underlying mental health issues to thepoint where he could parentK.M.M., reunification was never more than atheoretical possibility. Neitherreunificationnor family therapy was ever recommended by the service providers or ordered by the dependency court. Moreover, it was never contemplatedthat J.M. would be K.M.M.'sprimary caregiver. 8 CP at 109; 4 VRP at 653. Before the permanencyplan was switchedto adoption, the plan was to return K.M.M. to her mother's custody, anticipating that J.M. wouldhave visitation withher. 4 VRP at 653. Familytherapy was thus never

8 The concurrence disregards these facts and fails to acknowledge that .T.M. simplynever reached a point at which reunification services could have been provided. Moreover, it is clear from the record thatthe Department did not become aware ofK.M.M.'s lack ofattachmentuntil she began resisting visitation withher father, at whichpoint it was impossible to offerthe services the concurrence claims should have been offered. By attempting to shiftthe blame entirely to the Department's shoulders, the concurrence fails to presentthe facts in their entirety as they existed at the relevant time. 15

### In re ParentalRights to K.MM, No. 91757-4 "reasonably available" to J.M., and it didnot constitute a "necessary service" within the meaning ofRCW 13.34.180(1)(d). 

### 2. Attachmentandbondingservices were notnecessaryservices because itwouldhave beenfutile toprovide them '"Where the record establishes that the offer ofservices would be futile, the trial court canmake a finding that the Departmenthas offered all reasonable services."' C.S., 168 Wn.2d at 56 n.2 (quoting

### In re Welfare of MR.H, 145 Wn. App. 10, 25, 188 P.3d 510 (2008)). The provision ofservices is futile where a parent is unwilling orunable to participate in a reasonably available service that has been offered orprovided. 

### SeeIn re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988); 

### see also In re Welfare of Aschauer, 93 Wn.2d 689, 699 n.6, 611 P.2d 1245 (1980). Giventhe specific circumstances inthis case, the trial court correctly determined thatproviding attachment and bonding services would be futile because J.M. would nothave benefited from the services. Although J.M. was willing to participate in attachment andbonding services, these services would not havebeen able to remedy K.M.M.'s lack ofattachment. K.M.M. could nottolerate interactions with her father andrefused to attend visitation. Thus, as a practical matter, K.M.M. would notbe a willing participant in any therapeutic services with her father. There was no way for the social workers to force K.M.M. to participate in services, short oflying to her orusing physical force, which are bothprohibitedby department policy. 3 VRP at448. As 16

### In re ParentalRights to K.MM, No. 91757-4 the trial court observed, "[K.M.M.] herselfhas taken the strong positionthat she will not engage with herparents during visits and does not wantto be a part ofthat family." CP at 109. Additionally, there is no evidence in the recordthat attachment and bonding services couldhave repaired J.M.'s relationship with K.M.M. Rather, the evidence strongly supports the trial court's determination that the parent-childrelationship

was beyond repair and any attempt to reunify K.M.M. with her father would be detrimental and harmful to her. !d. Testimony from Ms. Staton andMr. Sherry amply supports the trial court's finding that "[K.M.M.] would suffer emotional derailment ofher progress, and any such attempt would likely compromise her ability to begin to establish the other social and emotional stages she needs to go through, such as developing an ability for empathy." !d. While it is possible that attachment and bonding services might have prevented K.M.M.'s detachment from her father had they beenpreviouslyprovided, we cannot go back intime to prevent the damage from occurring. The futility ofany additional services was further supportedby J.M.'s demonstrated lack ofempathy for K.M.M.'s needs. When asked what was in K.M.M.'s bestinterest, J.M. did not express any recognition that he needed to be a betterparent, but instead asserted that K.M.M.'s foster parents were "hinderingher return home." 3 VRP at 526. J.M. was willing to assignblame to the Department,

17

### In re ParentalRights to K.MM, No. 91757-4 foster parents, K.M.M. 'stherapist, and his own therapists for the fact that reunification never occurred, buthe did not fully acknowledge the role thathe played in K.M.M.'s continued dependency. This mindset was further illustrated by Mr. Sherry's testimony thatJ.M. did not seemto understand why reunification had not yet happened. 2 VRP at 236. According to Mr. Sherry, J.M.'s thinking was "more linear" in that he seemed to believe thatbecause he had made some efforts to improve himself, reunification should be the next step. 

### I d. He could not understand thatK.M.M. did not wantto have a connection with him any longer. Similarly, Lisa Sinnett, a social worker assigned to K.M.M.'s case, stated that she believed "[J.M.] is unable to meet [K.M.M.]'s needs" because ofhis "inabilityto kind ofunderstand whatherneeds are. He has an inflexibility in regards to that, and so he isn't able to meet herwhere she is at." 3 VRP at 396-97. Ms. Sitmett testified that despite lengthy conversations with J.M., [he] has beenunable to see things from [K.M.M.]'s point ofview, in my opinion. He hasn'tbeen able to fully tmderstand why the length oftime that she has beeninvolved in this andthat she

-- what she wants in regards to what she wants longterm for herselfand also in regards to why she was not going to continue withthe sibling visits, so a lack ofunderstanding and insight into her needs. 

