IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of

D.L.B.,

D.O.B: 11/01/08,

Minor child.

STATE OF WASHINGTON,

DEPARTMENT OF SOCIAL AND

HEALTH SERVICES,

Respondent,

EDELYN SAINT-LOUIS,

Appellant.

No. 72421-5-1

DIVISION ONE

PUBLISHED OPINION

FILED: July 13, 2015

Trickey, J. — In 2013, the legislature amended the Juvenile Court Act, chapter

13.34 RCW, to ensure that the rights of incarcerated parents are protected throughout

various stages of the dependency and termination process. One of these amendments

is codified in RCW 13.34.180(1)(f), the amended language of which states that "[i]f the

parent is incarcerated," the trial court must consider several factors before terminating the

parent-child relationship. Here, the mother was not incarcerated at the time of the

termination hearing but was incarcerated for numerous months during the dependency.

She contends that the order terminating her parental rights must be reversed because

the trial court failed to consider the amended factors set forth in RCW 13.34.180(1 )(f).

We disagree and hold that the plain meaning of RCW 13.34.180(1)(f), as gleaned from

its language and surrounding statutes, supports the conclusion that the amended factors

apply only when the parent is incarcerated at the time of the termination hearing.

Accordingly, we reject the mother's contention, as well as others she raises on appeal,
No. 72421-5-1/2

and affirm the trial court's order terminating her parental rights.

FACTS1

D.L.B. was born on November 1, 2008, to Edelyn Saint-Louis. The father is not a

party to this termination proceeding.2

Since an early age, D.L.B. was exposed to domestic violence while in his mother's

care. In 2009, the father threw D.L.B. at Saint-Louis and then struck her in the head.

After this incident, Saint-Louis obtained a permanent no-contact order against the father.

Afew years later, when D.L.B. was approximately two years old, Saint-Louis and

D.L.B. moved in with the father's sister in Chicago for a few months. The father followed

them to Chicago shortly thereafter, and would visit the house often. He would frequently

harass and assault Saint-Louis. On at least one occasion, D.L.B. witnessed a physical

altercation between Saint-Louis and the father. The police arrested the father three times

during the three and a half months they resided in Chicago.

Saint-Louisand D.L.B. returned to Seattle. In early 2012, the Department ofSocial

and Health Services (Department) received reports concerning domestic violence

between Saint-Louis and her boyfriend at the time. The police had been called to SaintLouis's residence on multiple occasions to investigate. On February 8, 2012, the police

arrested Saint-Louis for leaving D.L.B. unattended for several hours. D.L.B. was taken

1Edelyn Saint-Louis assigns error to a number of the trial court's findings. However, shefails to

devote argument to several of these claimed errors in her brief. The assignments of error are

therefore waived. Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549

(1992). Saint-Louis also challenges several of the court's findings of fact in footnotes in her

opening brief. We need not address arguments raised in footnotes. State v. Johnson, 69 Wn.

App. 189, 194 n.4, 847 P.2d 960 (1993). In any event, a review of the record leads to the

conclusion thatthe challenged findings are either supported by the record orwere not material to

the court's decision.

2The father's parental rights were terminated on May 16, 2014, by order ofdefault. This appeal

concerns only the termination of Saint-Louis's parental rights.
No. 72421-5-1/3

into protective custody.

On March 8, 2012, the Department filed a dependency petition on D.L.B.'s behalf.

On May 11, 2012, D.L.B. was declared dependent as to both parents. The trial court

required Saint-Louis to complete the following services: (1) random urinalysis (UA) testing

two times per week; (2) a psychological evaluation with parenting component and

compliance with recommended treatment; and (3) a domestic violence support group.

