IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE DEPENDENCY OF: P.S.F. (d.o.b. 11/04/2002), Minor Child, STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

v. ATIBA FLEMING, Appellant. No. 68393-4-I

DIVISION ONE

UNPUBLISHED OPINION o

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FILED: July 22, 2013 

### Spearman, J. — Atiba Fleming appeals the trialcourt decision terminating his 

### parental rights. He argues that the Department of Social and Health Services (the 

### Department)failed to offer or providehim with services necessary to correct his parental deficiencies inthe foreseeable future, and that the court-appointed special advocate 

### (CASA) for P.F. violated his rights to due process and a fair trial byfailing to report P.F.'s wishes to the court, and by failing to speakto him while he was incarcerated inNo. 68393-4-1/2 

### the King County Jail. We conclude that although the Departmentfailed to offer or provide the necessary services, the evidence supported the trial court's conclusion that such services would not have remedied Fleming's parental deficiencies inthe 

### foreseeable future. As such, the trial court did not err in terminating Fleming's parental rights. Because Fleming's other claims are also do not warrant relief, we affirm. FACTS Atiba Fleming and NikiahTaylor had a son, P.F., on November4, 2002. Fleming and Taylor lived together, caring for P.F. until he was about three years old. When their relationship ended in 2005, Fleming leftthe family home and moved between several states, including California, New York, and Florida. Fleming accumulated a history of criminal convictions, including crimes relating to methamphetamine and cocaine use, and domestic violence with Taylor. Fleming did not return to Seattle until February 2009. Taylor became mentally ill and agreed to a dependency in June 2009. P.F. was cared for first by his maternal grandmother and then his maternal aunt and uncle. Atthe time, the Department had no information as to Fleming's whereabouts or how to contact him, and later in 2009, an order ofdependency as to Fleming was accomplished by publication. The dependency order required Fleming to participate in four services: a parenting assessment and followthe recommendations ofthat assessment; engage in domestic violence perpetrator's treatment with a state certified program; have a substance abuse evaluation and follow the recommendations that flow therefrom; and undergo random urinalysis two times per week.No. 68393-4-1/3 Atthe time the dependency was entered as to Taylor, Fleming had not seen his
son for more than three years. Although Fleming knew that P.F.'s mother had become 

### mentally ill inJune 2009 and that P.F. was living withmaternal grandparents, he never sought custody of P.F. When the Departmentfinally learned Fleming's address in 

### January 2011, Fleming had seen his son only twice since leaving in 2005: during Christmas in 2009, and during one happenstance meeting at a park inthe summer of 

### 2010. According to Fleming, he attempted to maintain contactwith P.F. through phone 

### calls and bysending him items such as clothing from time to time. When the Department located Fleming inJanuary 2011, a social worker sent Fleming a letter about the dependency action. The letter, however, did notinform Fleming of the services in which the court had ordered him to participate. 

### By March orApril 2011, Fleming was represented by counsel.Although Fleming acknowledges that at least as ofMay 27, 2011, his attorney hadexplained to him the requirementthat he participate in court-ordered services, there is no evidence that the 

### Departmenthadprovided Fleming with a listofproviders ofthose services.When asked 

### why he hadn'tattempted toparticipate in these services, heresponded "I was arrested
onJune 11th."Verbatim Report ofProceedings (VRP) (08/22/11)at 40. At the time of 

### the termination trial, August 22 and 23, 2011, Fleming had been in the King Countyjail since his arrest, and had not participated in the court ordered services. Afterthe August 22 and 23 termination trial, the trial court found the Department had not adequately 