### Id. at 397-98. J.M.'s inability to meet K.M.M. "where she is at," 

### id. at 397, was exemplified by the failed natural contact. J.M. overwhelmed K.M.M. against the

18

### In re ParentalRights to K.MM, No. 91757-4 social worker's instructions and did notunderstand why the interaction was so traumatic and upsetting for his daughter. 2 VRP at 326, 330. Furthermore, because he had not addressed his underlying mental health issues, J.M. "hasn'tbecome ready to support [K.M.M.] 's attachmentto him." 4 VRP at 664. J.M. had been unable to maintain regular mental healthtreatment, and there was no evidence that he would be able to in the future. In fact, his testimony at trial suggested an unwillingness to continue with mental health services, which he described as "awaste oftime and money and waste ofenergy." 3 VRP at 496. Unfortunately, as long as J.M.'s mental health issues remain untreated, attachment and bonding therapy would be ineffective. "[A] parent's unwillingness or inability to make use ofthe services provided

excuses the State from offering extra services that mighthave beenhelpful." 

### Ramquist, 52 Wn. App. at 861. Furthermore, aparent's lack ofinsight into his

own condition and the child's needs is relevantto assessing whether the parent would benefit from additional services. 

### See In re Welfare ofH.S., 94 Wn. App. 511, 528, 973 P.2d474 (1999) (citing

### Krause v. Catholic Cmty. Servs., 47 Wn. App. 734, 747, 737 P.2d 280 (1987)). Thus, in light ofJ.M.'s unwillingness to take advantage ofthe services that had already beenprovided to him, the Department was not required to provide additional services.

19In re ParentalRights to K.MM, No. 91757-4 3. Providing additionalservices wouldnot remedyJM 'sparental deficiencies within theforeseeablefuture Evenin instances where the Department inexcusably fails to offer all necessary services, termination may still be appropriate ifthe service would not remedy the parent's deficiencies within the foreseeable future. In re Dependency ofT.R., 108 Wn. App. 149, 164,29 P.3d 1275 (2001). The '"foreseeable future"' is determined from the point ofview ofthe child. Hall, 99 Wn.2d at 851. Here, the trial court concludedthat even ifattachment and bonding services could remedy the lack ofattachment between J.M. and K.M.M., "there is no reasonable probability that reunification therapy, or any otherkind oftherapy, can remedy [the severed parent-child bond] within theforeseeablefuture." CP at 108 (emphasis added). There is substantial evidence in the record to supportthis conclusion. The testimony was consistent about K.M.M.'s need for immediate stability and permanence. Ms. Staton, who has worked with K.M.M. since almost the beginning ofdependency, testifiedthat K.M.M. "has a lot ofanxiety over what is t' going to happen, whether or not she is going to be able to be adopted, or whether

or not she is going to be returned." 1VRP at 92. Ms. Staton further testifiedthat this fear and anxiety is already "delaying [K.M.M.] from entering this new developmental stage in a healthy way." 

### I d. at 92-93. Ms. Staton opined that K.M.M. had a short-term need for permanency so that she could "let go ofthis fear" and "move on to the next developmental stage." 

### Id. at 93. According to Ms. 20

### In re ParentalRights to K.MM, No. 91757-4 Staton, K.M.M. wouldneedto maintainher secure attachment to her foster parents in orderto move forward in her development. I

### d. at 141. K.M.M. herselfwas clear about the fact that she did not wantto be reunited withherparents. K.M.M. testifiedthat she did notwantto live with herbiological parents and wantedto be adoptedbyher foster parents.9 2 VRP at 285, 303. K.M.M. expressedthis desire to the adults around her. Mr. Sherrytestified that it became clear from their first meeting that K.M.M. was "adamant" about not wanting visitation withherparents. I

### d. at 226-27. Mr. Richardsontestified thathe had neverhad a case where a child had "drawn a line inthe sand" to the same extent as K.M.M. 1 VRP at 54. JenniferMartin, the GAL, explainedthat "[K.M.M.], as an older child and having grownup overthe last

... four and a half years, she has [begun] to develop an identity, andthatidentity is separate from her parents." 4 VRP at 665.

9 It is worth noting thatpursuantto RCW 26.33.160(1)(a), a child's consent to adoption is required ifthe child is 14 years ofage or older. This suggests thatthe legislature recognizes that children, particularly children at K.M.M.'s age, should have a say inwhat happens to them. The value ofthis child-centered approach is supported by amici curiae Center for Children & Youth Justice et al., who observe that "[t]here is evidence to suggestthat a child's chances ofsuccess in a placement are improved when a youthfeels comfortable and safe in their placement." Br. of Amici Curiae Ctr. for Children & Youth Justice, Mockingbird Soc'y, & Children & Youth Advocacy Clinic atUniv. ofWash. Sch. ofLaw (Br. ofAmici Curiae CCYJ) at I0-11. In this case, K.M.M. has repeatedly asked why no one listens to her with regard to what she wants. 4 VRP at 665. The importance ofconsidering K.M.M.'s point ofview is underscored bythe testimony that disregarding K.M.M.'s adamantdesire to be adopted byher foster parents would be detrimental to her sense ofself. 2 VRP at 272. 21

### In re ParentalRights to K.MM, No. 91757-4 There was no evidence thatthe parent-childrelationship could berepaired. And even ifan attachment between J.M. and K.M.M. could be restored, there was

no reason to believe thatthis would be possible within a time frame that would be conducive to K.M.M.'s emotional development and well-being. Therefore, based

on the unique facts presented by this particular case, we find substantial support for the trial court's conclusionthat "all necessary services, reasonably available, capable ofcorrectingthe parental deficiencies within the foreseeable future have been expressly and understandably offered or provided" in accordance with RCW 13.34.180(1)(d). 

