FILED 


JUNE 11,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


In re the Welfare of: ) No. 32490-7-111 

) 

) 

) PUBLISHED OPINION 

KJ.B. ) 

) 

) 

LAWRENCE-BERREY, 1. ­ The trial court tenninated J.B.'s parental rights to his 

daughter, KJ.B. J.B. appeals, contending that the trial court erred in (1) finding that the 

Department of Social and Health Sciences (Department) satisfied the notice requirements 

ofthe Indian Child Welfare Act of 1978 (lCWA), 25 U.S.C. §§ 1901-1963; (2) finding 

that all necessary services were expressly and understandably offered or provided; 

(3) failing to consider the amended language ofRCW 13.34. 180(1)(f) applicable to an 

incarcerated parent; and (4) finding that it was in KJ.B.'s best interests to tenninate J.B.'s 

parental rights. We agree with J.B.'s third contention, but detennine that the error was 

harmless, and we disagree with his other contentions. We therefore affinn. 
No. 32490-7-1I1 

In re Welfare ofK.JB. 

FACTS 

The Department received 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 of the 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 caregiver be vigilant 

concerning the odors and environment to which she is exposed. Her caregiver must 

immediately take action ifKJ.B. shows any signs of breathing difficulties. 

The Department filed a dependency petition for KJ.B. on April 24, 2012. By 

court order, the Department originally placed KJ.B. with a relative but soon after moved 

her to foster care placement. On October 22, 2012, the court held a dispositional hearing 

and entered an order of dependency. The order reaffirmed KJ.B.'s placement in foster 

care. The order also required J.B. to complete the following services and to follow 

provider recommendations: drug and alcohol evaluation and treatment, random urinalysis 

(UA) testing, and parenting assessment and instruction. 

Drug and alcohol evaluation and treatment. 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 ofK.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 treatment program because he was "uncomfortable with the fact that [he] was ... 

getting sober ... and ... dealing with [his] issues ... instead of us[ing] drugs to mask 

them," which he was not ready to do at that time. Report of Proceedings (RP) at 13. 

On December 18,2013, J.B. went to 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 made no 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 six random VAs during this time: one 

per month in February, March, May, and August, and two in April. Four of these tests 

were negative, while two were positive. 

Parenting assessment. J.B. completed a parenting assessment and participated in 

parenting instruction with parent educator Esteban Cabrera in July and August 2013. In a 

3 

No. 32490-7-II1 

In re Welfare ofK.J.B. 

report dated September 9,2013, Mr. Cabrera recommended that J.B. complete inpatient 

substance abuse treatment, individual and couple's counseling once he completed the 

inpatient treatment, and consistent visitation with KJ.B. Because Mr. Cabrera 

recommended completion of substance abuse treatment first, the Department did not 

make referrals for counseling services at that time. 

Social worker Sonny Laform, who was 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 complete the 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 of first degree unlawful 

possession of a firearm and possession of a stolen firearm. He was sentenced to 74 

months of incarceration. He was incarcerated at the time of the March 2014 termination 

trial. While incarcerated, J.B. never sought contact with KJ.B. nor contacted Mr. Laform 

to ask about KJ.B. 

4 

No. 32490-7-111 

In re Welfare ofKJB. 

ICWA notices. KJ.B. 's mother indicated she is Native American and identified 

herself as 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 grandmother was full-blooded Cree, 

but he did not know her name or date of birth. The Department prepared a Family 

Ancestry Chart. The chart failed to identify J.B. or his father as having Blackfoot 

ancestry. The Department submitted notice of the pendency of parental termination 

proceedings to various Cherokee, Cree, and Hopi tribes. No notice was sent to the 

Blackfoot tribe. Accompanying each notice was the before-described Family Ancestry 

Chart. For each notice sent to an individual tribe, the Department provided a copy to the 

Bureau ofIndian Affairs (BIA). The Department did not receive any response from the 

various tribes or the 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 order terminating her parental rights to her daughter. At the time of trial, 

KJ.B. had been in a safe and stable foster care home for 22 months, and had an 

opportunity for adoption into a permanent family with her foster parents. 