In July 2012, the Department referred Saint-Louis to Dr. Steve Tutty for a

psychological and parenting evaluation. Saint-Louis completed the evaluation in October

2012. Dr. Tutty observed a positive bond between Saint-Louis and D.L.B. However, he

found that Saint-Louis presented with "a myriad of risk factors that threaten the safety and

well-being of [D.L.B.]"3 He opined that Saint-Louis's "presentation, testing outcomes, and

clinical/CPS history support psychological challenges best characterized by bipolar

illness, polysubstance abuse, panic disorder, executive functioning deficits, learning

disabilities, and histrionic traits."4

Dr. Tutty recommended against reunification of Saint-Louis with D.L.B. He

determined that Saint-Louis's prognosis for maintaining the safety and welfare of D.L.B.

was poor atthe time of the evaluation and in the foreseeable future. Dr. Tutty concluded

that it was highly unlikely that Saint-Louis would be able to remediate her parental deficits

within the timeframe allowed for the Department to establish permanency. He

nevertheless recommended she complete the following serviceswithin six months ofthe

November 2012 evaluation: (1) drug and alcohol evaluation and follow-up with all

recommendations; (2) medical consultation to explore additional psychotropic

3 Exhibit (Ex.) 16 at 13.

4 Ex. 16 at 13.
No. 72421-5-1/4

medications to target her mental health issues of bipolar illness, panic disorder, and

executive functioning deficits; (3) participation in the Incredible Years parent education

program; (4) monitored visitations about once a week; (5) participation in a domestic

violence support group; and (6) work with hersocial worker in obtaining suitable housing

and employment options.

D.L.B. was referred to the Foster Care Assessment Program (FCAP) for a

reunification assessment. In the FCAP evaluator's written report, dated December 12,

2012, the evaluator recommended against reunification. She recommended Saint-Louis

enroll in the Incredible Years parent education program "sooner rather than later."5

On November 5, 2012, Saint-Louis enrolled in a 30-day in-patient chemical

dependency treatment program to address her dependence on alcohol, cannabis, and

cocaine. She successfully completed that program and subsequently enrolled in an out

patient program in December 18,2012. She completed that program in April 2013. SaintLouis's UAs remained clean until May 2013, when she tested positive for alcohol during

a random UAtest. Her case worker recommended she participate in a relapse prevention

program. Saint-Louis was unable to begin classes until a week before the termination

trial in July 2014.

Following a dependency review hearing on May 30, 2013, the trial court found that

Saint-Louis wasin compliance with all court-ordered services exceptthatshe had missed

five random UA tests since March 2013 and had not attended parent education classes.

The trial court added another service to be completed by Saint-Louis: participation in

mental health counseling.

5 Ex. 17 at 10.
No. 72421-5-1/5

In July 2013, Saint-Louis was arrested for a hit and run charge. She was

incarcerated for approximately one month. In August 2013, she was released. On

October24, 2013, Saint-Louis failed to appear at a court hearing on the matter and, as a

result, a warrant was issued for her arrest.

In November 2013, Saint-Louis was arrested. She pleaded guilty to one count of

hit and run, one countofvehicular assault, and one countoftaking a motor vehicle without

permission in the second degree. She also pleaded guilty to two counts of attempted

forgery arising from a separate incident.

Saint-Louis was incarcerated from November 2013 to June 2014. On January 31,

2014, while she wasincarcerated, the Department filed a petition for termination of SaintLouis's parental rights.

For two brief periods, Saint-Louis was on work release. The first time was for

approximately one week in March 2014; the second was for approximately two weeks in

April 2014. While on hersecond work release in April, Saint-Louis's social worker, Alyssa

Livingston, met with her to review services, which had not been started but had been

referred. They spoke about setting up visits and discussed Saint-Louis's participation in

the Incredible Years parent education program.

Saint-Louis had the option of going on work release again, but she opted against

it. Nevertheless, she participated in domestic violence services while incarcerated. She

also saw someone from Sound Mental Health twice each week.

In June 2014, Saint-Louis called Livingston after she was released from jail. At

that point, Livingston made referrals for Saint-Louis to begin UA testing. She also made

referrals to the Incredible Years parent education program and scheduled visits between
No. 72421-5-1/6

Saint-Louis and D.L.B. Saint-Louis began the program in late 2013, but she missed

several classes and was discharged. She began the program again on July 29, 2014.

The termination hearing took place at the end of July 2014. The trial court

terminated Saint-Louis's parental rights.

Saint-Louis appeals.

ANALYSIS

Parents have a fundamental liberty interest in the care and welfare oftheir children.

In re Dependencv of Schermer, 161 Wn.2d 927, 941-42, 169 P.3d 452 (2007). To

terminate parental rights, the Department must satisfy a two-pronged test. In re

Dependencv 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)6 by clear,

cogent, and convincing evidence. K.N.J., 171 Wn.2d at 576-77.