### 4. There is no requirement for identical services between fosterparents andnoncustodialparents J.M. asserts that K.M.M.'s foster parents were providedwith attachment and bonding services that allowed them to form an attachment withher. The foster parents received instructions to treat K.M.M. like a muchyounger child in orderto address her developmental delays, which includedrocking her in a blanket. 1VRP at 101-02. Relying on 

### C.S., 168 Wn.2d 51, J.M. asserts that offering services to the foster parents but notto him constitutes a failure to provide all necessary services as required by RCW 13.34.180(1)(d). However, contrary to J.M.'s interpretation, 

### C.S. does not stand for the proposition that noncustodial parents mustreceive services identical to the foster parents.

22

### In re ParentalRights to K.MM, No. 91757-4 In 

### C.S., the mother had not beenprovided with the same training as the foster mother to manage the child's behavioral problems. 

### Id. at 56. The foster mother was able to successfully care for the child after the services were offered. 

### Id. at 55-56. The crux ofthe decision in 

### C.S. was that the mother was notprovided with reasonably available services that couldhave helped her parenther child. While the fact that foster parents receive certain services maybe evidence of reasonable availability, it does not create an inflexible requirementthat noncustodial parents receive identical services. As the primary caregiver, a foster parenthas a fundamentally different relationship with a dependent child than a noncustodial parent. The services needed bythe foster parents to adequately care for a child will likely be different from what may be reasonably available to a parent in many cases. This is precisely what the facts before us demonstrate. Ms. Statontestified that the foster parents were involved in K.M.M.'s therapy only because they were herprimary caregivers. 1VRP at 68. The goal ofK.M.M.'s individual therapy

was to help her form healthy attachments to adults generally, not to her foster parents specifically. The hope was that once K.M.M. formed an attachment to her foster parents, she would be able to transfer that attachment to her parents ifthe time for reunification ever arrived. 

### Id. at 71-74. Moreover, because K.M.M. could

23

### In re ParentalRights to K.MM, No. 91757-4

no longertolerate contact with J.M., his involvement in K.M.M.'s individual therapy was neitherpossible nor appropriate. B. CURRENTPARENTALUNFITNESS The trial court concluded that J.M. was "unable to parent" K.M.M. due to her lack ofattachment to him and his inability to remedy that lack ofattachment at the time oftrial. J.M. contends that this does not constitute a finding ofcurrent parental unfitness, and even ifit did, the facts are not sufficient to support such a finding. J.M. further asserts that the trial court implicitly found thathe was fit when it concluded that all parental deficiencies had been remedied and his inability to parent was not due to any fault on his part. We hold that the trial court did properly find J.M. was currently unfit to parent K.M.M. atthe time oftrial. This courthas previously stated thatthe first part ofthe termination proceeding focuses onthe adequacy ofthe parent, and it is "'premature'" to consider the child's best interests before resolving the question ofparental unfitness. 

### A.B., 168 Wn.2d at 925 (quoting

### In re Welfare ofChurape, 43 Wn. App. 634, 639, 719 P.2d 127 (1986)). Applying this principle, J.M. argues thatthe unfitness inquiry is limited to the qualities ofthe parent and cannot look "to outside circumstances that already inform othertermination elements." Pet'r's Suppl. Br. at 11. In J.M. 's view, by finding thathe was currently "unable to parent" K.M.M. due to the lack ofa bond between them, the trial court improperly

24

### In re ParentalRights to K.MM, No. 91757-4 considered factors beyond his personal characteristics in determining parental unfitness. While it is true that the best interests ofthe child inquiry is a different and separate consideration from parental unfitness, the statute and case law do not support the argumentthat the parental unfitness inquiry is limited solely to consideration ofthe parent's deficiencies. The parent-childrelationship necessarily involves 

### both the parent and the child; thus, it is necessary to consider whether a parent is capable ofparenting the particular child given the child's specific, individual needs. This approach is supported by aplainreading ofthe statute and case law interpreting "unfitness" as appliedto chapter 13.34 RCW. 

### 1. Aplain reading o[RCW13.34.180 and relatedstatutes demonstrates that the unfitness inquiry goes beyondaparent's deficiencies There is no statutory definition of"unfitness," butthe statutory elements of RCW 13.34.180(1) "necessarily and implicitly include[] evidence ofcurrent parental unfitness." 

### K.R., 128 Wn.2d at 142. In other words, the elements of RCW 13.34.180(1) form the factual basis for a finding ofparental unfitness. Ifany requirement ofRCW 13.34.180(1) is not satisfied by clear, cogent, and convincing evidence, then termination ofparental rights is not permissible. Along the same lines, ifall ofthe requirements ofRCW 13.34.180(1) have been met, there is an implied finding ofparental unfitness. !d. Thus, examining the scope ofthe

25

### In re ParentalRights to K.MM, No. 91757-4 statutory requirements provides insight into what may be properly considered when determining parental unfitness. While RCW 13.34.180(1)(d) looks specifically at a parent's deficiencies, RCW 13.34.180(1)(e) more broadly requires "[t]hatthere is little likelihood that 

### conditions will be remedied so thatthe child can be returned to the parent in the

near future." (Emphasis added.) "Where the statute's meaning is plain and unambiguous, we derive legislative intent from the statute's plain language." 