### offered orprovided Fleming with the court-ordered services. As such, the trial courtNo. 68393-4-1/4 continued the trial for six months, "to allow time forthe father to engage inservices." Clerk's Papers at 112. Fleming remained inthe KingCountyjail forthe next six months, until the trial resumed in February 2012. Afterthe trial was continued, the Department sent Fleming monthly letters listing the types ofservices in which he needed to engage. The letters included the social worker, Pauline Duke's, telephone number. None ofthe letters, however, gave Fleming
a referral list of agencies or organizations that provided the services. After Fleming called and wrote to Duke, she contacted the program coordinator at the King County Jail to determine what, ifany, services thejail could provide. The program coordinator indicated thejail was unable to provide the court-ordered services. Duke never attempted to determine which, if any, providers could provide services to Fleming while he was in jail. When the trial resumed, the CASA testified that P.F. enjoyed living with his aunt and uncle. The CASA also testified about what P.F. saw for his future: "[h]e states that 

### he's very happy withthe situation that he's currently in" with his aunt and uncle. VRP 

### (02/06/12) at 226. Duke testified that she had, on a monthlybasis, sent Fleming letters while he was inthe King County Jail informing him ofthe services required by the 

### dependency order, and providing him with her contact information. The trial courtfound the Department had carried its burden ofproofand terminated Fleming's parental rights. Fleming appeals.No. 68393-4-1/5

DISCUSSION Standard of Review. The United States Constitution protects parental rights as a fundamental liberty interest. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 

### L.Ed.2d 599 (1982). To terminate a parent's rights, the Department must satisfy a two

### pronged test. In re Dependency ofK.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). The first prong requires proof ofthe sixfactors enumerated in RCW 13.34.180(1): (a) Thatthe 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 of the 

### hearing, have been removed from the custody of the parent for a period of at least six months pursuantto a finding ofdependency; 

### (d) That the services rendered 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) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; . . . [and] 

### (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. 

### TheDepartmentmustprovethesefactors by clear, cogent, andconvincing evidence. in_
re K.N.J., 171 Wn.2d at 576-77. Ifthe Department satisfies the first prong, the court 

### proceeds to the secondprong, determining iftermination isin thechild's bestinterests. RCW 13.34.190(1)(b). The Department must prove this second prong by a 

### preponderance oftheevidence. In reWelfare ofA.B., 168Wn.2d 908, 911, 232 P.3d 1104(2010). 5No. 68393-4-1/6 Continuance. After finding that the Department had not shown itoffered or provided Fleming with services necessary to correct his parental deficiencies, the trial court continued the trial for six months "to allow time for the father to engage in services." CP at 112. Fleming argues that after making this finding, the trial court was "required" to dismiss the termination petition. Opening Brief at 13. But he offers no authority in support of this proposition. Fleming appears to argue that had the court proceeded tojudgment atthat point, dismissal might have been required because the Department had failed to establish a necessary element of its claim, i.e., that ithad offered or provided Fleming services capable ofremedying his parental deficiencies in the foreseeable future. (See AJL, 168 Wn.2d at 927; In re Welfare ofC.S., 168 Wn.2d 51, 56-57, 225 P.3d 953 (2010); Young v. Key Pharm.. Inc., 112 Wn.2d 216, 235, 770 

### P.2d 182 (1989)). But beyond this, Fleming offers no explanation or argument for why it
was errorfor the trial court to continue the trial proceedings so that he would have the 

### opportunity toengage in the needed services. Generally, a trial court's decision whether
to continue a case is reviewed for abuse ofdiscretion. State v. Downing, 151 Wn.2d 

### 265, 272-73, 87 P.3d 1169 (2004). Fleming has not argued, nor are we able to discern, 

### any reason to conclude that the trial court's decision to continue the trial underthese circumstances was an abuse of its discretion. We reject Fleming's argument on this
issue. 

