### FILED JUNE 11,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In rethe Welfare of: ) No. 32490-7-111 ) ) ) PUBLISHED OPINION KJ.B. ) ) ) LAWRENCE-BERREY, 

### 1. ­ Thetrial courttenninated J.B.'sparental rights to his daughter, KJ.B. J.B. appeals, contending thatthe trial courterred in (1) finding thatthe Department ofSocial and Health Sciences (Department) satisfied the notice requirements ofthe Indian Child WelfareActof 1978 (lCWA), 25 U.S.C. 

### §§ 1901-1963; (2) finding that all necessary services were expressly and understandably offered orprovided; (3) failing to consider the amended language ofRCW 13.34.180(1)(f) applicable to an incarceratedparent; and (4) finding that it was inKJ.B.'sbest interests totenninate J.B.'s parental rights. We agree withJ.B.'sthird contention, but detenninethatthe errorwas harmless, andwe disagree withhis other contentions. We therefore affinn.No. 32490-7-1I1 

### In re Welfare of K.JB.
FACTS The Departmentreceived a referral for KJ.B. on April 20, 2012, the day she was born. The referral was based on the mother testing positive for methamphetamine one month prior to her daughter's birth. Because ofthe mother's methamphetamine and cigarette use, K.J.B. has asthma and reactive airway disease. She is required to use a nebulizer almost every day. Her condition requires that her caregiverbe vigilant concerning the odors and environmentto which she is exposed. Her caregivermust immediately take action ifKJ.B. shows any signs ofbreathing difficulties. The Department filed a dependency petition for KJ.B. on April 24, 2012. By court order, the Department originallyplaced KJ.B. with a relative but soon aftermoved herto foster care placement. On October 22, 2012, the court held a dispositional hearing and entered an order ofdependency. The orderreaffirmed KJ.B.'splacement in foster
care. The order also required J.B. to complete the following services and to follow providerrecommendations: drug and alcohol evaluation and treatment, random urinalysis (UA) testing, and parenting assessment and instruction. 

### Drugandalcoholevaluation andtreatment. J.B. completed a drug and alcohol evaluation on May 6, 2013. The evaluation revealed methamphetamine dependence and nicotine dependence, and the recommendation was intensive inpatient treatment. lB. was
2

### No. 32490-7-III In re Welfare of K.J.B.


### scheduled to enter inpatient treatment on May 20, 2013, but he did not do so. In June 2013, he started intensive outpatient treatment. J.B. participated in the outpatient treatment program in July and August 2013 but then left the program due to a relapse. On September 12, 2013, he entered an intensive inpatient treatment program but left the program without completing it on September 21,2013. lB. stated he left the intensive drug treatmentprogram because he was "uncomfortable with the fact that [he] was ... getting sober
... and
... dealing with [his] issues
... instead ofus[ing] drugs to mask them," which he was not ready to do at that time. Report ofProceedings (RP) at 13. On December 18,2013, J.B. wentto detox and planned to begin inpatient treatment after finishing detox. He only stayed at detox for four days and did not go to inpatient treatment. He madeno other attempts to obtain drug addiction treatment before he was incarcerated on January 24,2014. Random UA testing. 

### IB. was ordered to provide random 

### VA tests five times per month beginning in January 2013. lB.provided sixrandom 

### VAs duringthis time: one permonth in February, March, May, and August, and two in April. Four ofthese tests
were negative, while two were positive. Parentingassessment. 

### J.B. completed a parenting assessment and participated in parenting instruction with parenteducatorEsteban Cabrera in July and August 2013. In a
3No. 32490-7-II1 In re Welfare of K.J.B. report dated September 9,2013, Mr. Cabrera recommended thatJ.B. complete inpatient substance abuse treatment, individual and couple's counseling once he completed the inpatienttreatment, and consistent visitation with KJ.B. Because Mr. Cabrera recommended completion ofsubstance abuse treatment first, the Department did not make referrals for counseling services at thattime. Social worker SonnyLaform, whowas assigned to the case in October 2013, referred J.B. to Catholic Family and Child Services for individual and family counseling
on December 18,2013. This referral coincided with J.B.'s entry into detox and plan to go to inpatient treatment thereafter. J.B. did not completethe referral for counseling. Parental visits. J.B. participated in visits with KJ.B. in January 2013 and regularly from March 2013 to January 2014, missing only a few visits within that time period. Incarceration. On January 24,2014, J.B. was found guilty offirst degree unlawful possession ofa firearm and possession ofa stolen firearm. He was sentencedto 74 months ofincarceration. Hewas incarcerated at the time ofthe March 2014 termination trial. While incarcerated, J.B. never sought contact with KJ.B. norcontactedMr. Laform to ask about KJ.B.