RCW 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 tothe

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

RCW 13.34.070(8), andshall allege all of thefollowing 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) Thatthe child has been removed orwill, at the time ofthe 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) Thatthere islittle likelihood that conditions will be remedied so that the

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

. . . ; and

(f) That continuation ofthe parent and child relationship clearly diminishes

the child's prospectsfor early integration into a stable and permanent home. If the

parent is incarcerated, the court shall consider whether a parent maintains a
No. 72421-5-1/7

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

as '"highly probable.'" In re Dependencv 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)). If the trial court finds that the Department has met its burden under

RCW 13.34.180, it may terminate parental rights if it alsofinds by a preponderance ofthe

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, ourreview islimited to determining

whether the court's findings offact are supported by substantial evidence and whether

those findings support the court's conclusions of law. In re Dependencv 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. City ofTukwila, 117Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of

whether the findings of fact are supported by substantial evidence "must bemade in light

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

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

evidence orthe credibility of witnesses. In re Dependencv of E.L.F., 117 Wn. App. 241,

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

meaningful role in his or her child's life based on factors identified in RCW

13.34.145(5)(b); whether the department orsupervising 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 of his orher location and in accessing

visitation or other meaningful contact with the child.
No. 72421-5-1/8

Application of RCW 13.34.180(1 )(f)

Saint-Louis first contends that the termination order must be reversed because the

Department failed to prove, and the trial court failed to consider, the recent statutory

amendments pertaining to incarcerated parents. We disagree.

Effective July 2013, the legislature amended several statutes inthe Juvenile Court

Act in a lawentitled, "An Act Relating to the rights of parents who are incarcerated." Laws

of 2013, ch. 173 (amending RCW 13.34.067, .136, .145, .180). One of the amended

provisions was to RCW 13.34.180(1)(f), the sixth element of the parental rights

termination statute. Laws of 2013, ch. 173 § 4. The legislature added three specific

factors that the trial court must consider before terminating the parental rights of a parent

who "is incarcerated." Laws of 2013, ch. 173 § 4; see In re Dependencv of A.M.M.. 182

Wn. App. 776, 786, 332 P.3d 500 (2014). Amended subsection .180(1)(f) states, in part:

Ifthe parent is incarcerated, the court shall consider [(1)] 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)[t?]]; [(2)] whether the department or

7RCW 13.34.145(5)(b) (as amended by Laws OF 2013, ch. 173 § 3), provides:

The court's assessment of whether a parent who is incarcerated maintains a

meaningful role in the child's life may include consideration of the following:

(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;

(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 individualsor 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

8
No. 72421-5-1/9

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

[(3)] 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.

(Emphasis added.)

The parties dispute the application of RCW 13.34.180(1 )(f) to this case. SaintLouis asserts thatthe plain meaning ofsubsection .180(1)(f), when viewed in context of

the surrounding statutes, unambiguously conveys the legislature's intent to apply the

amended factors to a parent who wasincarcerated at somepoint during the dependency,

even if the parent was not incarcerated at the time of the termination hearing. The

Department, on the other hand, contends that the factors apply only if the parent is

incarcerated at the time of the termination trial.8 We agree with the Department. Upon

an examination of the plain language of RCW 13.34.180(1 )(f) and other related

amendments enacted in the same session law, we conclude that the factors contained

within subsection .180(1)(f) must be proven only if the parent is incarcerated at the time

of the termination hearing.

The issue before us is one ofstatutory interpretation, which we review de novo.

State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). The purpose of statutory

interpretation is to carry out the legislature's intent. State v. Eaton, 168 Wn.2d 476, 480,

229 P.3d 704 (2010). Construction of a statute must be consistent with the statute's

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

the child's best interest.

8The Department initially asserts that Saint-Louis waived this claimed error by failing to raise the

issue concerning RCW 13.34.180(1 )(f) at the termination hearing. However, this court has

discretion to review a claim raised for the first time on appeal, and we exercise that discretion

here. See State v. Blazina. 182 Wn.2d 827, 344 P.3d 680, 683 (2015) ("RAP 2.5(a) grants

appellate courts discretion to accept review of claimed errors not appealed as a matter of right.").
No. 72421-5-1/10

underlying purposes and must avoid constitutional deficiencies. Eaton, 168 Wn.2d at

480. Reviewing courts presume the legislature did not intend absurd results. Eaton. 168

Wn.2d at 480.

