IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Dependency of No. 77943-5-I G.C.B., DOB: 12/10/11, and M.J.B, (Consolidated with No. 77944-3) DOB: 8/3/09, STATE OFWASHINGTON, DIVISION ONE DEPARTMENT OF SOCIALAND HEALTH SERVICES, UNPUBLISHED OPINION Respondent, V. ROB BESH’STEEL, Appellant. FILED: March 4, 2019 CHUN, J.

—Aftera dependency of more than two years, the trial court terminated the father’s parental rights to his two children.1 As a basis forthe termination, the court relied, in part, on the father’s schizoid personality characteristics and the absence ofa bonded, nurturing, and connected relationship with his children. Butthe fatherwas not notified during the dependencythatthese issues were parental deficiencies that he would be required to defend against during the termination proceeding. Accordingly, we remand forthe trial courtto reconsiderwhethertermination is appropriate based
on the other parental deficiencies ofwhich the father had notice.

1 The children’s mother relinquished her rights and entered into an open adoption agreementjust before trial on the Department’s petition. This appeal involves onlythe father’s parental rights.No. 77943-5-1/2
BACKGROUND M.J.B. was born in 2008 and her brother, G.C.B, was born in 2011. Child Protective Services became involved with the family in June 2015, when police responded to a report thatthree-year old G.C.B. was walking alone down a busy street. Police recognized G.C.B. from an incident 17 days prior, when he was found wandering alone in a motel parking lot, wearing only a t-shirt and a diaper. In the prior incident, the parents were in a nearby motel room, where the family
was staying atthe time, but had fallen asleep. This time, the parents were not in the vicinity, and had left G.C.B. in the care of his 12-year-old half-brother.2 The Department of Children, Youth and Families3 (the Department) took G.C.B. and M.J.B. into protective custody and then placed them in licensed care.4 Neitherchild has lived with their parents since thattime. When they came into the State’s custody, the children appeared to be undernourished, lacking in appropriate hygiene, and social workers were concerned abouttheir physical health. G.C.B. was admitted to the hospital due to concerns about his exposure to a serious infectious disease. Testing showed signs of“diffused bone mineralization,” indicative of malnourishment and neglect. G.C.B. also had speech delays and was nottoilet-trained. M.J.B. had deep cavities that required the removal of numerous teeth. The Departmentfiled a

2 Previously, when he was two years old, police found G.C.B. alone in traffic.

~ Formerlythe Department of Social and Health Services.

~The Departmenttook all three children into custody, but onlythe parental rights as to G.C.B. and M.J.B are at issue in this appeal.
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dependency petition, alleging thatthe parents neglected to care forthe children and failed to attend to their medical needs. In September2015, aftera contested hearing, the court entered orders of dependency. The courtfound thatthe children were dependent because: (1) theywere abused or neglected; and (2) they had no parent, guardian or custodian capable ofcaring forthem adequately. ROW 13.34.030(6)(b), (c). The court ordered the fatherto complete a psychological evaluation with a parenting component and follow any recommendations forfurtherservices, complete ageappropriate parenting instruction, participate in nutritional education, participate in all medical and dental appointments with the children, and submitto tuberculosis (TB) testing. The court’s orderallowed the fatherto have monitored visitation twice per month, once he completed the TB testing and was cleared for the illness. In the yearthatfollowed, the fatherdid not participate in any courtordered services. Nordid he complete TB testing so that he could visitthe children. Exceptforone visitthe social worker permitted him by mistake, he did not see the children for more than a year. The fatherdid not exercise the option, setforth in the dependency order, to participate in visitation by Skype or telephone until he could complete the testing. In August 2016, when the children had been dependent for over a year, the Departmentfiled a petition to terminate the parental rights of both parents. With respectto each child, the Department alleged thatthe father had not

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participated in any court-ordered services and did not appearto be “capable of providing an adequate, stable and safe environmentforthe child despite an abundance ofsupportive communityservices.” The petition stated thatthe ‘nature and extent of parental deficiencies and incapacities provide a reasonable explanation whythe parents have not been able to develop appropriate parenting skills despite offered services.” The Departmentfurtheralleged: The mother and father are currently not fit to parent the child. The Department has identified the following parental deficiencies that have not been corrected and necessitate termination of parental rights as to the mother and father. The child came into care due to chronic and significant medical, emotional, and developmental neglect. Since that time the parents have consistently failed to learn parenting skills or address their mental health issues or attend services that would help them to understand and attend to the medical, emotional, physical, developmental needs of their child. For these reasons, the parents do not understand and are incapable of providing for their child’s emotional, physical, mental and developmental needs; the parents are incapable of safely parenting the child. Atthe time ofthe December2017 trial on the Department’s petition, M.J.B. was eightyears old and G.C.B. was almost sixyears old. The father had not seen the children in eight months. The court heard evidence during the trial aboutthe issues that led to the dependency. There was also evidence that after the Departmentfiled the petition fortermination, fora period lasting approximately eight months, the fatherengaged in some services and regularly visited the children. Then following an injury around April 2017, the father stopped engaging in the dependency and communicating with the Department.