4No. 32490-7-111 In re Welfare of KJB.
ICWA notices. KJ.B.'s mother indicated she is Native American and identified herselfas having Cherokee, Hopi, and Cree ancestry. J.B. submitted a declaration stating he has Blackfoot ancestry through his father, and he gave his father's name and date of birth. His declaration also stated that his great, great grandmotherwas full-blooded Cree, but he did notknow her name or date ofbirth. The Departmentprepared a Family Ancestry Chart. The chart failed to identify J.B. orhis father as having Blackfoot ancestry. TheDepartment submittednotice ofthe pendency ofparental termination proceedings to various Cherokee, Cree, and Hopi tribes. No notice was sent to the Blackfoot tribe. Accompanying each notice was the before-described FamilyAncestry Chart. For each notice sent to an individual tribe, the Departmentprovided a copy to the Bureau ofIndianAffairs (BIA). TheDepartment did not receive any response from the various tribes orthe BIA. The Department filed a termination petition on May 8, 2013. The case proceeded to a termination trial on March 17-18, 2014. One month prior to trial, KJ.B.'smother consented to an orderterminating herparental rights to her daughter. Atthe time oftrial, KJ.B. had been in a safe and stable foster care home for 22 months, andhad an opportunity for adoption into a permanent family with her foster parents.

5No. 32490-7-II1 

### In re Welfare of KJB.
J.B. testified at trial that he was not going to be available to KJ.B. in the near future due to his incarceration. He estimatedhis early release date from prisonwasjust under four years from the time oftrial. J.B. acknowledged that he still needs drug treatment and stated that he is now ready to get treatment. He stated that no parent should be under the influence ofdrugs while raising a child andthat using drugs has an impact
on the ability ofa parenttoprovide a stable and permanent home for a child. He also testified that he triedto keep in contact with the Department as much as possible throughout the dependency, while working twojobs and battling his drug addiction. Cristy Benge, who conducted 

### 1.8.'s original drug and alcohol evaluation, testified thatJ.B. is still in need ofsubstance abuse treatment. Social worker MarcinnaHeine-Rath, assigned to the case from February 2013 

### to October 2013, 

### testified thatpriorto leaving intensive inpatienttreatment in September 2013, 

### J.B. "seemedmotivated to do what was in the best interest for his daughter" and "[h]adbeen making [the] most ofhis visits." RP at 75. She testified that after leaving treatment, J.B. reportedthat he had been goingto Alcoholics Anonymous meetings and connectingwith his sponsor. Ms. Heine-Rath observed several visits between J.B., KJ.B, and KJ.B.'smother, and one visit betweenJ.B. and KJ.B. only. She testified the visits went well, with the
6No. 32490-7-III In re Welfare of K.JB. parentsplaying with K.J.B. and interacting with her. Ms. Heine-Rath testified she felt K.lB.'s motherwas a trigger for J.B. and his sobriety. Atthe time oftrial, J.B. was still in a relationship with K.J.B.'s mother. When asked why she did not make a referral for J.B. to do individual counseling afterreceiving Mr. Cabrera'sreport, Ms. Heine-Rath testified, "Therecommendation was for [J.B.] to complete [counseling] after he successfully completed his inpatient treatment." RP at 103. She stated that iflB. had completed inpatient treatment, she would have made a recommendation for individual orcouple's counseling. Finally, Ms. Heine-Rath testified she believes continuation ofthe parent-child relationship diminishes K.J.B.'sprospects for early integration into a stable and permanenthome because K.J.B. needs the security ofa permanenthome. She also stated that termination oflB.'sparental rights is in K.J.B.'s best interest so that K.J.B. can
move on and be a legal part ofher foster family. Mr. Cabrera also testified at trial, stating J.B.'s parenting questionnaire showedhe "has some common sense as far as whatparenting is and whatyou should do." RP at 124. Mr. Cabrera observed one visit betweenboth parents and K.J.B. and testified lB.
was nurturing and loving toward KJ.B., showing compassion and sensitivity toward her. However, he described the bond between them as "[d]istant." RP at 138. J.B.'s
7No. 32490-7-III In re Welfare of K.J.B.
interaction with KJ.B. was minimal, standing back and allowing the motherto parent KJ.B., because he did not wantto "further stress" the child. RP at 137. Mr. Cabrera also testified that "in talking with [J.B.] and identifYing stresses in his life, it turned more [into] an individual counseling session than it did into aparenting instruction." RP at 122. He stated J.B.'shealth questionnaire indicated some stress in his life, including substance abuse and his relationship with KJ.B.'s mother. Mr. Cabrera also stated J.B.'srelationship with KJ.B.'smotherwas one ofthe triggers in his life. He described