### Services. Flemingargues that the Departmentdid not properly assess his 

### parental deficiencies and therefore could not offerservices specificallytailored to meetNo. 68393-4-1/7 his needs. Specifically, Fleming contends thatthe parental deficiencies identified by the Department are not supported by any evidence. He asserts that the claimed deficiencies are based on faulty information from maternal relatives and are in place as 

### the basis ofthecourt-ordered services1 only because the order ofdependencywas entered by default. We disagree. Fleming's parental deficiencies are clearly identified in the trial court's finding offact 2.7: 6. The father has a history ofviolence against the mother. He was convicted of4th Degree Assault-Domestic Violence for his violence against the mother. As part of his judgment and sentence he was ordered to complete Domestic Violence Batterer's Treatment by a State Certified Program. He was also prohibited from possessing nonprescribed drugs or alcohol. A No contact orderwas issued but expired 2/10/08. 7. The father has a criminal history. He currently has a warrant outfor his arrest for Assault from Seattle Municipal Court.
... From incidents in 2007, he was convicted ofTrespass.... and Theft in Seattle Municipal Court. From an incident in October of2006 he was convicted of 

### Possession of Drug Paraphernalia inSeattle Municipal Court. He plead 

### guilty of AttemptedVUSCA-Attempted Possession of Cocaine inApril of 2004 inKing County SuperiorCourt. As part of his sentence he was required to complete a substance abuse evaluation and follow treatment recommendation and participate inweekly 12 step meetings. InJune of2005 he was ordered to serve 45 days for his use of 

### methamphetamines on 6/21/04, his failure to obtain a drug/alcohol evaluation and his failure to attend 12 step meetings. From an incident in 2004 he was convicted of Residential Burglary inWhatcom County Superior Court. 

### CP 185-86 (Finding 2.7(6)-(7)) (cause numbers omitted). These findings are 

### unchallenged and are therefore verities on appeal. Keever &Associates, Inc. v. Randalls, 129 Wn. App. 733, 741, 119 P.3d 926 (2005).

1The court ordered Fleming toparticipate in four services: to undergo a parentingassessment and follow the recommendations of that assessment; to engage in domestic violence perpetrator's treatment by a state certified program; to have a substance abuse evaluation andfollow the recommendations thatflow therefrom; and to undergo random urinalysis twotimes per week. 7No. 68393-4-1/8 Fleming next argues the Departmentfailed to prove that itoffered or provided him all reasonably available, necessary services capable ofcorrecting his parental deficiencies within the foreseeable future. RCW 13.34.180(1 )(d). Generally, if a parent 

### is unwilling or unable to make use ofavailable services, the Department is not obligated to offer other services. In re Dependency of Ramguist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988). Likewise, the Department is not required to offer or provide services that would be futile. In re Dependency ofT.R.. 108 Wn. App. 149, 163, 29 P.3d 1275 (2001); In re Dependency of P.A.D., 58 Wn. App. 18, 26-27, 792 P.2d 159 (1990); Ramguist, 52 Wn. App. at 861. 

### The Department did not know Fleming's location from the time the dependency


### was entered by defaultin July 2009 until January 2011, and as such, it could not offer him services. Nevertheless, when the Departmentfinally located Fleming inJanuary 

### 2011, it did not offer himservices. Rather, a social workersent Fleming a letter about 

### the dependency action, but the letterdid notmention the services in which the court had ordered him to participate. Fleming acknowledges that at leastas of May27, 2011, his 

### attorney hadexplained to him the requirementthat he participate in court-ordered services, id- at 39-40, but the department still had not offered him services. At the time 

### of the termination trial, August 22 and 23, 2011, Fleming had been in the King County 

### jail since June 11.While incarcerated, he had not been offered, nor had heparticipated, in any courtordered services. Thetrial courtcontinued thetrial togive Fleming timeto participate incourt-ordered services.

8No. 68393-4-1/9 The Department does not dispute that ithad failed to offer or provide services as ofAugust 23, 2011. The issue here is whetherthe record shows the Department offered services inthe six months between August 2011 and February 2012, when the termination trial resumed. The Department argues it did, pointing to Duke's monthly letters to Fleming while he was inthe King County Jail. The letters, standing alone, are inadequate to meet the State's burden to show that itoffered Fleming the necessary services. The letters did nothing more than enumerate the services the court had ordered inthe dependency; they did not provide specific organizations for Fleming to contact. As Fleming points out, "When the State suggests remedial services to a parent, 