Statutory interpretation starts with the statute's plain meaning. State v. Slattum.

173Wn. App. 640, 649, 295 P.3d 788 (2013). "If the meaning of the statute is plain, the

court discerns legislative intent from the ordinary meaning of the words." Tesoro Ref. &

Mkta. Co. v. State. Dep't of Revenue. 164 Wn.2d 310, 317, 190 P.3d 28 (2008). '"In

determining the plain meaning ofa provision, we look to the textofthe statutory provision

in question, as well as the context ofthe statute in which that provision isfound, related

provisions, and the statutory scheme as a whole.'" State v. Garcia. 179 Wn.2d 828, 836-

37, 318 P.3d 266 (2014) (internal quotation marks omitted) (quoting State v. Ervin. 169

Wn.2d 815, 820, 239 P.3d 354 (2010)). We giveeffect to the plain meaning ofthe statute

if it is plain on its face. Slattum. 173 Wn. App. at 649.

Saint-Louis's interpretation conflicts with the verb tense used in the text of

subsection .180(1)(f). The statutory text, "if the parentis incarcerated," uses the present

tense form of the verb "to be." (Emphasis added.) Applying ordinary English grammar,

the present tense does not refer to parents who have already been incarcerated; rather,

it indicates that the subsection's application is limited to those currently incarcerated.

Thus, the plain language ofsubsection .180(1)(f) shows thatthe legislature contemplated

that RCW 13.34.180(1 )(f) be applied to parents who are incarcerated at the time of the

termination hearing, and not to parents incarcerated before the hearing.

The legislature's use ofspecific temporal language in other provisions ofthe 2013

law confirms that the legislature intended to limit the application of subsection .180(1)(f)

10
No. 72421-5-1/11

to parents who are incarcerated at the time of the termination hearing. For example,

RCW 13.34.145(4)(a)(iv)9 states that one "good cause exception" to filing a termination

petition is where "[t]he parent is incarcerated, or the parent's prior incarceration is a

significant factor in why the child has been in foster care . . . ." Laws of 2013, ch. 173 §

3 (emphasis added). RCW 13.34.145(4)(c) similarly provides specific temporal language:

"The constraints of a parent's current orprior incarceration . . . may be considered

Laws of 2013, ch. 173 § 3 (emphasis added). UnderRCW 13.34.180(1 )(e)(iii), the court

may consider "mitigating circumstances, such as a parent's current orprior incarceration."

Laws of 2013, ch. 173 § 4 (emphasis added). And under RCW 13.34.180(2), "[a]s

evidence ofrebuttal to any presumption established pursuant to subsection (1)(e) ofthis

section, the court may consider the particular constraints of a parent's current orprior

incarceration." Laws of 2013, ch. 173 § 4 (emphasis added). Thus, the legislature's

deliberate use oftemporal language in other provisions amended in the same session

law strongly suggests that its use of the present tense in "is incarcerated" was not

inadvertent. If the legislature intended to encompass prior incarceration in RCW

13.34.180(1 )(f), it would have done so.

Saint-Louis contends that the legislature's overarching changes in 2013 illustrate

its intent that a parent's incarceration be considered at all stages of the dependency

process, no matter when in thedependency the parent wasincarcerated. While we agree

that the overall purpose ofthe changes was to protect the rights ofincarcerated parents,

we do not read the amendments as broadly as Saint-Louis suggests. Rather, an

9RCW 13.34.145(4) wasrenumbered as RCW 13.34.145(5) when the code reviser incorporated

all 2013 amendments to this section. See Laws of 2013, ch. 173 § 3, ch. 206 § 1, ch. 332 § 3

(effective July 28, 2013).