### J.R's family history as "[v]ery harsh, very physical, had a lot ofabuse, parents weren'tvery instructive, wasn'traised in a structured home, parents didn'tprovide him with any boundaries or limits." RP at 123. As to his recommendation for couple's counseling, Mr. Cabreratestified he did not specifY an exacttime for J.B. to startbutthat he "encouragedhimto start as soon as possible." RP at 139. He statedthere may be some benefit for a person starting couple's counseling while actively using methamphetamine, but that itwouldnotbe as effective. Finally, Mr. Cabreratestified that generally speaking, it is normal for substance abuse and mental health issues to occur simultaneously, and that a mental health issue can sometimes be a precipitating eventto substance abuse. Additionally, he stated it is not
uncommon for peoplewith mental health issues to self-medicate by using street drugs.


### 8No. 32490-7-II1 In re Welfare of K.J.B.
Mr. Lafonntestified that he made the referral for individual and family counseling
so that those services would be available to lB. afterhe completed his inpatient substance abuse treatment. He also testifiedthat his referral for counseling services asked the serviceproviderto do a mental health intake or assessment so "thepractitioner could properly diagnose ifhehad any sort ofmental health diagnosis that might be affecting his behaviors or leading him to using drugs and alcohol." RP at 199. He testified this requestwas made because he believed "itwas importantthat ifin fact there was a cooccurring issue that we could address it." RP at 199. However, he believedJ.B. should take substantial steps in his substance abuse treatmentpriorto the mental health intake beingconducted. A mental health assessment was never court ordered, and Mr. Lafonn had no reason to believe the father had a mental health issue orco-occurring disorder. Mr. Lafonn testified that overall lB. had a "semi-engagement" in his courtordered services because he had not followed through withhis chemical dependency treatment. RP at 184. He also stated lB. was "wonderful" in maintaining contactwith the Department, but that lB. has not contacted him since his incarceration in January 2014. RP at 184-85. However, Mr. Lafonn admitted he does not accept collect calls, he did notprovide J.B. with preaddressed stamped envelopes so he could communicate with him, and he assumed J.B. hadhis address available to him while incarcerated.
9

### No. 32490-7-111 

### In re Welfare ojK.JB.
Mr. Lafonntestified that hebelieved continuation ofthe parent-child relationship diminishes K.1.B.'s prospects for early integration into a stable and pennanenthome because it would be a disruption to K.1.B.'s integration into her current foster family. Additionally, he stated that tennination ofJ.B.'s parental rights is in K.1.R'sbest interests so that she can stay in her currenthome, be adopted by her current foster family, and move forward in her life. Guardian ad litem Mischa Theall testified thattennination ofJ.B.'s parental rights
was in K.J.B.'s best interests based on her need for pennanency. Ms. Theall did not observe J.B. and K.J.B. together. At the close oftrial, thetrial court entered an oral ruling and also written findings offact and conclusions oflaw tenninatingJ.B.'s parental rights. In ordering tennination, the court found thatthe Department offered J.B. all necessary services. The court also found that all elements ofRCW 

### 13.34.180 had been established by clear, cogent, and convincing evidence. Finally, the court found that lB. was unfit to parent and that tennination was in K.1.B.'s best interests. In makingthese findings, the court noted that there was no evidence ofJ.B. having a mental health issue requiring a mental health assessment orcounseling, and even ifthere was a potential mental health issue, experts agreed lB.'s drug addiction needed to be addressed first. The court also noted that lB.'s


### 10

### No. 32490-7-III In re Welfare 

### of KJB.


### incarceration will make him unavailable for an extendedperiod oftime to engage in services or to parent KJ.B. 

### lB. appeals. ANALYSIS Where the trial courthas weighed the evidence, appellate review is limited to determining whetherthe court's findings offact are supported by substantial evidence and whetherthose findings support the court's conclusions oflaw. In re Dependency 

### of P.D., 

### 58 Wn. App. 18,25,792 P.2d 159 (1990). "Evidence is substantial ifit is sufficient to persuade a fair-minded person ofthe truth ofthe declared premise." In re Welfare 

### ofSJ, 162 Wn. App. 873, 881,256 P.3d 470 (2011). When deciding whether substantial evidence supports the findings offact, the appellate court must consider'" the degree of proofrequired.'" In re Dependency 