5 

No. 32490-7-II1 

In re Welfare ofKJB. 

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 estimated his early release date from prison was just 

under four years from the time of trial. 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 of drugs while raising a child and that using drugs has an impact 

on the ability of a parent to provide a stable and permanent home for a child. He also 

testified that he tried to keep in contact with the Department as much as possible 

throughout the dependency, while working two jobs and battling his drug addiction. 

Cristy Benge, who conducted 1.8.'s original drug and alcohol evaluation, testified 

that J.B. is still in need of substance abuse treatment. 

Social worker Marcinna Heine-Rath, assigned to the case from February 2013 to 

October 2013, testified that prior to leaving intensive inpatient treatment in September 

2013, J.B. "seemed motivated to do what was in the best interest for his daughter" and 

"[h]ad been making [the] most of his visits." RP at 75. She testified that after leaving 

treatment, J.B. reported that he had been going to Alcoholics Anonymous meetings and 

connecting with his sponsor. 

Ms. Heine-Rath observed several visits between J.B., KJ.B, and KJ.B.'s mother, 

and one visit between J.B. and KJ.B. only. She testified the visits went well, with the 

6 

No. 32490-7-III 

In re Welfare ofK.JB. 

parents playing with K.J.B. and interacting with her. Ms. Heine-Rath testified she felt 

K.lB.'s mother was a trigger for J.B. and his sobriety. At the time of trial, 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 

after receiving Mr. Cabrera's report, Ms. Heine-Rath testified, "The recommendation was 

for [J.B.] to complete [counseling] after he successfully completed his inpatient 

treatment." RP at 103. She stated that if lB. had completed inpatient treatment, she 

would have made a recommendation for individual or couple's counseling. 

Finally, Ms. Heine-Rath testified she believes continuation of the parent-child 

relationship diminishes K.J.B. 's prospects for early integration into a stable and 

permanent home because K.J.B. needs the security of a permanent home. She also stated 

that termination oflB.'s parental rights is in K.J.B.'s best interest so that K.J.B. can 

move on and be a legal part of her foster family. 

Mr. Cabrera also testified at trial, stating J.B.'s parenting questionnaire showed he 

"has some common sense as far as what parenting is and what you should do." RP at 

124. Mr. Cabrera observed one visit between both 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 

7 

No. 32490-7-III 

In re Welfare ofK.J.B. 

interaction with KJ.B. was minimal, standing back and allowing the mother to parent 

KJ.B., because he did not want to "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 a parenting 

instruction." RP at 122. He stated J.B.'s health questionnaire indicated some stress in his 

life, including substance abuse and his relationship with KJ.B.'s mother. Mr. Cabrera 

also stated J.B. 's relationship with KJ.B. 's mother was one of the triggers in his life. He 

described J.R's family history as "[v]ery harsh, very physical, had a lot of abuse, parents 

weren't very instructive, wasn't raised in a structured home, parents didn't provide him 

with any boundaries or limits." RP at 123. 

As to his recommendation for couple's counseling, Mr. Cabrera testified he did not 

specifY an exact time for J.B. to start but that he "encouraged him to start as soon as 

possible." RP at 139. He stated there may be some benefit for a person starting couple's 

counseling while actively using methamphetamine, but that it would not be as effective. 

Finally, Mr. Cabrera testified 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 event to substance abuse. Additionally, he stated it is not 

uncommon for people with mental health issues to self-medicate by using street drugs. 

8 

No. 32490-7-II1 

In re Welfare ofK.J.B. 

Mr. Lafonn testified that he made the referral for individual and family counseling 

so that those services would be available to lB. after he completed his inpatient substance 

abuse treatment. He also testified that his referral for counseling services asked the 

service provider to do a mental health intake or assessment so "the practitioner could 

properly diagnose if he had 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 

request was made because he believed "it was important that if in fact there was a cooccurring issue that we could address it." RP at 199. However, he believed J.B. should 

take substantial steps in his substance abuse treatment prior to the mental health intake 

being conducted. A mental health assessment was never court ordered, and Mr. Lafonn 

had no reason to believe the father had a mental health issue or co-occurring disorder. 