### ithas an obligation under RCW 13.34.180(4) to at least provide him or her with a 

### referral list ofagencies ororganizations which provide the services." In re Welfare of Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983): see also Inre Dependency ofDA., 124 

### Wn. App. 644, 651, 102 P.3d 847 (2004). No such referral listwas ever provided here. The Departmentcontends that it did more than just send letters to Fleming, 

### namely, thatDuke spoke with the program coordinatorat the King CountyJail to determine what, ifany, services thejail couldprovide. The Department points out that 

### the program coordinatorindicated thejail was unable to provide Fleming the services ordered by the court. But this shows onlythat the King County Jail was unable to 

### provide services; itdoes not show that the Departmentoffered services or that the Department made anyeffortwhatsoever to determine whether orwhich services could be provided to Fleming while he was in custody.No. 68393-4-1/10 The Department appears to argue that because Fleming was incarcerated, itwas not possible to provide him with the court ordered services. The Department, however, provided no testimony or evidence to supportthis argument. There were no declarations thatthe providers typically used by Department social workers to provide these services


### were unable to go intothe King County Jail and perform. Likewise, there is no evidence inthe record documenting what, if any, attempts the social worker made to locate 

### providers that could perform the court ordered services inthejail. The Department may have been able to meet its minimum obligations if it had introduced evidence of failed efforts to locate and secure services while Fleming was incarcerated, but the Department did not offer such evidence here. 

### The Department's failure to offer or provide the necessary services 

### notwithstanding, termination maystill be appropriate ifthere isevidence in the record from which the trial court could have concluded that such services would not have 

### remedied parentaldeficiencies "in the 'foreseeable future.'" Hall, 99Wn.2d at 851 

### (quoting former RCW 13.34.180(4) (1979)) (this section has been renumbered at RCW 13.34.180(1)(d)). The facts in Hall are very similarto the facts in this case. In Hall, the Departmentproduced "no evidence" thatit hadoffered orprovided the fatherwith any training orcounseling in parenting skills, id. at 850. "Neitherdid the [Department] 

### produce anyevidenceto showthat such serviceswere notreasonably available." ]d. The court rejected the Department's argument that a caseworker's generic suggestion to "take courses or read books on parenting" was sufficient, stating that "'merely

10No. 68393-4-1/11 informing the [parents] ofwhat was to be corrected for the return of [their child], does not rise to the level of providing reasonable services.. . .'" ]d. (quoting In re Jones, 436 N.E.2d 849, 854 (Ind. App. 1982)). The court nevertheless affirmed the termination because the statute indicates the services to be provided should be able to remedy parental deficiencies "inthe "foreseeable future." Hall, 99 Wn.2d at 851 (quoting former RCW 13.34.180(4). Whether 

### a time period qualifies as the "foreseeable future" varies withthe child's age. ]d. InHall, the court concluded 8 months was not in the foreseeable future for a four-year-old. Id. at 850-51. Here, P.F. has waited for over 35 months for Fleming to correct his parental deficiencies. The trial court determined that Fleming's parental deficiencies could not be remedied inthe foreseeable future and entered the following uncontested findings: 2.18 There is little likelihood that conditions will be remedied so 

### that [P.F.] can be returned to his father within the nearfuture. 

### 2.19 [P.F.] has waited too long for his father to engage in services. [P.F.] has waited over 35 months for his father to correct his parental deficiencies. 

### 2.20 The length of time prescribed by the legislature to proceed 

### with permanence is indicative of the significant wait this child has endured.


### 2.22 Continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. 

### CP at 187. These uncontested findings are verities on appeal, Keever &Associates, 

### 129Wn. App. at 74, and they support a conclusion that any services would not have remedied Fleming's deficienciesin the foreseeable future. Hall, 99Wn.2d at 851. As

11No. 68393-4-1/12 such, although the court has concerns about the Department's lack ofeffort in providing services, we reject Fleming's argument on this issue. Fleming next cites In re Dependency ofJ.W., 90 Wn. App. 417, 953 P.2d 104 (1998) for the proposition that a parent's imprisonment "does not in itself justify the termination of his parental rights." Reply Briefat 6. While Fleming is correct, he ignores 