### of A.MM, 182 Wn. App. 776, 785-86, 332 P.3d 500 (2014) (quotingP.D., 

### 58 Wn. App. at 25). Fortermination proceedings, the burden is "clear, cogent, and convincing evidence." 

### A.MM, 182 Wn. App. at 784-85. Thus, "the question on appeal is whether there is substantial evidence to support the findings in light ofthe highlyprobabletest." P.D., 

### 58 Wn. App. at 25. Unchallenged findings are verities
on appeal. In re Mahaney, 

### 146 Wn.2d 878, 895,51 P.3d 776 (2002). Finally, the trial

11

### No. 32490-7-II1 

### In re Welfare 

## 0/ K.JB.
court's credibility determinations receive deference on appeal from an order terminating parental rights. 

### A.MM, 182 Wn. App. at 786. 

### 1. Whether the Departmentsatisfiedthe ICWA notice requirements lB. contends that the trial court erred in finding that the Department complied with the notice requirements ofthe ICWA. He argues the Department should have notified the Blackfoottribe ofthe termination proceedings. He also argues that the Department's failure to comply with ICWA's notice requirements resulted in the trial court lackingjurisdictionto hear the termination proceeding. The ICWA grants tribes the right to intervene in state court custody proceedings involving an "Indian child." 25 U.S.C. § 

### 1911(c); 

### see also RCW 13.38.090. The statute defines "Indian child" as "any unmarriedperson who is under age eighteen and is either (a) a member ofan Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child ofamember ofan Indian tribe." 25 U.S.C. § 1903(4); 

### see also RCW 13.38.040(7). The Department must notifY "the Indian child's tribe" or the BIAI of

1

### The BIA must be notified ifa tribe's identity or location cannot be determined. 25 U.S.C. § 

### 1912(a). "Underthe interpretive regulations, notice ofthe termination proceeding shall be sent to the appropriate BIAAreaDirector under the Secretary ofthe Interior." 

### In re Welfare o/MS.S., 86 Wn. App. 127, 136,936 P.2d 36 (1997) (citing 25 C.F.R. § 

### 23.11(b)). More specifically, for proceedings in Washington State, "the regulations require that notice be sent to the Portland, Oregon BIA office." 

### Id. (citing 25 C.F.R. § 

### 23.11(c)(11)). 12No. 32490-7-111 

### In re Welfare of K.J.B.
suchpendingproceedings and thetribe's right to intervene "wherethe court knows or has
reason to knowthat an Indian child is involved." 25 U.S.C. 

### § 1912(a); 

### see also RCW 13.38.070(1). However, only federally recognized tribes2 are entitled to § 1912(a) notice. 

### In re Welfare ofL.N.B.-L., 157 Wn. App. 215, 239,237 P.3d 944 (2010). "The State has the burden ofprovingthatthe notices sent complied with the ICWA." 

### In re Dependency of 

### E.s., 92 Wn. App. 762, 771, 964 P.2d 404 (1998). Here, the parties agree that there was reason to know KJ.B. could be an Indian child. On February 12,2014, lB. submitted a declaration statinghe has Blackfoot and Cree ancestry. KJ.B.'s mother also indicated she is Native American. The Department submitted notice oftermination proceedings to several Cherokee, Cree, and Hopi Indian tribes, and provided copies ofthese notices to the BIA as well. The Department did not receIve any responses.

2The ICWA defines "Indian tribe" as "any Indian tribe, band, nation, or other organized group or community ofIndians 

### recognizedas eligiblefor services providedto Indians by the Secretary because oftheir status as Indians." 25 U.S.C. 

### § 1903(8) (emphasis added). A list of"Indian Entities Recognized and Eligible To Receive Services From the United States Bureau ofIndianAffairs" is publishedyearly in the Federal Register. 

### See Indian Entities Recognized and Eligible ToReceive Services From the United States Bureau ofIndianAffairs, 80 Fed. Reg. 1942-48 (Jan. 14,2015). 13No. 32490-7-III 

### In re Welfare of K.JB.
Theparties disagree as to whether the Department was required to notify the Blackfoottribe oftheproceedings. The Department contends it did not notify the Blackfoot tribe becausethe Blackfoottribe is not federally recognized3 and is "different and distinguishable" from the Blackfeettribe, which is federally recognized. Response to Motion for Accelerated Review at 19. This court's other two divisions have decided cases with similar issues where a party claimed Blackfoot ancestry and the Department did not notify the Blackfoottribe. In Division Two's decision, 