11
No. 72421-5-1/12

examination of the amendments enacted in the 2013 law demonstrates the legislature's

intent to give incarcerated parents the opportunity to participate and have their rights

considered during discrete stages of the dependency and termination process, such as

during the case conference, when developing a permanency plan and at the permanency

planning hearing, and at the termination hearing. See Laws of 2013, ch. 173 § 1

(amending RCW 13.34.067(3) to require that an incarcerated parent be provided the

option to participate in the case conference through teleconference or videoconference);

Laws of 2013, ch. 173§ 2 (amending former RCW 13.34.136(2)(b)(i), recodified as RCW

13.34.136(2)(b)(i)(A) by Laws of2014, ch. 163 § 2, to require thatthe permanency plan

of care address how the incarcerated parent will participate in the case conference and

permanency plan meetings, include available resources at the facility where parent is

confined, and provide for visitation unless it is not in the child's best interests); Laws of

2013, ch. 173§ 3 (amending former RCW 13.34.145(4) to provide that at the permanency

planning hearing, the parent's prior or current incarceration may constitute a "good cause"

exception to ordering the Department to file a termination petition); Laws of 2013, ch. 173

§ 4 (amending RCW 13.34.180(2) to provide that as evidence of rebuttal to any

established presumption pursuant to RCW 13.34.180(1 )(e), the trial court at the

termination hearing may consider the constraints of the parent's current or prior

incarceration); Laws of 2013, ch. 173 § 4 (amending RCW 13.34.180(5) to state that

when a parent is sentenced to a long-term incarceration and hasmaintained a meaningful

role in the child's life, the Department must consider placements that allow the parent to

maintain the relationship). Thus, according tothe structure and language ofthe amended

provisions ofthe Juvenile Court Act, by the time of the termination hearing, if the parent

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No. 72421-5-1/13

was incarcerated during one of those prior stages of the dependency, the trial court has

already considered the parent's incarceration.

The plain meaning of the phrase, "is incarcerated," is unambiguous. A reading of

the plain language, along with the statutory scheme as a whole and related provisions

within RCW 13.34.180, makes clear that the trial court is not required to consider the

amended factors set forth in RCW 13.34.180(1)(f) if the parent is not incarcerated at the

timeofthe termination hearing, even if the parent was previously incarcerated during the

dependency. The trial court did not err.

Reasonable Efforts to Offer Services

Saint-Louis next contends that the Department failed to meet its burden under

RCW 13.34.180(1 )(d) of proving that it made reasonable efforts to offer or provide her

with all available services during herincarceration. She asserts the Department failed to

offer her UA tests, an adequate parenting education program, and referral to a chemical

dependency program. We disagree.

The Department may not terminate parental rights unless it proves that "all

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

within the foreseeable future have been expressly and understandably offered or

provided." RCW 13.34.180(1 )(d).

Aservice is necessary within the meaning ofthe statute if it is needed to address

a condition that precludes reunification ofthe parentand child. In reWelfare ofC.S.. 168

Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). The services offered must be individually tailored

to a parent's specific needs. In re Dependencv ofDA. 124 Wn. App. 644, 651,102 P.3d

847 (2004). The Department is not required to offer or provide services that would be

13
No. 72421-5-1/14

futile. In re Dependencv ofT.R.. 108 Wn. App. 149,163, 29 P.3d 1275 (2001). Services

that might have been helpful need not be offered when a parent is unwilling or unable to

make use of the service provided. In re Dependencv of S.M.H.. 128 Wn. App. 45, 54,

115 P.3d 990 (2005).

Saint-Louiswas referred to Intensive Family Preservation Services, UA testing, the

Incredible Years parent education program, a psychological evaluation, an FCAP

evaluation, and mental health counseling. She was provided bus fare tickets to enable

to her obtain those services.

Livingston testified she met with Saint-Louis several times to discuss services.

She reviewed the service plan with Saint-Louis in late December 2012. Livingston first

referred Saint-Louis to the Incredible Years parent education program in January 2013,

after Dr. Tutty had made the recommendation. Livingston spoke with Saint-Louis on the

phone and communicated with her via e-mail.

The Incredible Years parent education program and random UA tests were

available to Saint-Louis when she was on work release and before and after her

incarceration. Before she was incarcerated, Saint-Louis had numerous opportunities to

engage in these services. She never followed through with them. She missed several

UA tests and was referred to the Incredible Years parent education program on several

occasions before and after she was in custody.