Mr. Lafonn testified that overall lB. had a "semi-engagement" in his courtordered services because he had not followed through with his chemical dependency 

treatment. RP at 184. He also stated lB. was "wonderful" in maintaining contact with 

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 not provide J.B. with preaddressed stamped envelopes so he could communicate with 

him, and he assumed J.B. had his address available to him while incarcerated. 

9 

No. 32490-7-111 

In re Welfare ojK.JB. 

Mr. Lafonn testified that he believed continuation of the parent-child relationship 

diminishes K.1.B.'s prospects for early integration into a stable and pennanent home 

because it would be a disruption to K.1.B.'s integration into her current foster family. 

Additionally, he stated that tennination of J.B. 's parental rights is in K.1.R 's best 

interests so that she can stay in her current home, be adopted by her current foster family, 

and move forward in her life. 

Guardian ad litem Mischa Theall testified that tennination of J.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 of trial, the trial court entered an oral ruling and also written findings 

of fact and conclusions of law tenninating J .B.' s parental rights. In ordering tennination, 

the court found that the 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 making these findings, the court noted that 

there was no evidence of J.B. having a mental health issue requiring a mental health 

assessment or counseling, 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 ofKJB. 

incarceration will make him unavailable for an extended period of time to engage in 

services or to parent KJ.B. 

lB. appeals. 

ANALYSIS 

Where the trial court has weighed the evidence, appellate review is limited to 

determining whether the court's findings of fact are supported by substantial evidence and 

whether those findings support the court's conclusions oflaw. In re Dependency ofP.D., 

58 Wn. App. 18,25, 792 P.2d 159 (1990). "Evidence is substantial if it is sufficient to 

persuade a fair-minded person of the truth of the declared premise." In re Welfare ofSJ, 

162 Wn. App. 873, 881,256 P.3d 470 (2011). When deciding whether substantial 

evidence supports the findings of fact, the appellate court must consider'" the degree of 

proof required.'" In re Dependency ofA.MM, 182 Wn. App. 776, 785-86, 332 P.3d 500 

(2014) (quoting P.D., 58 Wn. App. at 25). For termination 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 highly probable test." 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 Department satisfied the ICWA notice requirements 

lB. contends that the trial court erred in finding that the Department complied 

with the notice requirements of the ICW A. He argues the Department should have 

notified the Blackfoot tribe of the termination proceedings. He also argues that the 

Department's failure to comply with ICWA's notice requirements resulted in the trial 

court lacking jurisdiction to 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 unmarried person who is under age eighteen and is either 

(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is 

the biological child ofa member of an 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 if a tribe's identity or location cannot be determined. 

25 U.S.C. § 1912(a). "Under the interpretive regulations, notice of the termination 

proceeding shall be sent to the appropriate BIA Area Director 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)). 

12 

No. 32490-7-111 

In re Welfare ofK.J.B. 

such pending proceedings and the tribe's right to intervene "where the court knows or has 

reason to know that 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 of proving that the notices sent 

complied with the ICWA." In re Dependency ofE.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 stating he has Blackfoot and 

Cree ancestry. KJ.B.'s mother also indicated she is Native American. The Department 

submitted notice of termination proceedings to several Cherokee, Cree, and Hopi Indian 

tribes, and provided copies of these notices to the BIA as well. The Department did not 

receIve any responses. 

2 The ICWA defines "Indian tribe" as "any Indian tribe, band, nation, or other 

organized group or community of Indians recognized as eligible for services provided to 

Indians by the Secretary because of their 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 ofIndian Affairs" is published yearly in the 

Federal Register. See Indian Entities Recognized and Eligible To Receive Services From 

the United States Bureau ofIndian Affairs, 80 Fed. Reg. 1942-48 (Jan. 14,2015). 

13 
No. 32490-7-III 

In re Welfare ofK.JB. 