### In re Welfare ofL.N.B.-L., 157 Wn. App. 215,238,237 P.3d 944 (2010) (citing 

### City of Seattle v. St. John, 166 Wn.2d 941, 945, 215 P.3d 194 (2009)). Here, "conditions" is a broad term that is capable ofencompassing all relevant facts and circumstances. Ifthe legislature had intendedto limitthe "conditions" that may be considered when determining parental unfitness to specific "parental deficiencies," then it couldhave used appropriately specific language. Because it did not do so, limiting an unfitness inquiry to parental deficiencies would draw a narrower scope thanthe legislature intended. The argwnentthat "conditions" extends beyond "parental deficiencies" is further supported by language instructing that "[i]n determining whetherthe conditions will be remedied the court 

### may consider, butis 

### not limited to," the factors specifically enumerated in the provision. RCW

26

### In re ParentalRights to K.MM, No. 91757-4 13.34.180(1)(e) (emphasis added). 10 Furthermore, RCW 13.34.180(1)(t)provides that termination is appropriate where "continuation ofthe

### parentandchild relationship clearly diminishes the child's prospects for early integration into a stable and permanenthome." (Emphasis added.) This necessarily requires consideration ofthe specific parent-child 

### relationship, rather thanjustthe parent's deficiencies. Thus, considering the statutory language in context, it appears thatthe legislature did not intend for parental unfitness to be considered in isolation, as J.M. contends. Rather, the totality ofthe parent-childrelationship is already part of the unfitness inquiry. 

### 2. Courts already consider the specificparent-childrelationship when determining unfitness Case law also demonstrates that in appropriate circumstances, courts will lookbeyond the existence ofgeneral parental deficiencies when making unfitness determinations to consider whether the parent is able to provide for the specific child's basic, individual needs. In

### Aschauer, 93 Wn.2d at 693, for example, we

10 Amici advocate for theposition that where continuation ofaparent-childrelationship would be significantly detrimental to the child's social and emotional development, "thatfact is and should be deemed a parental deficiency under the statute at the time oftrial." Br. ofAmici Curiae CCYJ at 10. Whether the circumstances are characterized as a "parental deficienc[y]" pursuant to RCW 13.34.180(l)(d) or a "condition[]" pursuant to RCW 13.34.180(1)(e), our case law is consistent with the propositionthat the focus ofthe inquiry should be determining ifthe nature ofthe parent-child relationship constitutes abarrier to reunification. See C.S., 168 Wn.2d at 56 n.3. 27In re ParentalRights to K.MM, No. 91757-4 upheld a termination order, finding that "[t]herecord is replete with evidence that the persons who had the care and custody ofthe children from the time oftheir infancy hadnot hadthe ability to meet theirphysicalandemotional needs." (Emphasis added.) Although the "theparents did their best to care for the children," the evidence demonstrated that "bothparents were incapable ofgiving them the care thatthey needed." !d. at 694. This conclusion was notbased solely

on a general parental deficiency, but on the specific context ofthe parent-child relationship at issue in that case. The motherwas unable to cope with her own serious mental health condition, let alone the needs oftwo children with severe physical, emotional, and social developmental delays. !d. In light ofthat specific context, we heldthat "[t]he mother, while she undoubtedly loves the children also and desires to have them withher, has been found, upon substantial evidence, to be likewise incapable ofnurturing them." !d. The analysis inAschauer demonstrates that the proper inquiry is whetherthe parent is able to provide care for the child actually involved, not merely whetherparental deficiencies exist in the abstract. Similarly, the Court ofAppeals has held that the fact that aparental deficiency exists is notnecessarily sufficient to show unfitness. For example, Division One stated that "mental illness is not, in and ofitself, proofthat aparent is unfit or incapable. The court must examine the relationship between the mental



### 28

### In re ParentalRights to K.MM, No. 91757-4 condition and parenting ability." 

### In re Dependency ofT.L.G., 126 Wn. App. 181, 203, 108 P.3d 156 (2005). In other words, the deficiency must affect a parent's ability to adequately care for a child. Along the same lines, Division Three observed that "[t]he court considers behavior manifesting mental illness within the totality ofthe circumstances" when determining whether aparent is unfit. 

### HS., 94 Wn. App. at 528 (citing

### In re Welfare of Hauser, 15 Wn. App. 231, 235, 548 P.2d 333 (1976)). The court further stated that "[a] child should not be left inthe custody ofa parent whose mental illness renders the parentunable to understand or meetthe needs ofthe child." 

### Id. (citing

### In re Welfare of Frederiksen, 25 Wn. App. 726, 733,610 P.2d 371 (1979)). These cases demonstrate that unfitness is not coextensive with the existence ofaparental deficiency. A deficiency rises to the level ofparental unfitness when it interferes with the parent's ability to provide for the child's basic health, safety, and well-being. An unfitness inquiry that extends beyondthe existence ofparental deficiencies to consider the specific parent-child relationship at issue is also consistent with how "unfitness" is examined in the context ofother sections of chapter 13.34 RCW. With regard to nonparental custody petitions, we have previously statedthat "[a]n unfit parent generally cannotmeet a child's basic needs and, in such cases, the State isjustified in removing the child from the home and, in certain cases, permanently terminating parental rights." 