### Welfare of L.N.B.-L., the court determined the record contained insufficient evidence "to demonstrate thatthe 'BlackFoot out ofthe Algonquin Nation' refers to the federally-recognized Blackfeet Tribe ofthe Blackfeet Indian Reservation ofMontana." 157 Wn. App. at 238 n.20. Because the Department failed to notify the Cherokee and "BlackFoot" tribes, the court remanded for proper notice to both. Id. at 238. However, becausethe identity ofthe "BlackFoot" tribe was not clear from the record, the court stated the Department "should, on remand, notify the Portland
area director ofthe [BIA] ofthe termination orders." Id. at 238 n.20. In Division One's decision, 

### In re Dependency of JA.F, the court determined the record was sufficient where the Departmentprovided general notice to the BIAthat the

3 The Federal Register only lists the Blackfeet Tribe ofthe Blackfeet Indian 14

### No. 32490-7-111 

### In re Welfare of K.J.B.
actionpossibly involved "Indian children" without listing any affiliation with a particular tribe, and the BIAresponded, '" The child was determined to be non-Indian by Superior Court: therefore the Indian Child Welfare Act of 1978 does not apply. Do not 

### send future notices.'" 168 Wn. App. 653, 664-65, 278 P.3d 673 (2012) (emphasis in original). The Departmentreceived this response from the BIA prior to trial. Then, on the first day of trial, the children's mother testified that she possibly had "Barefoot"tribe ancestry but later stated it could have been Blackfoot instead. 

### Id. at 665. The Department investigated the matter by contacting the party's father but did not send any further notices to tribes or to the BIA based on the mother's testimony. 

### Id. Nonetheless, the court found the Department's general notice to the BIA sufficient to fulfill its obligation under ICWA. 

### Id. at 666. In this case, J.B. concedes that the Department was required to notifY only federally recognizedtribes. The Department cites Indian Entities Recognized and Eligible To Receive Services From the United States Bureau ofIndian Affairs, 79 Fed. Reg. 4748-53 (Jan. 29, 2014) to support its assertion that the Blackfeet tribe is federally recognized but the Blackfoottribe is not and that the two are distinct tribes. J.B. does not contest this assertion. Nor do we find any evidence in the record to contest the
Reservation ofMontana. Indian Entities Recognized and Eligible, 80 Fed. Reg. at 1943. 15

### No. 32490-7-III In re Welfare of K.JB. 

### Department's assertion. Becausethe record is clear that the Blackfoot tribe is not a federally recognized tribe and because there is no evidencethat J.B. was confused concerning the two tribes, the Department was notrequired to notifY either the unrecognizedBlackfoot tribe orthe recognized Blackfeettribe ofthis proceeding. The Departmenttherefore complied with the ICWA notice requirements. 2. Whether allnecessaryservices were expresslyandunderstandably offeredor provided 

### When deciding whetherto terminate the parental rights ofa parent, Washington courts apply a two-step process. In re Welfare of A.B., 

### 168 Wn.2d 908,911,232 P.3d 1104 (2010). "The first step focuses on the adequacy ofthe parents" and requires the Departmenttoprove, by clear, cogent, and convincing evidence, the six termination factors set forth in RCW 13.34.180(1).4 Id. 

### '''Clear, cogent and convincing' means
4The six termination factors thatthe Department must prove in a termination hearing are: (a) That the child has been found to be a dependent child; (b) That the court has entered a dispositional orderpursuantto RCW 13.34.130; (c) That the child has been removed or will, atthe time ofthe hearing, have been removed from the custody oftheparent for a period of at least six months pursuant to 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 16No. 32490-7-III 

### In re Welfare of K.JB. highly**probable.~'** 

### In re Welfare**ofMR.H.~** 145 Wn. App. 10,24,188 P.3d 510 (2008). If the Department meets its burden as to the sixtermination factors, "thetrial court must find by a preponderance ofthe evidencethattermination is in the best interests ofthe child." 

### Id. (citing RCW 13.34.190(2)). Only ifthe first step is satisfied may the court reach the second step. A.B., 168 Wn.2d at 911. J.B. asserts that the Departmentdid not timely offer orprovide him with individual counseling, couple's counseling, and a mental health assessment. To satisfy its statutory burdenunderRCW 13.34. 180(l)(d), the Department must offer orprovide "all necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future." A service is "necessary" if

### it is needed to address a condition that understandably offered orprovided; (e) Thatthere is little likelihood that conditions will be remedied so that the child canbereturned to the parent in the near future. 