The parties disagree as to whether the Department was required to notify the 

Blackfoot tribe of the proceedings. The Department contends it did not notify the 

Blackfoot tribe because the Blackfoot tribe is not federally recognized3 and is "different 

and distinguishable" from the Blackfeet tribe, 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 Blackfoot tribe. 

In Division Two's decision, Welfare ofL.N.B.-L., the court determined the record 

contained insufficient evidence "to demonstrate that the 'Black Foot out ofthe Algonquin 

Nation' refers to the federally-recognized Blackfeet Tribe of the Blackfeet Indian 

Reservation of Montana." 157 Wn. App. at 238 n.20. Because the Department failed to 

notify the Cherokee and "Black Foot" tribes, the court remanded for proper notice to 

both. Id. at 238. However, because the identity ofthe "Black Foot" 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 ofJA.F, the court determined the 

record was sufficient where the Department provided general notice to the BIA that the 

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

14 

No. 32490-7-111 

In re Welfare ofK.J.B. 

action possibly involved "Indian children" without listing any affiliation with a particular 

tribe, and the BIA responded, '" 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 

Department received 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 recognized tribes. The Department cites Indian Entities Recognized and 

Eligible To Receive Services From the United States Bureau of Indian Affairs, 79 Fed. 

Reg. 4748-53 (Jan. 29, 2014) to support its assertion that the Blackfeet tribe is federally 

recognized but the Blackfoot tribe 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 of Montana. Indian Entities Recognized and Eligible, 80 Fed. Reg. at 1943. 

15 
No. 32490-7-III 

In re Welfare ofK.JB. 

Department's assertion. Because the record is clear that the Blackfoot tribe is not a 

federally recognized tribe and because there is no evidence that J.B. was confused 

concerning the two tribes, the Department was not required to notifY either the 

unrecognized Blackfoot tribe or the recognized Blackfeet tribe of this proceeding. The 

Department therefore complied with the ICWA notice requirements. 

2. 	 Whether all necessary services were expressly and understandably offered or 

provided 

When deciding whether to terminate the parental rights of a parent, Washington 

courts apply a two-step process. In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d 

1104 (2010). "The first step focuses on the adequacy of the parents" and requires the 

Department to prove, 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 

4 The six termination factors that the 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 order pursuant to 

RCW 13.34.130; 

(c) That the child has been removed or will, at the time ofthe 

hearing, have been removed from the custody ofthe parent for a period of 

at least six months pursuant to a finding of dependency; 

(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 of correcting the parental 

deficiencies within the foreseeable future have been expressly and 

16 
No. 32490-7-III 

In re Welfare ofK.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 six termination factors, "the trial court must 

find by a preponderance of the evidence that termination is in the best interests of the 

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 Department did not timely offer or provide him with individual 

counseling, couple's counseling, and a mental health assessment. To satisfy its statutory 

burden under RCW 13.34. 180 (l)(d), the Department must offer or provide "all necessary 

services, reasonably available, capable of correcting the parental deficiencies within the 

foreseeable future." A service is "necessary" if it is needed to address a condition that 

understandably offered or provided; 

(e) That there is little likelihood that conditions will be remedied so 

that the child can be returned to the parent in the near future. 

(0 That continuation of the parent and child relationship clearly 

diminishes the child's prospects for early integration into a stable and 

permanent home. If the parent is incarcerated, the court shall consider 

whether a parent maintains a meaningful role in his or her child's life based 

on factors identified in RCW 13.34.145(5)(b); whether the department or 

supervising agency made reasonable efforts as defined in this chapter; and 

whether particular barriers existed as described in RCW 13.34.l45(5)(b) 

including, but not limited to~ delays or barriers experienced in keeping the 

agency apprised of his or her 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 ofK.JB. 

precludes reunification of the parent and child. In re Welfare ofes., 168 Wn.2d 51, 56 

nJ, 225 P.3d 953 (2010). The Department must tailor the services offered to the 

individual's needs. In re Dependency ofTR., 108 Wn. App. 149, 161,29 P.3d 1275 

(2001). However, because RCW 13 .34.180(1)( d) limits the services required to those 

capable of remedying parental deficiencies in the "foreseeable future," the trial court can 

find that the Department offered all reasonable services "[w]here the 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 educator Esteban Cabrera's recommendation. He points to Mr. 

