IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Welfare of

N.M.P.K.-A.,

D.O.B.: 3/16/08;

T.K.A.,

D.O.B.: 7/21/10;

T.R.K.-A.,

D.O.B.: 8/11/11,

Minor children.

STATE OF WASHINGTON,

DEPARTMENT OF SOCIAL AND

HEALTH SERVICES,

Respondent,

DEAN ALEXIS,

Appellant.

No. 72005-8-I (consolidated with

case Nos. 72006-6-I and 72007-4-I)

DIVISION ONE

UNPUBLISHED OPINION

C3

CO

rv,

FILED: July 13, 2015

Trickey, J. — Dean Alexis appeals the trial court's termination of his

parental rights to his three children. He challenges several of the trial court's

findings offact. Butsubstantial evidence inthe record supports each ofthe court's

findings. We affirm.

FACTS

Dean Alexis is the father of N.M.P.K.-A. (born 3/16/2008), T.K.A. (born

7/21/2010), and T.R.K.-A. (born 8/11/2011). The children's mother is not a party

to this proceeding.1

The Department of Social and Health Services (Department) first became

The mother's parental rights were terminated on February 6, 2014.

' CV
No. 72005-8-1 / 2

involved in April 2012, after it had received referrals with allegations of negligent

treatment toward the children. Law enforcement officers had conducted a welfare

check on the residence after receiving a 911 hang up call. The officers noted

concerns that the mother was under the influence of methamphetamine. The

house was reported to be dirty and cluttered with clothing and toys. This was not

the first time police officers had responded to the home. On many other occasions,

officers had responded to the home finding the mother intoxicated. They had also

discovered many people drinking alcohol there and engaging in disorderly conduct.

The Department filed a dependency petition on June 5, 2012. Alexis

subsequently stipulated and agreed to the establishment of dependency.

Between September 2012 and March 2013, Alexis lived in Canada to

pursue a job opportunity. Upon learning that the children were being placed in

foster care, Alexis moved back to Washington, but was arrested and incarcerated

for 11 days. Alexis returned to Canada in October 2013.

The Department filed a petition to terminate Alexis's parental rights on

October 2, 2013. Alexis returned to Washington sometime in April 2014. After a

termination hearing held in May 2014, the trial court terminated Alexis's parental

rights.

Alexis appeals.

ANALYSIS

Parents have a fundamental liberty interest in the care and welfare of their

children. In re Dependency of Schermer. 161 Wn.2d 927, 941-42, 169 P.3d 452

(2007). To terminate parental rights, the Department must satisfy a two-pronged
No. 72005-8-1 / 3

test. In re Dependency of K.N.J.. 171 Wn.2d 568, 576, 257 P.3d 522 (2011). The

Department must first prove the statutory elements set forth in RCW

13.34.180(1)(a) through (f)2 by clear, cogent, and convincing evidence. K.N.J..

171 Wn.2d at 576-77.

Evidence is clear, cogent, and convincing if it established the ultimate fact

in issue as "'highly probable.'" In re Dependency of K.R.. 128 Wn.2d 129, 141,

904 P.2d 1132 (1995) (internal quotation marks omitted) (quoting In re Seqo, 82

Wn.2d 736, 739, 513 P.2d 831 (1973)). Ifthe trial court finds that the Department

2RCW 13.34.180(1) states, in pertinent part:

A petition seeking termination of a parent and child relationship may be

filed in juvenile court by any party, including the supervising agency, to the

dependency proceedings concerning that child. Such petition shall conform

to the requirements of RCW 13.34.040, shall be served upon the parties as

provided in RCW 13.34.070(8), and shall allege all of the following unless

subsection (3) or (4) of this section applies:

(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 of the

hearing, have been removed from the custody of the 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

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. 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 inthis 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 of his or her location and in accessing visitation or other

meaningful contact with the child.
No. 72005-8-1 / 4

has met its burden under RCW 13.34.180, it may terminate parental rights ifit also

finds by a preponderance of the evidence that termination is in the "best interest"

of the child. K.N.J., 171 Wn.2d at 577.

Where the trial court has weighed the evidence, our 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 of law. In re

Dependency of P.P.. 58 Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial

evidence' is evidence in sufficient quantity to persuade a fair-minded, rational

person of the truth of the declared premise." In re Welfare of T.B.. 150 Wn. App.

599, 607, 209 P.3d 497 (2009) (quoting World Wide Video. Inc. v. Citv of Tukwila,

117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the

findings offact are supported by substantial evidence "must be made in light ofthe

degree of proof required." PJ1, 58 Wn. App. at 25. In determining whether

substantial evidence supports the trial court's findings, this court does not weigh

the evidence or the credibility of witnesses. In re Dependency of E.L.F., 117Wn.

App. 241, 245, 70 P.3d 163 (2003).

Application of RCW 13.34.180(1 )(f)

Alexis contends that the Departmentfailed to prove, and the trial courtfailed

to consider, the recent statutory amendments set forth in RCW 13.34.180(1 )(f)

pertaining to incarcerated parents. He asserts that the factors apply to parents

who were in custody at some point during the dependency, regardless ofwhether

they were incarcerated at the time ofthe termination hearing. In a recent decision

of this court, In re Dependency of D.L.B.. No. 72421-5-1 (Wash. Ct. App. July ,
No. 72005-8-1 / 5

2015), we concluded that the amended factors only apply if the parent is

incarcerated at the time of the termination hearing. Accordingly, we reject Alexis's

contention.3

Current Unfitness and Little Likelihood that Conditions Would be Remedied

Alexis next challenges the trial court's determinations that he was currently

unfit to parent his children and that there was little likelihood that conditions would

be remedied so that his children could be returned to him in the near future. We

disagree.