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The court also considered evidence regarding concerns aboutthe father’s lack ofconnection with his children and about certain personality traits he exhibited that potentially impaired his abilityto nurture the children or meettheir emotional and developmental needs. Aforensic psychologist, Dr. Evan Freedman, performed a psychological evaluation with a parenting component ofthe father in February2017. As part of that evaluation, Dr. Freedman conducted a one-hour observation ofthe father. M.J.B. and GOB. Based on that observation, Dr. Freeman testified thatthe children did not appearto be happy orexcited to see theirfatherand described the energy between them as “stilted.” Dr. Freedman described the father’s affect as “quite flat.” He said the father“seemed quite distantfrom the children,” interacted only minimallywith them, and made no effortto help them, ensure theirsafety, or play with them. Dr. Freeman testified that he observed thatthe fatherdid not engage in behaviors “designed to facilitate attachment” such as “reciprocal communication” and the children did not appearto have a “secure” attachmentto him. Dr. Freedman concluded that although the father appeared to be “normal from a cognitive perspective” he exhibited a numberof“schizoid personality characteristics.” He explained thatthese “personality characteristics” include detachment, a restricted range ofemotion, coldness, and limited sociability or manifestation of pleasure. Dr. Freedman said these traits potentially impaired

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the father’s abilityto ‘facilitate the type ofattachment necessaryto support his children” and likely rendered him unable to meettheir needs. Dr. Freedman hypothesized thatthe father likely lacked the insight and motivation to change thatwould be required for any intervention to be helpful. Dr. Freedman also said thatthe father appeared to have little insight as to whythe Department removed the children from his care and was unable to articulate what he might do differentlyto avoid the issues that led to the dependency. The fathertestified that he did not receive Dr. Freedman’s evaluation and
no one discussed the results with him. In closing argument, the Department’s attorney argued thatthe father showed little interestduring the dependency in being with his children, learning abouttheir needs, or howto properly care forthem. The Departmentfurther argued thatthe father’s “schizoid tendencies” made him incapable of recognizing weaknesses and unable to make the changes he would need to make in orderto become a fit parent. According to the Department, the factthat no one informed the fatherofthe evaluation results priorto the termination trial was immaterial because he knew about the evaluation and could have asked his attorney about the report. In response, the father’s attorney argued that ifthe Department had
concerns aboutthe potential for reunification based on the results ofthe psychological evaluation, then Department had an obligation to inform the father ofwhat its concerns were and what he needed to do to address them.

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Atthe conclusion ofthe trial, the court entered an orderterminating the father’s parental rights and written findings.5 The court’s findings identify, among otherthings, the father’s lack ofa connected relationship to the children and his “psychological diagnosis” as parental deficiencies that he failed to correct during the dependencythat rendered him unfitto parent. Specifically, the court’s findings state thatthe father’s “identified” parental deficiencies included a “[hack of bonding, nurturing, connectivity and parental relationship as demonstrated by the visits.” The courtfurtherfound thatthe father’s “psychological diagnosis cannot be simply overcome and renders him incapable of meeting the children’s needs without a warm, nurturing, and loving partner,” and noted thatthe mother
was not available to co-parent. The fatherappeals. ANALYSIS Parents have a fundamental liberty interest in the care and welfare oftheir children. In re Dependency of Schermer, 161 Wn.2d 927, 941-42, 169 P.3d 452 (2007). Parental rights cannot be abridged without due process of law. In re Dependency ofA.M.M., 182 Wn.App. 776, 790-91, 332 P.3d 500 (2014). In particular, due process requires “that parents receive notice ofthe specific issues to be considered” at a termination hearing. A.M.M., 182 Wn. App. at 791 (quoting In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970)).

~The court entered an initial orderwith boilerplate findings atthe conclusion ofthe hearing and later entered supplemental findings that incorporate the court’s oral ruling.
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Such notice is necessary “to prevent surprise, helplessness and disadvantage.” A.M.M., 182 Wn. App. at 791 (quoting Martin, 3 Wn. App. at410). The fatheralleges a due process violation because he was not notified during the dependencythat eitherthe absence ofan emotional bond with his children, as demonstrated during visitation, or personalitytraits that impaired his abilityto nurture them would be considered as a basis forterminating his parental rights. He relies on A.M.M., 182 Wn. App. at 790-91, and In re Parental Rights of F.M.O., 194 Wn. App. 226, 231-32, 374 P.3d 273 (2016). In A.M.M., the trial courtterminated the mother’s parental rights based, in part, on a parental deficiency not identified in the dependency ortermination petition. A.M.M., 182 Wn. App. at 791-92. During the dependency, the Departmentfocused on the mother’s substance abuse issues. But during the termination hearing, the mother learned ofanother parental deficiencythat could supporttermination when a social workertestified thatthe mother lacked an understanding of her children’s needs. A.M.M., 182 Wn. App. at 784. This court reversed the termination orderand remanded forthe trial courtto strike the finding thatthe mother’s parental deficiencies included a lack of knowledge about her children’s developmental needs. A.M.M., 182 Wn. App. at 792. While there
were numerous findings aboutthe mother’s substance abuse, the trial court did not indicate that substance abuse alone was sufficient to warrant termination. On remand, we instructed the trial courtto considerwhether “termination is