Cabrera's testimony that he encouraged lB. to start counseling as soon as possible and 

also Mr. Cabrera's recommendation that lB. "continues [sic] to participate in ongoing 

individual and couple's therapy to address unresolved issues of trauma related symptoms 

(i.e. rejection, guilt, etc.), after his successful completion of inpatient treatment." 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 

18 

No. 32490-7-II1 

In re Welfare ofKJB. 

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 of the recommendation, he ignores the clause "after his 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. 

After hearing 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 completed in-patient treatment." CP at 20 (emphasis added). 

"Because the trial court has the opportunity to hear the 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 order terminating parental rights. A.MM, 182 Wn. App. at 786. Substantial 

evidence supports the trial court's finding as to the timing of the referral for counseling 

services. 

19 

No. 32490-7-II1 

In re Welfare ofKJ.B. 

J.B. also contends that the counseling and mental health assessment were 

necessary services for correcting his identified parenting deficiency of substance 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. 

For his assertion that he has mental health issues co-occurring with his substance 

abuse, lB. references testimony by 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's testimony that it is 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, 

rather than specifically as to lB. 

lB. also relies on S.1., 162 Wn. App. 873. There, the trial court's dispositional 

order required the mother to 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 

20 

No. 32490-7-II1 

In re Welfare ofKJ.B. 

issues are best resolved when treatment of both issues is integrated. Id. at 882. Based on 

this finding, the s.J. court held 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 UA testing, and parenting assessment and 

instruction. A mental health assessment and mental health counseling were never 

ordered. Additionally, none of the 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 or mental health services. He only recommended 

counseling. Mr. Laform was the only person to recommend a mental health assessment. 

He testified that his December 18, 2013 referral for counseling services asked the service 

provider to do a mental health intake or assessment so "the practitioner could properly 

diagnose if he had any sort of mental health diagnosis that might be affecting his 

behaviors or leading him to using drugs and alcohol." RP at 199. But Mr. Laform also 

stated he had no reason to believe that J.B. had a mental health issue or co-occurring 

21 

No. 32490· 7·III 

In re Welfare ofK.JB. 

disorder. Thus, the trial court's finding that there was no evidence of J.B. having a mental 

health issue requiring a mental health assessment or treatment was 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 

significant period of time, despite being provide [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. He has 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 not be 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. 

22 
No. 32490-7-II1 

In re Welfare ofK.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 be remedied so 

that the child can be returned to her father in the near future." CP at 21. 

J.B. does not challenge these findings of fact, 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. in the near future due to his incarceration. He estimated his early 

release date from prison was just under four years from the time of trial. 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 of counseling services or a mental health 

assessment any earlier in the dependency would have been futile because of his continued 

drug use. The trial court's finding that the services ordered under RCW 13.34.136 had 

been expressly and understandably offered or provided and all necessary services, 

reasonably available, capable of correcting the parental deficiencies within the 

foreseeable future had been expressly and understandably offered or provided is 

supported by substantial evidence. 

23 

No. 32490-7-II1 

In re Welfare ofK.J.B. 

3. 	 Whether continuation ofthe parent-child relationship diminished K.J.B. 's 

prospects for early integration into a stable and permanent home 

lB. contends that the Department failed to prove all the necessary elements to 

show that continuation of his relationship with KJ.B. clearly diminishes her prospects for 

early integration into a stable and permanent home. Specifically, he argues that the trial 

court failed to consider the 2013 amendment to RCW 13 .34.180( 1)( t) regarding 

incarcerated parents. 