### In re Custody of

29In re ParentalRights to K.MM, No. 91757-4 Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006). We echoedthis same conception of"unfitness" more recently inIn re Custody of B.MI-l., 179 Wn.2d 224, 236, 315 P.3d 470 (2013) ("A parent is unfit ifhe or she cannot meet a child's basic needs."). And in dependency cases, we have recognized that a showing of parental deficiency is notthe same as proving parental unfitness. Schermer, 161 Wn.2d at 943 (citingIn re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992)). These cases supportthe argumentthat the mere existence ofaparental deficiency does not necessarily determine whether a parent is currently unfit. Conversely, we reject the argument that remedying general parental deficiencies is dispositive in determining whether a parent is currently unfitto parent aparticular child. The proper inquiry is whether the existing parental deficiencies, or other conditions, prevent the parent from providing for the child's basic health, welfare, and safety. See In re Welfare of A.B., 181 Wn. App. 45, 61,323 P.3d 1062 (2014). Not all children have the same basic needs; a child with attention deficit disorder, for example, will have needs that are specific to managing that disorder. See C.S., 168 Wn.2d at 55. Thus, in order to determine whether a parent is a fit parent to a

30

### In re ParentalRights to K.MM, No. 91757-4 

### particular child, the court must determine thatthe parent is able to meet that child's basic needs. 11 Applying the foregoing analysis to the facts at hand, there is substantial evidence to supportthe trial court's conclusion thatJ.M. was unable to parent K.M.M. The trial court correctly determined thatthe Departmenthad discharged its statutory obligations underRCW 13.34.180(1). Despite receiving all necessary available services, J.M. remains unable to parent K.M.M. due to a lack of attachment. There is no evidence that any additional services would remedy this condition within K.M.M.'s foreseeable future. The totality ofthese circumstances is sufficient to support a finding ofcurrent parental unfitness. 12

11 Like J.M., amicus King County Department ofPublic Defense asks us to look at a parent's deficiencies in a vacuum when determining parental unfitness. Br. ofAmicus Curiae King County Dep'tofPub. Def. at 4 ("the parental unfitness inquiry must focus ontheparent and not on the child"). The unfitness inquiry is not as rigid as the briefing contends. More to the point, we do not hold that the best interests ofthe child should be able to overcome a parent's constitutionally protected rights-the case law is clear onthis point. However, the particular facts ofthis case illustrate why an unfitness inquiry that fails to look at the specific parent-child relationship may not only be unfair, but could result in harm to the child. Reducing termination proceedings to a simple matter ofparental rights versus the best interests ofthe child ignores the fact thatthe rights ofboth sides are, more oftenthan not, interrelated in complicated ways that require individual and specific consideration. 12 As required by RCW 13.34.190(1)(b), the trial court concluded thattermination was in K.M.M.'s best interests. There is substantial evidence to supportthe trial court's conclusion. Because J.M. did not assign error to this conclusion on appeal, we do not address this issue further. 31In re ParentalRights to K.MM, No. 91757-4

CONCLUSION A court's decision to terminate parental rights is rarely ever an easy one to make. "Courts are always reluctant to deprive parents ofrights with respect to their children, and it is particularly sad when the parent cares for the child and desires to be a good parent, as appears to be the case here." Aschauer, 93 Wn.2d at 695. J.M. 's efforts to correct his parental deficiencies and retain his parental rights

are commendable, but "the court may not accommodate the parents' rights when to do so would ignore the basic needs ofthe child." HS., 94 Wn. App. at 530. Unfortunately, as the trial courthere observed, "no one had a crystal ball in this case." CP at 107. No one could have foreseen howthe confluence ofevents would lead to K.M.M.'s complete detachment from her father. The sad fact remains that his daughter no longer feels abond ofattachmentto him, nothing could have been done at the time oftrial to repair the severedparent-childbond, and any efforts to do so would cause actual harm to K.M.M. The alternative to termination is not placing K.M.M. backinher father's custody, but the continuation ofher dependency, which has already spanned almost

seven years. The mental health experts and social workers who know K.M.M. best all testified unequivocally that a continued lack ofstability and permanence would likely cause serious delays in her development. To borrow sentiments from the

32

### In re ParentalRights to K.MM, No. 91757-4 Court ofAppeals, "No child should languish for years in foster care. [K.M.M.] should be freed to move on with her life." H.S., 94 Wn. App. at 530. Based on the totality ofthe circumstances presented by the particular facts in this case, we affirm the Court ofAppeals.



### 33

### In re ParentalRights to K.MM, No. 91757-4

WE CONCUR:

34

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring)

No. 91757-4 FAIRHURST, J. (concurring)--Before a parent's fundamental rights can be terminated, the Department of Social and Health Services (Department) has the burden to prove by clear, cogent, and convincing evidence that "all necessary services, reasonably available, capable ofcorrectingthe parental deficiencies within the foreseeable future have been expressly andunderstandably offered orprovided." RCW 13.34.180(l)(d), .190(l)(a)(i). The Department has failed to offer or provide certain services that were "'needed to address a condition that precludes reunification ofthe parent and child"'-namely, services designed to address the failing attachmentbondbetweenthefather, J.M., andhis daughter, K.M.M. Majority at 12 (quoting 