### (0 That continuation oftheparent and childrelationship clearly diminishes the child'sprospects for early integration into a stable and permanenthome. Ifthe parent is incarcerated, the court shall consider whether a parentmaintains a meaningful role in his orher child's life based on factors identified in RCW 13.34.145(5)(b); whetherthe department or supervising agency made reasonable efforts as defined in this chapter; and whetherparticularbarriers existed as described in RCW 13.34.l45(5)(b) including, but not limited**to~** delays orbarriers experienced in keeping the agency apprised ofhis orher location and in accessing visitation or other meaningful contact with the child. RCW 13.34.180(1). 17

### No. 32490-7-III 

### In re Welfare of K.JB. precludes reunification ofthe parent and child. 

### In re Welfare ofes., 168 Wn.2d 51, 56 nJ, 225 P.3d 953 (2010). The Departmentmust tailor the services offeredto the individual's needs. 

### In re Dependency ofTR., 108 Wn. App. 149, 161,29P.3d 1275 (2001). However, because RCW 13.34.180(1)(d) limits the services required to those capable ofremedying parental deficiencies in the "foreseeable future," the trial court can find that the Department offered all reasonable services "[w]herethe record establishes that the offer of[other] services would be futile." 

### MR.H, 145 Wn. App. at 25. J.B. contends that the Department's three-month delay in referring him to individual counseling, couple's counseling, and a mental health assessment made the referrals untimely. He also argues that the delay in providing these services was inconsistent with parent educatorEsteban Cabrera's recommendation. Hepoints to Mr. Cabrera's testimonythat he encouraged 

### lB. to start counseling as soon as possible and also 

### Mr. Cabrera'srecommendation that 

### lB. 

### "continues [sic] to participate in ongoing individual and couple's therapy to address unresolved issues oftrauma related symptoms (i.e. rejection, guilt, etc.), afterhis successful completion ofinpatienttreatment." Ex. 6 (Parenting Assessment Summary for J.B. dated Sept. 9, 2013) (emphasis added). 

### lB. 's arguments are not supported by substantial evidence. Social worker Marcinna Heine-Rath testified that she did not make a referral for counseling services
18No. 32490-7-II1 In re Welfare of KJB.
after receiving Mr. Cabrera's report because she believed Mr. Cabrera's recommendation
was for 1.B. to complete counseling after he successfully completed his inpatient drug treatment. Mr. Cabrera testified he did not specifY a time for 1.B. to start counseling services in his written recommendations. And while 1.B. focuses on the "continues" verbiage ofthe recommendation, he ignores the clause "afterhis successful completion of inpatient treatment" at the end ofthat same sentence. Thus, the evidence presented at trial confirms that the Department acted consistent with Mr. Cabrera's recommendations to wait to make the referrals for counseling. Afterhearing this evidence, the trial court found "[t]he assessment recommended that the father complete drug/alcohol in-patient treatment, participate in individual and couples counseling once he completedin-patient treatment." CP at 20 (emphasis added). "Because the trial court has the opportunity to hearthe testimony and observe the witnesses, its decision is entitled to deference." 

### SJ, 162 Wn. App. at 881. Consequently, the trial court's credibility determinations receive deference on appeal from an orderterminating parental rights. A.MM, 182 Wn. App. at 786. Substantial evidence supports the trial court's finding as to the timing ofthe referral for counseling services.

19No. 32490-7-II1 In re Welfare of KJ.B.
J.B. also contends that the counseling and mental health assessment were necessary services for correcting his identifiedparenting deficiency ofsubstance abuse and thus should have been offered concurrently with his substance abuse treatment. J.B. argues the evidence demonstrated he has trauma-related health issues that are cooccurring with his substance abuse. Forhis assertion that he has mental health issues co-occurring with his substance abuse, 

### lB. references testimonyby Mr. Cabrera and social worker Sonny Laform that mental health issues can lead to substance abuse and that they can be co-occurring issues. He also cites Mr. Cabrera'stestimony that itis not uncommon for people with mental health issues to self-medicate by using street drugs. However, the record indicates both witnesses were testifYing generally about co-occurring mental health issues and drug use, ratherthan specifically as to 

### lB. lB. also relies on S.1., 162 Wn. App. 873. There, the trial court's dispositional order required the motherto complete, among other services, substance abuse evaluation and treatment and mental health services. Id. at 876. The Department knew that the mother suffered from mental illness and substance abuse issues but failed to adequately provide integrated mental health and·drug treatment services. Id. at 881-82. The S.J. court noted the legislative finding that co-occurring mental health and drug dependency
20No. 32490-7-II1 