The 2013 amendment at issue in this case is emphasized here: 

That continuation of the parent and child relationship clearly diminishes the 

child's prospects for early integration into a stable and permanent home. If 

the parent is incarcerated, the court shall consider whether a parent 

maintains a meaningful role in his or her child's life based on factors 

identified in RCW 13.34. 145(5) (b); whether the department or supervising 

agency made reasonable efforts as defined in this chapter,' and whether 

particular barriers existed as described in RCW 13.34. 145(5) (b) including, 

but not limited to, delays or barriers experienced in keeping the agency 

apprised ofhis or her location and in accessing visitation or other 

meaningful contact with the child. 

RCW 13.34.180(1)(t) (emphasis added). This new language references 

RCW 13.34.145( 5)(b), which provides a nonexhaustive list of six factors the court may 

also consider as part of its "meaningful role" assessment. These factors include: 

(i) The parent's expressions or acts of manifesting concern for the 

child, such as letters, telephone calls, visits, and other forms of 

communication with the child; 

24 
No. 32490-7-III 

In re Welfare ofK.J.B. 

(ii) The parent's efforts to communicate and work with the 

department or supervising agency or other individuals for the purpose of 

complying with the service plan and repairing, maintaining, or building the 

parent-child relationship; 

(iii) A positive response by the parent to the reasonable efforts of 

the department or the supervising agency; 

(iv) Information provided by individuals or agencies in a reasonable 

position to assist the court in making this assessment, including but not 

limited to the parent's attorney, correctional and mental health personnel, or 

other individuals providing services to the parent; 

(v) Limitations in the parent's access to family support programs, 

therapeutic services, and visiting opportunities, restrictions to telephone and 

mail services, inability to participate in foster care planning meetings, and 

difficulty accessing lawyers and participating meaningfully in court 

proceedings; and 

(vi) Whether the continued involvement of the parent in the child's 

life is in the child's best interest. 

RCW 13.34.l45(5)(b). 

The statute's legislative history suggests the purposes of the 2013 amendment are 

to assure that a parent's incarceration should no longer tip the balance toward termination, 

and to require courts to make individualized determinations when deciding whether an 

incarcerated person's parental rights should be terminated. SUBSTITUTE H.B. 1284, 63d 

Leg., Reg. Sess. (Wash. 2013). 

In support of his argument that the trial court erred, J.B. relies on A.MM In 

A.MM, Division One of this court reversed a termination order because there was no 

evidence in the record that the trial court considered the 2013 amendment to 

25 
No. 32490-7-II1 

In re Welfare ofK.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-half of the dependency. Id. at 780. 

The Department attempts to distinguish A.MM by arguing that here the 

incarcerated parent was incarcerated for only 51 days at the end of the 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]fthe parent is 

incarcerated, the court shall consider" three factors. (Emphasis added.) The first is 

whether the parent "maintains a meaningful role in his or her child's life," the second is 

whether the Department made reasonable efforts to remedy the parental deficiencies, and 

the third is whether barriers of incarceration interfered with the parent's efforts to 

maintain meaningful contact with the 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 if the State's case is strong or if the 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 

to playa meaningful role in his daughter's life. The record also establishes that the 

26 

No. 32490-7-II1 

In re Welfare ofK.J.B. 

Department made reasonable attempts to remedy lBo's parental deficiencies. 

Finally, there is no evidence that barriers of incarceration impacted lBo's ability to 

maintain meaningful contact with his daughter nor is there evidence that barriers of 

incarceration impacted J.B. 's required assessments, services, or his ability to 

participate in court proceedings. Therefore, unlike A.MM, we conclude that the 

trial court's failure to weigh the required considerations was harmless error, which 

does not require reversal. 

4. Whether it was in K.J.B. 's best interests to terminate J.B. 's parental rights 

lB. argues that the trial court erred when determining it was 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 Department to establish the six 

elements of the first step. 

The best interests analysis is the second step in a two-step process for termination 

proceedings. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P 3d 1104 (2010). The 

court may only reach this second step ifthe first step-review of the six termination 

factors listed above-is satisfied. Id. The court must find by a preponderance of the 

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 ofK.JB. 

(citing RCW 13.34.190(2)). "[1]t is 'premature' for the trial court to address the second 

step before it has resolved the first." A.B., 168 Wn.2d at 925. 

Because we resolved the first step in favor of the 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