### In re Dependency of A.MM, 182 Wn. App. 776, 793,332 P.3d 500 (2014) (citing 

### In re Welfare ofC.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010))). The trial court acknowledged that J.M. never received certain necessary services, finding that "[a]ll services reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future, have been offered orprovidedto the father 

### with the exception of reunification services." Clerk's Papers (CP) at 107 (emphasis added). Based on the record and the trial court's findings, the

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) Department's failure to provide such services contributed to K.M.M.'s detachment from her father: "In 2011, the relationship between [K.M.M.] and her father was at

a criticaljuncture and the provision ofreunification therapy at that time may have prevented her from extinguishing her attachment to her father." CP at 108. But instead ofproviding the opportunity for J.M. to repair this relationship with relevant services, the Department worked on K.M.M.'s attachment issues through her individual therapy, which her foster parents were invited to participate in. Ultimately, K.M.M. refused to engage with her biological family and instead identified only with her foster parents, which "severed" the "parent child relationship" and "attachmentbond" between J.M. and K.M.M. CP at 108; 

### see also CP at 127-28 ("[T]he tenuousness ofher attachment to her father during that time period was more easily extinguished because she was working hard on facilitating attachments with adults, who happen to be her foster parents."). Despite J.M.'s need for reunification services (particularly regarding attachment and bonding) during a critical point in K.M.M.'s dependency, the trial court concluded that the Department met its burden under RCW 13.34.180(1)(d) because, bythetime ofthe terminationproceedings, K.M.M.'sdetachmentfrom her father had exacerbated to the point that additional services could not remedy their relationship, at least not without severely harming K.M.M. The majority upholds this decision. 

### 2In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) I write separately because I am concerned that this emphasis on the harmfulness ofreunification therapy and services atthe time of the termination trial allows the Departmentto avoid its statutory duty to provide services at a time when they would be most helpful to promoting family reunification, then terminate parental rights based on circumstances that may have been avoided had the Departmenttimely fulfilled its duty to provide services. The majorityholds that attachment and bonding services were not "necessary services" underRCW 13.34.180(l)(d)because itwouldbe futile for the Department to offerthem. Majority at 16. Themajorityfocuses onthreemajorreasons to support its conclusion offutility. First, the majority asserts that K.M.M.'s detachment from her father was so severe by the time ofthe termination trial that no further services couldremedythatrelationship, atleastnotwithoutharming K.M.M. 

### I d. Second, the majority claims that J.M.'s lack of empathy toward K.M.M.'s needs rendered additional services futile. 

### Id. at 17. Third, the majoritypoints to J.M.'s mentalhealth issues as evidence that "attachment and bonding therapy would be ineffective." 

### Id. at 19. I cannot agree that these rationales support a finding of futility given the Department's failure to evenoffer attachment andbonding services and considering J.M.'s willingness and demonstrated completion ofall other necessary services.

3

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) 1. Timeliness ofreunification services It is undisputed that K.M.M. had special needs involving her attachment to adults and that J.M. was never offered any sort ofattachment and bonding services thatwould allowhim to adequatelyrespondto those needs. Themajority admits that J.M. was willing to participate in such services, but claims that it is simply too late

now. Byjumping so quickly to a conclusion offutility, the majority fails to take into account significant factors, such as J.M.'s willingness and ability to complete all services, the crucial need for such services during the dependency, and the effect that the Department's failure to offer those services had on K.M.M.'s detachment from herfather. Themajority also seemsto expandthe scope ofthejudiciallycreated futility doctrine. The trial court repeatedly emphasized that its decision to terminate parental rights had nothing to do withJ.M.'sparental deficiencies. CP at 108 ("[i]t is not due to parental deficiencies" that K.M.M. would no longer engage with her biological family; "[t]hroughno fault ofthe father, [K.M.M.] hadtakenthe strongpositionthat she did not want to engage in visitation"), 109 ("The lack ofthe attachment bond is not due to any of [J.M.]'s parental deficits. [J.M.]'s parental deficits have been corrected. The father here has successfully participated in the court ordered rehabilitative services and has remedied these individual parental deficits."). According to the trial court, "The record is replete with the father's willingness to 

### 4

### In re ParentalRights to K.MM., No. 91757-4 Fairhurst, J. (concurring) enter into, to attend, make progress in, and complete all ofthe services that were offeredto himbythe State." CP at 120. The trial court also concluded that J.M. was
an "appropriateparent" to his other daughter. CP at 109, 133. J.M. worked hard to complete all ofthe services the Department offered, and he remedied all ofhis parental deficiencies, yet ultimately his parental rights were still terminated without theDepartment ever offering him necessary attachment and bonding services. Given J.M.'s positive history of completing all services, the Department cannot now claim that attachment and bonding training wouldbe futile when it did not even attempt offering him that sort of therapy. The majority's conclusionthat additional services wouldbe futile disregards essential aspects ofour futility doctrine and creates anew exception. The majority's own definition of"futile" states, "Theprovision ofservices is futile where a parent is unwilling or unable to participate in a reasonably available service that has been 

### offeredorprovided." Majority at 16 (emphasis added). Based

on this definition, a service cannot be futile when the Department has never even offered it. Similarly, in 

### B.P. we noted that the futility mle "derives from cases in which the State made repeated offers ofservices but eventually gave up after the parent refused to accept any ofthose offers." 