### In re Welfare of KJ.B.
issues are bestresolved when treatment ofboth issues is integrated. 

### Id. at 882. Based on this finding, the 

### s.J. courtheld that the Department failed to tailor the services to the parent's needs. 

### Id. s.J. is distinguishable from this case. J.B.'s court-ordered services were drug and alcohol evaluation and treatment, random UAtesting, and parenting assessment and instruction. A mental health assessment and mental health counseling were never ordered. Additionally, none ofthe social workers involved in the case testified that J.B. had a mental health issue that required evaluation or services. Mr. Cabrera testified that during his sessions with J.B., J.B. indicated he had a difficult childhood and also identified several stressors in his life, including his substance abuse and his relationship with K.1.B.'s mother. However, Mr. Cabrera did not recommend a mental health evaluation ormental health services. He only recommended counseling. Mr. Laform was the only person to recommend a mental health assessment. Hetestified that his December 18, 2013 referral for counseling services asked the service providerto do a mental health intake or assessment so "thepractitioner couldproperly diagnose ifhe had any sort ofmental health diagnosis that might be affectinghis behaviors or leadinghim to using drugs and alcohol." RP at 199. But Mr. Laform also stated he had no reason tobelievethat J.B. had a mental health issue or co-occurring
21No. 32490·7·III In re Welfare of 

### K.JB.
disorder. Thus, the trial court's finding that there was no evidence ofJ.B. having a mental health issue requiring a mental health assessment or treatmentwas supported by substantial evidence. J.B. next argues that had the Department made referrals for counseling services earlier, the services would not have been futile. The record contradicts this argument. Mr. Laform testified he believed J.B. should take substantial steps in his substance abuse treatment prior to the mental health intake being conducted. He also testified that overall 

### lB. had a "semi·engagement" in his court·ordered services because he had not followed through with his chemical dependency treatment. RP at 184. Relatedly, the trial court entered findings that: 1.20 The father has not been able to demonstrate sobriety for any significantperiod oftime, despite beingprovide [sic] ample time and opportunity to do so. He has engaged in criminal activity due to his addiction. He described how his drug addiction impacted
...him and his family and made him unavailable to parent. . .. He has attempted treatment multiple times and has failed. 1.21
... The father has a substance abuse addiction and continues to struggle with sobriety. Hehas not been able to complete treatment and continues to relapse. Although he indicates he is ready for treatment at this time, he will be incarcerated for up to 74 months and will notbe able to complete services in the near future. He still needs to complete treatment and demonstrate his ability to maintain sobriety once he is released from incarceration. The near future for the child is a few months, not years. The father's needs far exceed the near future timeframe for the child.

22No. 32490-7-II1 In re Welfare of K.J.B.
CP at 21. The trial court ultimately found that all necessary services reasonably available had been offered, and that**~~[t]here** is little likelihood that conditions will beremedied so that the child can be returned to her father in the near future." CP at 21. J.B. does not challenge these findings offact, and the court's unchallenged findings are verities on appeal. Mahaney, 146 Wn.2d at 895. Additionally, these findings
are supported by substantial evidence, and they support the conclusion that this termination factor was satisfied. J.B. admitted at trial that he was not going to be available to KJ.B. inthe near future due to his incarceration. He estimated his early release date from prison wasjustunder four years from the time oftrial. He acknowledged that he still needs drug treatment and stated that he is now ready to get treatment. Thus, the record establishes that the offer ofcounseling services or a mental health assessment any earlier in the dependency would have been futile because ofhis continued drug use. The trial court's finding that the services ordered under RCW 13.34.136 had been expressly and understandably offered orprovided and all necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future had been expressly and understandably offered orprovided is supported by substantial evidence.
23No. 32490-7-II1 In re Welfare of K.J.B. 

### 3. Whether continuation of theparent-childrelationship diminishedK.J.B. 's prospects for early integration into a stable and permanent home 

### lB. contends thatthe Department failed to prove all the necessary elements to show that continuation ofhis relationship with KJ.B. clearly diminishes herprospects for early integration into a stable andpermanent home. Specifically, he argues thatthe trial court failed to consider the 2013 amendment to RCW 13.34.180(1)(t) regarding incarceratedparents. The 2013 amendment at issue in this case is emphasized here: That continuation ofthe parent and childrelationship clearly diminishes the child'sprospects for early integration into a stable andpermanenthome. 