The Department must prove that the parent is currently unfit and "[tjhat there

is little likelihood that conditions will be remedied so that the child can be returned

to the parent in the near future." RCW 13.34.180(1)(e); In re Welfare of A.B.. 168

Wn.2d 908, 921, 232 P.3d 1104 (2010).

"To meet its burden to prove current unfitness in a termination proceeding,

[the Department] is required to prove that the parent's parenting deficiencies

preventthe parent from providing the child with 'basic nurture, health, or safety' by

clear, cogent, and convincing evidence." In re Welfare ofA.B., 181 Wn. App. 45,

61, 323 P.3d 1062 (2014).

Alexis'sidentified parental deficiencies includedsubstance abuse, domestic

3 Notwithstanding Alexis's contention concerning application of the additional factors in

RCW 13.34.180(1 )(f), Alexis assigns error to the trial court's finding as to the first part of

the statute, which states "[t]hat continuation of the parent and child relationship clearly

diminishes the child's prospects for early integration into a stable and permanent home."

He also assigns error to the trial court's finding that termination of the parent-child

relationship is in the best interests ofthe children. ButAlexis fails to support these claims

of error with argument in his brief. The assignments of error are therefore waived.

Cowiche Canvon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

Nevertheless, a review of the record establishes that the challenged findings are

supported by the record.
No. 72005-8-1 / 6

violence issues, anger issues, and lack of parenting skills. In the order of

dependency, the trial court ordered Alexis to participate in a substance abuse

evaluation and follow any recommendations; complete random urinalysis testing;

complete a domestic violence batterer's assessment and follow any

recommendations; complete a psychological evaluation and follow any

recommendations; and participate in a parenting program.

Dr. Jason Prinster conducted a psychological and parental competency

evaluation of Alexis in October 2012. He found that Alexis presented many risk

factors affecting his ability to parent. These included psychiatric diagnoses,

emotional difficulties, history of substance abuse, and relationship, occupational,

and housing instability. At the time of the 2012 evaluation, Dr. Prinster

recommended that Alexis participate in a medication evaluation and mental health

counseling to address his symptoms associated with his psychiatric and emotional

difficulties, as well as an anger management program. Dr. Prinster also

recommended a parent-focused intervention to help Alexis improve his parenting

skills. Dr. Prinster concluded that ifAlexis did not participate in the recommended

services and ameliorate the risk factors identified in October 2012, these significant

risk factors would still be present in April 2014.

By the time ofthe termination hearing, Alexis failed to complete substance

abuse treatment, missed a significant number of random urinalysis testing, failed

to complete parenting education, and did not complete any service

recommendations made byDr. Prinster. The trial courtcorrectly found that despite

the offering ofthese services, Alexis failed to improve his parental functioning. His
No. 72005-8-1 / 7

failure to correct his deficiencies prevented him from being able to adequately

parent his children. The trial court did not err in finding that Alexis was currently

unfit to parent his children.

The trial court also properly found that there was little likelihood that

conditions would be remedied in the near future. The focus of RCW

13.34.180(1 )(e) is whether the identified deficiencies have been corrected. In re

Welfare of M.R.H.. 145 Wn. App. 10, 27, 188 P.3d 510 (2008). "Even where there

is evidence that the parent may eventually be capable of correcting parental

deficiencies, termination isstill appropriate where deficiencies will not be corrected

within the foreseeable future." In re Welfare of A.G., 155 Wn. App. 578, 590, 229

P.3d 935 (2010). Although the law provides no numerical standard to measure the

foreseeable future, this determination is a factual inquiry evaluated from "the child's

point of view," which varies with the child's age. In re Dependency of A.C., 123

Wn. App. 244, 249, 98 P.3d 89 (2004) (citing In reWelfare of Hall. 99Wn.2d 842,

851, 664 P.2d 1245 (1983)); see, e.g., In re Dependency of T.R., 108Wn. App.

149,165-66, 29 P.3d 1275 (one year is notforeseeable or near future for six-yearold child); Hall, 99 Wn.2d at 850-51 (eight months is not within the foreseeable

future offour-year-old child); In re Dependency ofA.W.. 53Wn. App. 22, 32, 765

P.2d 307 (1988) (one year is not in the nearfuture ofthree-year-old child); P.P..

58Wn. App. at 27 (six months is not in the nearfuture of 15-month-old child).

The Department social worker involved in the case testified that he believed

that Alexis would not be able to correct his parental deficiencies inthe near future.

He also concluded it would be detrimental to the children to give Alexis more time
No. 72005-8-1 / 8

to correct his parental deficiencies. The guardian ad litem confirmed this belief

and testified that Alexis's failure to complete necessary services impacted his

ability to safely parent his children. Substantial evidence supported the trial court's

findings that there was little likelihood that Alexis would correct his parental

deficiencies in the near future.

Affirmed.

yj (Mq^ j

WE CONCUR:

ferJttet,

8