Despite her receipt of referrals to services and encouragement by the Department

to engage in the services, Saint-Louis was unable or unwilling to complete many of the

services. The trial court's finding issupported by substantial evidence.10

10 Saint-Louis nevertheless contends that the Department failed to comply with RCW

13.34.136(2)(b)(i)(A). Under that provision, "If the parent is incarcerated," the permanency plan

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No. 72421-5-1/15

Current Unfitness and Little Likelihood that Conditions Would be Remedied

Saint-Louis next challenges the trial court's findings that she was currently unfit to

parent D.L.B. and there was little likelihood that conditions would be remedied so that

D.L.B. could be returned to her in the near future. Each finding is supported by substantial

evidence.

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 nearfuture." RCW 13.34.180(1 )(e); In reWelfare of A.B.. 168 Wn.2d 908,

921.232P.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 prevent the

parent from providing the child with 'basic nurture, health, or safety' by clear, cogent, and

convincing evidence." In re Welfare of A.B.. 181 Wn. App. 45, 61, 323 P.3d 1062 (2014).

By the time of the termination hearing, Saint-Louis had completed in-patient and

out-patient chemical dependency programs. But she had relapsed over one year earlier

and was just beginning a relapse prevention program. She had not been able to

successfully complete the 90 days of UA tests without missed or diluted UAs. She

participated in three domestic violence support groups, including one while in jail.

However, at the time of the termination hearing, Saint-Louis was living with a man who

had at least three domestic violence assault incidents, had a protection order issued

against him as to his former spouse, and violated that orderin 2012.

must "include treatment that reflects the resources available at the facility where the parent is

confined." RCW 13.34.136(2)(b)(i)(A). However, Saint-Louis does not appeal the permanency

plan order. We reject this argument.

15
No. 72421-5-1/16

Moreover, Saint-Louis was referred to the Incredible Years parent education

program on several occasions (December 27, 2012, January 2, 2013, May 16, 2013, and

after her June 2014 release from incarceration). This program was recommended by

both Dr. Tutty and the FCAP evaluator. Saint-Louis began the program in late 2013, but

she missed several classes and was discharged. She began the program again on July

29, 2014.

Although Saint-Louis had recently engaged in services, Livingston testified, SaintLouis had no history that would suggest that she would continue to engage in those

services and make progress. She testified that D.L.B. would be at risk because none of

the original issues that brought him into protective custody had been remedied.

In all, by thetime of the termination trial, Saint-Louis continued to have unresolved

domestic violence issues, lack of parenting skills, and potential chemical dependency

issues. As the evidence reflected, these uncorrected parenting deficiencies made SaintLouis a serious risk to D.L.B. and prevented herfrom being able to provide D.L.B. with

his basic needs. The trial court did not err in finding that Saint-Louis was currently unfit

to parent D.L.B.

Nor did the court errin finding thattherewaslittle likelihood thatSaint-Louis would

correct her deficiencieswithin the foreseeable 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 is still

appropriate where deficiencies will not be corrected within the foreseeable future." In re

Welfare ofA.G.. 155Wn. App. 589, 590, 229 P.3d 935 (2010). Although the law provides

16
No. 72421-5-1/17

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

Dependencv of A.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004) (citing In re Welfare of

Hall. 99 Wn.2d 842, 851, 664 P.2d 1245 (1983)); see, e.g.. LR,, 108 Wn. App. at 165-66

(one year is not foreseeable or nearfuture for six-year-old child); Hall, 99Wn.2d at 850-

51 (eight months is not within the foreseeable future of a four-year-old child); In re

Dependencv of A.W.. 53 Wn. App. 22, 32, 765 P.2d 307 (1988) (one year not in the near

future of three-year-old child); PJL, 58Wn. App. at 27 (six months not in near future of

15-month-old child).

Livingston testified that she believed there was little likelihood that conditions

would be remedied so that D.L.B. could be returned to his mother in the near future.

Livingston also said that Saint-Louis would have to consistently engage in services, such

as the Incredible Years parent education program, relapse prevention, individual mental

health counseling, for a minimum of six months before the Department would consider a

transition plan. But the Court Appointed Special Advocate testified that waiting that long

would be harmful to D.L.B. Substantial evidence supports the trial court's finding.

Affirmed.

IrioUe^ s) 4

WE CONCUR:

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