### the very next line written bythe court inJ.W.: "Butthe parent's resulting inability to 

### perform his or her parental obligations is certainly relevantto the child's welfare." J.W., 90 Wn. App. at 426. Again, termination is still appropriate ifthere is evidence in the record from which the trial court could have concluded that such services would not 

### have remedied parental deficiencies "in the 'foreseeable future'". HaJI, 99 Wn.2d at 851. 

### Finally, Flemingcontends that the record shows the trialcourt's findings2.10 and 2.12, both of which deal with Fleming's lack of participation in court ordered services, 

### are not supported by the record. Fleming's argument is premised on hisown testimony about his alleged past participation in programs similarto the court-ordered services. For example, hetestified that he completed a domestic violencetraining in 2005 or 2006, that he had a drug and alcohol evaluation after his lastconviction, and that he 

### had undergone twice-monthly randomurinalysis tests in the past. ButFleming's 

### testimony on this issue is so vague as to makeitdifficultto determine whether the alleged past activities complied with the court ordered services; in at least one case, it is clear the past activities did notcomply: twice-monthly random urinalysis is not the same


### as twice-weeklytests. Additionally, Fleming offers no argument orauthority in supportof

12No. 68393-4-1/13
his contention that past activity can be used to satisfy the court-ordered services in the order ofdependency. Moreover, the trial court heard this testimony from Fleming and rejected it.We likewise reject Fleming's arguments on this issue. Fairtrial. Fleming also argues that his rights to due process and a fair trial were violated because the CASA was required to elicit, and then report to the trial court, the views of P.F. regarding the termination proceeding. Because the CASA did not do so, 

### Fleming asserts, the termination of his parental rights was improper. We disagree. In a proceeding to terminate parental rights, the trial court must appoint a 

### guardian ad litem or court-appointed special advocate for the child. RCW 13.34.100(1). "A 'court-appointed special advocate' appointed by the court to be the guardian ad litem for the child, or to perform substantially the same duties and functions as a guardian ad litem, shall be deemed to be guardian ad litem for allpurposes and uses of this 

### chapter." RCW 13.34.030(10). The CASA's role is to "represent and be an advocate for the best interests ofthe child." RCW 13.34.105(1)(f). Inorderto fulfill this role, the 

### CASA must "investigate, collect relevant information about the child's situation, and 

### reportto the courtfactual information regarding the best interests ofthe child." RCW 13.34.105(1)(a). In addition, the statute requires that the CASA "meetwith, interview, or observe the child,depending on the child's age and developmental status, and report to 

### the court any views or positions expressed by the child on issues pending before the court." RCW 13.34.105(1 )(b).

13No. 68393-4-1/14 Here, although the CASA personally observed and spoke with P.F. on multiple occasions, she did not interview him regarding his views ofthe termination proceedings and thus did not report any such views to the trial court. Fleming contends the statute 

### requires that such views be reported by the CASA, and that the termination of his parental rights in the absence ofsuch evidence amounted to a violation of his right to due process and a fair trial. We disagree. "[T]he nature ofthe process due inparental 

### rights termination proceedings turns on a balancing of the 'three distinct factors' specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 

### (1976)." Santoskv v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).The three factors are: "the private interests affected by the proceeding; the risk 

### of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure." Santoskv, 455 U.S. at 754. 

### Applying these principles, this court has explained that the due process protections afforded parents in a termination hearinginclude a strict burden ofproof, the rightto 

### notice, and an opportunityto be heard and defend. In re Interest ofInfantChild Skinner, 97Wn. App. 108, 114,982 P.2d 670 (1999); In reWelfare ofS.E., 63Wn. App. 244, 250, 820 P.2d 47 (1991); In re Interest ofDarrow, 32Wn. App. 803, 806, 649 P.2d 858 (1982).The record here does not reflect a violation ofany ofthese protections, and 