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appropriate on the basis ofthe parental deficiencies ofwhich [the mother] was given adequate notice.” A.M.M., 182 Wn. App. at 793. In F.M.O., the Departmenttook custody ofan infantwho tested positive for drugs at birth and initiated dependency proceedings, alleging parental deficiencies ofsubstance abuse, mental health, and a domesticviolence history. 194 Wn. App. at 227. In terminating the mother’s parental rights, the court also cited the mother’s recurring incarceration, which inhibited her abilityto parent, as an additional basis supporting the termination. F.M.O., 194 Wn. App. at 229. While rejecting the mother’s position that parental deficiencies are limited to those expressly identified in the termination ordependency petition, Division Three ofthis court concluded there was nothing in the record to indicate thatthe motherwas notified that herfrequent incarceration was a deficiencythat could be the basis forterminating her rights. F.M.O., 194 Wn. App. at 232. As in A.M.M., the court reversed the termination order and instructed the trial court on remand to considerwhethertermination was appropriate based on the identified deficiencies. F.M.O., 194 Wn. App. at233. The relevant circumstances here are analogous to those in A.M.M. and F.M.O. While the Department notified the fatherthat his parental deficiencies stemmed from chronic neglect of his children and the failure to supervise them, it did not apprise him thatthe court could terminate his parental rights because of schizoid personalitytraits or because he lacked a connected, nurturing, and bonded relationship with his children. There is no evidence in the record to

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suggestthatvisit supervisors, or anyone else, raised concerns aboutthe nature ofthe father’s interaction or bond with the children during visitation. To the contrary, during the period ofthe dependencywhen the father had stable housing and was engaged in services and regularlyvisiting the children, the Department considered the possibility thatthe children could be returned to him. And, as explained, there 

### is no evidence thatthe Department shared any concerns with the fatherabout his interaction or relationship with the children based on the psychologist’s evaluation. There is nothing in the record to indicate that, priorto the termination trial, the Department identified a lack ofa bonded relationship with his children as a parental deficiency. Likewise, there is no evidence that priorto trial, the Department identified a psychological diagnosis or ‘schizoid” personality characteristics as a condition that rendered him incapable of parenting withoutthe support ofa “nurturing” partner. The Department points outthatthe psychologist did not officially diagnose the fatherwith a disorderand the court did not explicitly identify schizoid disorder
as a parental deficiency. But regardless ofwhetherthe psychologist rendered a diagnosis orwhetherthe court designated the issue as a deficiency, the court clearly concluded thatthe father’s psychological condition rendered him unfitto parent on his own and was a barrierto reunification. A condition that prevents reunification constitutes a parental deficiency. See In re Welfare of CS., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (201 0). As such, the fatherwas entitled to

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notice thatthe court could rely on this condition as a basis to terminate his parental rights. The Department’s vague reference in the termination petition to the failure to “learn parenting skills” or address “mental health issues” did not inform the fatherthat his parental rights were injeopardy specifically because ofa schizoid personality disorder or characteristics or because ofthe lack of emotional connection to his children. And it is unclearwhat mental health issue the Department’s petition referred to since the psychologist did not complete the evaluation until several months afterthe Departmentfiled the termination petition. While the Department may have offered services that had potential to impact or address the alleged deficiencies, this does not equate to notice ofwhat deficiencies the Department will rely on. The requirements ofdue process are more exacting. As the court stated in F.M.O., both sides “need to knowwhat deficiencies are at issue since the State has to prove the deficiencies to make its
case while the parent has to knowwhat allegations to defend against.” 194 Wn. App. at 232. The record does not indicate thatthe Department notified the father in any manner priorto trial thatthe court could terminate his parental rights based on the absence ofa bonded relationship with his children oron a diagnosis and/orcharactertraits that could impair his abilityto meet his children’s emotional needs. Reliance on a lack of bonding and schizoid traits as basesfortermination
was error. And despite otherfindings addressing identified deficiencies, in the

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absence ofevidence thatthe otherdeficiencies established attrialjustified termination, we must remand. The trial court must considerwhethertermination is appropriate on the basis ofthe parental deficiencies ofwhich the fatherwas properly notified. Therefore, we need not address the father’s alternative argument thatthe Department failed to offerservices specificallytailored to address insufficient bonding and his schizoid disorder. See ROW 13.34.180(1)(d). We also need not address the father’s challengeto the evidence supporting the court’s finding that his parental deficiencies are unlikely to be remedied so thatthe children can be returned to him in the nearfuture.6 See ROW 13.34.180(1)(e). We reverse and remand to the trial courtforfurther proceedings.

WE CONOUR:

6Although the court must reevaluate the likelihood that conditions cannot be remedied with respectto the deficiencies ofwhich the father had notice, we note thatthe father’s challenge is partly based on the claim thatthe court could not make this finding in the absence of explicit witness testimony as to what duration oftime constitutes the nearfuture foreach child. The father provides no authority to supportthe position that specificwitness testimony on that point is required.
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