### In re Parental Rights to B.P.,

_ Wn.2d _, 376 P.3d 350, 362 n.5 (2016). In that case, we reversed a termination order lmder RCW 13.34.180(l)(d) for failing to provide necessary attachment and 5In reParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) bonding services. We noted that such services would not be futile where the parent had "accepted every offer of services and did exceptionally well" in the limited servicesthattheDepartment didprovideto address the parent'srelationship withthe child. Id. Based on these definitions of "futility," I cannot say that attachment and bonding services would be futile in this case given J.M.'s dedication to all other services offered and the Department'sundisputed failure to ever offer such services, especially during a time period that the trial court identified as "critical" to saving the parent-childrelationship. CP at 108, 118, 127, 134. Notably, the Department's failure to timely provide attachment and bonding services contributed to K.M.M.'s detachment from her father. Although K.M.M. expressed a desire to be adopted and that she no longer wanted to see her biological parents at a time when visits and services with her parents were still ongoing, K.M.M.'s counselor failed to advise the Department about these sentiments or to explore possible need for attachment or reunification services for the biological parents. CP at 126. The trial court's written findings explain that the Department offered services for K.M.M. to develop secure attachments to adults, but then she ultimately attached only to her foster parents and severed her relationship with her biological parents. CP at 107-08.

6

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) As the trial court's oral ruling explains more fully, the Department's failure to offerreunificationtherapy for J.M., particularly considering K.M.M.'s individual therapy that encouraged attachments to her foster parents, directly impacted K.M.M.'s detachment from J.M. 

### See CP at 129 (K.M.M.'s refusal to visit her biological parents "is a circumstance

... or a combination

... ofa lapse oftime, not striking while the iron was hot, in terms ofgetting reunification therapy started in 2011 [,]

... and the focus ofall ofthe therapy, which was to facilitate [K.M.M.] to shore up and encourage herto form secure attachments with adults."), 134 ("[T]here

was a failure to provide reunification therapy at a critical juncture[;]

... because there was that failure, [K.M.M.] was allowed to form a strong attachmentbondwith her foster parents suchthat

...thatrelationship betweenher dad andher cannotnow be repaired without great harm being caused to [K.M.M.]."), 134-35 ("The relationship is not dueto aparentaldeficiencytoday. Itis due, as I said,to thatearlier moment in time, which was missed interms ofthe ability for [K.M.M.] and her dad to reunify."); 

### see also CP at 118 (the critical services "capable ofcorrecting the parental deficiencies within a foreseeable future were not provided at a time when those deficiencies or those problems could have been corrected"). I am deeply troubled that the Department's failure to provide necessary attachment and bonding services in a timely manner appears to be the main reason thatreunification is no longer available betweenthis parentandhis child. In contrast 7

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) to the cases in which the Department has offered services but the parent refuses to take advantage ofthem, there are no such grounds for a finding offutility here. 1 2. Empathy The second reason the majority claims that attachment and bonding services would be futile involves J.M. 's supposed "lack ofempathy for K.M.M.'s needs." Majority 17. However, the examples citedbythe majority point more to J.M.'s lack of 

### understanding ofK.M.M.'s unique needs and how he should respond to them. This is exactly why additional services are necessary, not areasonto claimthatthey wouldbe futile. 

### See 1VerbatimReport ofProceedings (VRP) (Oct. 29, 2013) at 112 (explaining that family therapy can help a parent to meet the child's emotional needs). From the record, it appears that understanding K.M.M.'s specialized needs

was a prerequisite for any adult hoping to establish a parental bond with her. 

### See 1 VRP at 67. As we stated in C.S., "When a 'condition' precludes reunion ofparent and child, as here, regardless ofwhether itcanbe labeled a 'parental deficiency,' the

1 See, e.g., In re Welfare of Aschauer, 93 Wn.2d 689, 699 n.6, 611 P.2d 1245 (1980) (stating that offering services would be futile because "the mother was unwilling to move from Portland, and thus the department could not effectively offer her services"); In re Welfare of Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983) ("This is not a case where a parent refused services or referrals which were actually offered." (citing In re Jones, 436 N.E.2d 849, 853-54 (Ind. App. 1982))); In re Welfare ofMR.H, 145 Wn. App. 10, 26, 188 P.3d 510 (2008) (finding services futile "[w]here the Department offers services but the parentrefuses to participate"). 8

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, 

### J. (concurring) State must provide any necessary services to address that condition as set forth in RCW 13.34.180(1)(d)." 168 Wn.2d at 56 n.3; 

### accordB.P., 376 P.3d at 361. I find it notable that the Department offered K.M.M.'s foster parents some sessions on "howto meetherneeds" and "attachment," butJ.M. did notreceive such services. 

### See 1VRP at 99-101. I agree with the majority that the Department is not necessarily obligatedto provide biological parents with services that are "identical" to those provided to foster parents. Majority at 22. However, in 

### C.S., a case that is in many ways analogous to the one at issue, we reasoned that when the Department recognizes that certain available services are necessary and capable ofremedying the very deficiency that is preventingreunification and the Department fails to offer those services to the biological parent when the same services have been offered to the foster parent, termination is improper. 168 Wn.2d at 55-56. Inthat case, the child, C.S., was diagnosedwith attention deficithyperactivity disorder, oppositional defiant disorder, obsessive-compulsive disorder, and sensory integration disorder, all of which made it difficult for adults to manage C.S.'s behaviorattimes. 