### moreover, nothing in the record shows the CASAviolated the statute. Again, RCW 13.34.105(1)(b) requires that the CASA "meetwith, interview, or observe the child,

14No. 68393-4-1/15 depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court." Here, the CASA met with P.F. multiple times, including three visits inthe six months after the trial
was continued. During those meetings, the CASA spoke with P.F. about his future and she reported the substance ofthose conversations to the court in her testimony: Q: Okay. At this point, have you spoken to [P.F.] about what he wants to have happen with his future? A: Yes, I have. Q: And is itpart ofyour duties as a CASA to report on the child's stated interests, whatthey want to have happen? A: Yes, I believe so. Q: And what does [P.F.] state that he wants for his future? A: He states that he's very happy with the situation that he's currently in. He enjoys living with [his Aunt and Uncle] Josh and Sandy. He gets very excited at a day care when one ofthem or both come to pick him up after school. He looks forward to, perhaps, having a baby brother or sister. VRP (02/06/12) at 226-27. 

### The CASAthus reported P.F.'s views about his future and possible family situation to the court. This complies with RCW 13.34.105(1)(b), and nothing inthe 

### statute requires the CASA to interrogate the child as to preference regarding termination of parental rights. Indeed, it may well have been inadvisable for the CASAto put P.F. in the position of being asked how he feltabout hisfather's behavior, or about how he feels abouttermination proceedings ingeneral. Questioning P.F. regarding specifics of 

### the legal proceedings about the termination of his father's parental rights not only could
cause anxiety, it iswholly unnecessaryto accomplish the purpose of"report[ing] to the

15No. 68393-4-1/16 

### court any views or positions expressed by the child on issues pending before the court." RCW 13.34.105(1)(b). Inshort, Fleming's rights to due process and a fair trialwere not 

### violated by the CASA declining to specificallyask P.F. about his views regarding the termination proceeding. Fleming also argues his rights to due process and a fair trial were violated 

### because the CASA did not interview him. Fleming relies on the rules forguardians ad litem, which state thatthe GAL must "maintain independence, objectivity and the appearance offaimess[,]" GALR 2(b), and thatthe GAL must "make reasonable efforts 

### to become informed about the facts ofthe case and to contact all parties." GALR 2(g). Fleming provides scant argument and no citation to authority in support of this argument. His sole complaint appears to be that the CASA provided testimony based on
a review of Department reports instead of on an interview with Fleming inthejail. Although the CASA clearly failed in her obligation to contact him, Fleming is unable to show how this failure denied him due process or a fair trial. As we have stated, the due process protections afforded parents in a termination trial include a strict burden of proof, the right to notice, and an opportunityto be heard and defend. Skinner, 97 Wn. App. at 114; SJL, 63 Wn. App. at 250; Darrow, 32 Wn. App. at 806. Fleming has not explained how the CASA's failure to contact him interfered with the Department's burden of proofor his opportunity to be heard and defend. Indeed, Fleming himself testified at the termination trial and was more than able to inform the court ofthose facts

16No. 68393-4-1/17 he considered relevant or importantto his position. We reject Fleming's arguments on this issue, and affirm the termination. Motions to supplement the record on appeal and to strike briefing. The 

### Department moved to supplementthe record on appeal with evidence of alleged additional, more recent convictions of Fleming. Fleming opposed the motion, and 

### moved in the alternative to supplementthe record withevidence of Fleming's alleged 

### progressin his personallife, including drug treatment. Fleming also moved tostrike 

### portions oftheDepartment's briefing referencing otherconvictions. Given none of evidence ofnew convictions was before the trial courtwhen itgranted the petition to 

### terminateFleming's parentalrights, we deny the motions to supplement. To the extent 

### theDepartment's briefing contained references toinformation found only in the proposed supplemental record, we grant themotion to strike.
Affirmed.



# IcetscJi O*

17 

### P_fJ*J\.r~~> x\ 7 

### WECONCUR" " y