## If theparent is incarcerated, the courtshallconsiderwhetheraparent maintains a meaningfulrole in his orher child's life basedon factors identifiedin RCW13.34.145(5)(b); whether the department orsupervising agencymade reasonable efforts as defined in this chapter,' andwhether particular barriers existedas described in RCW13.34.145(5)(b) including, butnot limitedto, delays or barriers experiencedin keeping the agency apprisedof his or her location andin accessingvisitation or other meaningful contactwith the child. RCW 13.34.180(1)(t) (emphasis added). This new language references RCW 13.34.145(5)(b), whichprovides a nonexhaustive list ofsix factors the courtmay also consider as part ofits "meaningful role" assessment. These factors include: (i) Theparent's expressions or acts ofmanifesting concern for the child, such as letters, telephone calls, visits, and other forms of communicationwith the child;
24No. 32490-7-III In re Welfare of K.J.B. (ii) The parent's efforts to communicate and workwith the department or supervising agency or other individuals for the purpose of complying with the serviceplan and repairing, maintaining, orbuilding the parent-child relationship; (iii) A positiveresponse by the parenttothereasonable efforts of the department orthe supervising agency; (iv) Information provided by individuals or agencies in a reasonable positionto assistthe court in makingthis assessment, including but not limited to theparent's attorney, correctional and mental health personnel, or other individuals providing services to theparent; (v) Limitations in theparent's access to family supportprograms, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability toparticipate in foster careplanning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and (vi) Whetherthe continued involvement oftheparent in the child's life is inthe child's best interest. RCW 13.34.l45(5)(b). The statute's legislativehistory suggests the purposes ofthe 2013 amendment are to assure that a parent's incarceration shouldno longertip the balance toward termination, and to require courts to make individualized determinations when deciding whether an incarcerated person'sparental rights should beterminated. SUBSTITUTE 

### H.B. 1284, 63d Leg., Reg. Sess. (Wash. 2013). In support ofhis argument that the trial court erred, J.B. relies onA.MM In A.MM,Division One ofthis courtreversed a termination order because there was no evidence intherecord that the trial court consideredthe 2013 amendmentto
25No. 32490-7-II1 

### In re Welfare of K.J.B.
RCW 13.34.180(1)(f). 

### A.MM, 182 Wn. App. at 786-87. There, the father was incarcerated for all but a month and one-halfofthe dependency. 

### Id. at 780. The Department attempts to distinguish

### A.MM by arguing that here the incarceratedparentwas incarcerated for only 51 days at the end ofthe entire dependency. The Department's argument would be persuasive but for the mandatory language contairied in the amended statute. RCW 13.34.180(1)(f) provides that "[

### i]f theparent is incarcerated, the court 

### shall consider" three factors. (Emphasis added.) The first is whethertheparent "maintains a meaningful role in his orher child's life," the second is whethertheDepartmentmade reasonable efforts to remedy the parental deficiencies, and the third is whetherbarriers ofincarceration interferedwith the parent's efforts to maintain meaningful contactwiththe child and participate in required assessments, services, and court proceedings. The amended statute does not contain an exception to the mandatory language. We therefore will not imply one. Nevertheless, a failure to weigh the required considerations will not require reversal ifthe State's case is strong or ifthe factors are not contested. 

### In re Termination ofMJ. & 

### MJ., Nos. 3232l-8-III, 32322-6-III; 2015 

### WL 1945057, at *5 (Wash. Ct. App. Apr. 28, 2015). Here, once incarcerated, J.B. made no effort toplayameaningful role in his daughter's life. The record also establishes that the
26

### No. 32490-7-II1 In re Welfare of K.J.B. 

### Department made reasonable attempts to remedy lBo'sparental deficiencies. Finally, there is no evidence thatbarriers ofincarceration impacted lBo's ability to maintain meaningful contact with his daughter nor is there evidence that barriers of incarceration impacted J

### .B.'srequired assessments, services, orhis ability to participate in court proceedings. Therefore, unlikeA.MM, 

### we concludethat the trial court's failure toweigh the required considerations was harmless error, which does not require reversal. 4. Whether itwas in K.J.B. 's best interests to terminate J.B. 'sparentalrights 

### lB. argues that the trial court erred when determining 

### itwas in his daughter's best interests to terminate his parental rights. He argues that the trial court erred in determining this second step without first requiring the Departmentto establishthe six elements ofthe first step. The best interests analysis is the second step in a two-step process for termination proceedings. In re Welfare of A.B., 

### 168 Wn.2d 908, 911, 232 P3d 1104 (2010). The court may only reach this second step ifthe first step-review ofthe sixtermination factors listed above-is satisfied. Id. 

### The court must find by a preponderance ofthe evidence that termination is in the child's best interests. MR.R, 

### 145 Wn. App. at 24

27

### No. 32490-7-1II In re Welfare of K.JB. (citing RCW 13.34.190(2)). "[1]t is 'premature' for the trial courtto address the second step before ithas resolved the first." A.B., 

### 168 Wn.2d at 925. Because we resolved the first step in favor ofthe Department, and because the factual record firmly establishes the second step, we affirm the trial court's determination that it was in the best interests ofKJ.B. to terminate J.B.'s parental rights.

Lawrence-Berrey, J. WE CONCUR:

Brown, A.CJ:

Fearing, J. (



### 28