### !d. at 55. Thefoster motherfaced various difficulties in controlling C.S. until the Departmentplaced C.S. on medication andprovidedthe foster mother with training on how to effectively manage C.S. 

### Id. at 55-56. The combination of medication and proper training proved successful. 

### Id. at 56. Although C.S.'s biological mother had remedied the underlying parental deficiencies thatjustified 9

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) the dependency, the Department did not offer her the same services because it believedthe serviceswouldbe futile. Id. 

### at 56 n.2. The trial court acknowledgedthat the biological mother had remedied her parental deficiencies but nevertheless terminated the biological mother's parental rights, finding that she "lacked 'the patience, presence ofmind, skills, experience, time in a day, and availability to care for [C.S.]-given his special needs,' and these conditions showed there was little likelihood C.S. could be returned to [his biological mother] in the near future." Jd. 

### at 55. We reversed, holding that because medication and training were necessary to address C.S.'s behavioral problems regardless of who was caring for him, and because the training was not offeredto his biological mother, RCW 13.34.180(1)(d) had not been met and termination was improper. Jd. 

### at 56. The fact that the Department provided training for his foster parent and medication for C.S. in order to control C.S.'s behaviorindicatedthatproper services were not only available, but thatthey were necessary in orderto permit any adultto care for C.S. and his special needs.Like the mother in 

### C.S., J.M. completed every offered service and remedied each parental deficiency underlying the initial dependency and termination. CP at 109. Importantly, according to K.M.M.'s therapist's testimony, the attachment and bonding servicesthatK.M.M. 

### received andherfoster parentswere ableto participate in were essential for K.M.M. 

### to form healthy attachmentsto adults and for her foster 10

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) parents to be able to understand and address K.M.M.'s behavior. 1VRP at 67-68, 106; 

### see also CP at 107. In other words, attachment and bonding services were required in orderto address K.M.M.'sunique issues, andtherefore shouldhavebeen deemed "necessary" under RCW 13.34.180(1)(d). As in 

### C.S., the fact that certain services (here, attachment and bonding services) were available to K.M.M.'s foster parents and proved successful in addressing K.M.M.'s behavioral and attachment issues indicates that such services were not only available to J.M., but that the services may have been successful hadthey beentimelyprovidedto J.M. Unlikethe majority, I do notblame J.M.'s misunderstanding ofhis daughter's needs onhis lack ofempathy, but rather on the Department's failure to provide training and services for J.M. to understand and address her unique needs. 3. Mental health Finally, the majority suggests that it would have been futile for the Department to offer additional services because 

### J.M. failed to complete mental health treatment. However, this conclusion is directly contradicted by the trial court's findings. Although the trial court acknowledged J.M. may have had some mental health issues,the court found thathis mentalhealthneeds andtreatmentwere wholly distinct from his parenting capabilities. CP at 107, 121-24, 132. In addition, the trial court repeatedly emphasized that 

### J.M. completed all services offered that

were relevant to his parental deficiencies. CP at 109, 120. Substantial evidence in 11

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) the record supports these findings. Given the unrelatedness ofJ.M.'s mental health andhis successfultrackrecordin all relevant services, Iwouldnotfind the provision of additional services futile. 

### See C.S., 168 Wn.2d at 56 (disavowing the Department's argument that additional services would be futile when biological mother had complied with all offered services, remedied underlying parental deficiencies, and was not offered services that couldhave permittedreunification). 4. Conclusion I cannot agree thatthe Department fulfilled its burden ofproviding necessary services under RCW 13.34.180(1)(d) by showing that additional services would be futile due to J.M.'s empathy or mental health issues. Despite all efforts on J.M.'s part, the court has terminated parental rights because the severed parent-child relationship between K.M.M and J.M. is now beyond repair. I am very concerned that K.M.M.'s detachment from her father was exacerbated by the Department's failure to provide necessary services in a timely manner. However, I recognize that under the express terms ofRCW 13.34.180(1)(d), necessary services must be "capable ofcorrecting parental deficiencies 

### within the foreseeablefuture." (Emphasis added.) At the termination proceeding, testimony from the mental health experts and other witnesses consistently agreed thatthe lack ofattachmentbetweenJ.M. and K.M.M. was so severe thatthere were no longer any services available that could promote reunification. 

### See CP at 108 (noting the 12

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, J. (concurring) "severed" parent-child attachment bond and stating, "Everyone has agreed and testified that there is no reasonable probability that reunification therapy, or any other kind of therapy, can remedy this situation within the foreseeable future"). Based on the language of RCW 13.34.180(1)(d), which requires "necessary services" to be capable ofremedying deficiencies "within the foreseeable future," coupled with the consistent agreement that no services could repair the attachment bond once it was severed, I must reluctantly affirm the termination order. Despite the Department's failure to provide essential services at atime whenthey couldhave helped promote reunification, I cannot ignore the legislature's choice to include the term "within the foreseeable future" with its definition of"necessary services" and the reality thatthere are no longer any services that could correctthe severedparentchild bond. Therefore, I must ultimately concur in the majority's decision to affirm the termination order, but not without emphasizing J.M.'s commendable efforts in attempting reunification and expressing my frustration and disappointmentwith the Department's failure to provide essential reunification and attachment services at a time when they may have preserved and strengthened the now failed bond between K.M.M. and J.M.

13

### In re ParentalRights to K.MM, No. 91757-4 Fairhurst, 

### J. (concurring)

14