IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 2 Inthe Matterofthe Dependency of T.S., DOB: 04/24/11, Minor Child. No. 74910-2-1 S

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### DIVISION ONE ~~~ UNPUBLISHED OPINION V?

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## FILED: November21, 2016 c BECKER, J. —After a dependency ofmore than three and a halfyears, thejuvenile court entered an orderterminating the appellantfather's parental rights to his daughter. The father challenges the sufficiency ofthe evidence supporting several ofthejuvenile court's findings necessary for termination. He also claims thatthe courtviolated his right to due process by terminating his parental rights based on a parental deficiency ofwhich he did not receive adequate notice. The father fails to establish a due process violation, and substantial evidence supports the court's findings, which in turn supportthe order oftermination. We affirm. FACTS Tyrell Shavers, born in 1980, is the father ofT.S., born on April 24, 2011. T.S. has never lived with Shavers. T.S. lived with her mother until she was almost a year old. Shavers was "minimally involved" inT.S.'s life. In MarchNo. 74910-2-1/2 2012, T.S. and hertwo older brothers who are unrelated to Shavers were removed from their mother's care. Three months later, in June 2012, Shavers agreed to a dependency and dispositional orderfor T.S. According to the agreed order, T.S. was dependent because she had no parent or guardian or custodian capable ofadequately caring for her. See RCW 13.34.030(6)(c). The dependency orderestablished that Shavers has significant criminal history that includes crimes related to illegal drugs. Shavers was convicted of a drug crime in 1994. In 1997, he was convicted ofmanslaughter after he shot and killed a man during a drug transaction. After serving an 11-year sentence for that crime, Shavers was released from prison and ordered to participate in substance abuse treatment as a condition ofsupervision. He violated a condition of 

### supervision by consuming marijuana. It is unknown whether he engaged incourtordered drug treatment. In2010, Shavers received a deferred sentence for a 

### drug conviction involvingoxycodone. His deferred sentence was later revoked. The dispositional order required Shavers to establish paternity, participate 

### in twice weekly random urinalysis for 90 days, obtain a drug and alcohol evaluation and parenting assessment, and follow any treatment 

### recommendations resulting from those evaluations. The dispositional order further required Shavers to participate in family preservation services and to 

### engage a public health nurse ifT.S. were placed with him. To facilitate his compliance withthe dispositional order, social workers employed bythe 

### Departmentof Social and Health Services referred Shavers forservices. Social workers sent letters to Shavers on several occasions explaining the court-
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ordered requirements and at least one social worker spoke with Shavers by telephone. Nevertheless, Shavers took no steps toward compliance with the dispositional order. During the dependency, T.S. was placed in seven different homes, consisting offour relative placements and three foster care placements. A number ofdependency review and permanency planning hearings took place 

### between 2012 and 2015. Although counsel appeared on his behalf, Shavers did 

### not personally attend any ofthese hearings. The court repeatedly found that Shavers was not visiting T.S., was not participating inthe dependency, and was not engaging inany services offered by the Department. 

### T.S. was twice temporarily returned to the care of her mother. She was 

### removed fromthe custody of her motherfor the last time inSeptember2014. Shavers participated inthat 2014 hearing bytelephone. T.S. and one of her brothers remained togetherthroughoutthe dependency. Shavers was not aware 

### of all ofT.S.'s placements norwas he aware that she had been placed with any foster families. Shavers had minimal contactwith the Department, his 

### whereabouts were frequently unknown, and he did not request visitation through the Department. 

### In the spring of2015, Shavers began to have contactwith T.S. He 

### arranged visits directlywith T.S.'s caretaker, and neither the court appointed special advocate nor any of the social workers assigned to the case were able to observe Shavers interactwith T.S. According to Shavers, he visited T.S. approximately once a month.
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### The Departmentfiled a petition to terminate the parental rights of both parents in May2015. A few weeks before the January 2016 trial, T.S.'s mother relinquished her parental rights. T.S. was almostfive years old atthe time of trial. She had made 

### developmental strides overthe previous two and a halfyears whileattending a therapeutic preschool program at Childhaven. She had also benefitted from mental health counselling following a diagnosis ofposttraumatic stress disorder. 

### T.S. has sickle cell trait, which requires frequent monitoring. There were treatment meetings at Childhaven every three months to assess T.S.'s progress. Shavers attended one such meeting around August 2015. Childhaven staff invited Shavers to return to visit with T.S. at Childhaven, but he declined and was 

### "not interested" because the facility reminded him of a jail on account of its locked doors and outside bars. Shavers did not feel T.S. needed to be in that 

### program. Shavers also believed thatT.S. did not need counseling. Although the trial was continued twice to allow Shavers time to address his outstanding warrants, at the time of trial inJanuary 2016, Shavers still had warrants for a 2013 charge of driving underthe influence and domestic violence charges. Shavers claimed the domestic violence charges were based on a false report made by his current girlfriend. He did not appear in person at trial. He
was allowed to participate by telephone. Just days before trial, Shavers, his girlfriend, and theirtwo children had moved to Shavers' aunt's home because offinancial difficulties. He said they did not intend to remain at his aunt's home for long and planned to relocate as soon
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as they could afford to do so. Shavers testified that he had at least nine biological children. He had never been employed outside ofprison. Shavers explained that he had not been involved inthe dependency case because he "imagined" thatthe dependency was T.S.'s mother's "issue" and he thought that T.S. would be returned to her care. Shavers said itwas not until the Departmentfiled the petition for termination that he realized T.S. might not be reunited with her mother and also learned that he was required to participate in services. He testified that around the same time, he heard that a new social workerwas assigned to the case and because he thought itwould be bestto speak to the new social worker, he took no action. He acknowledged that he "could have done a lotmore" during the dependency. Shavers insisted that he
was now ready, willing, and able to engage in services but also said that participation would be difficultbecause he took care of two of his children during 

### the day while his girlfriend worked. He said he would "love more than anything" for T.S. to live with him eventually, once his family obtained "stable housing." Shavers and three of his family members testified that he and T.S. shared


### a strong bond and thatT.S. had frequent contactwith Shavers and his extended family. However, according to otherwitnesses, T.S. was attached to her brothers and her mother but had spent littletime with Shavers and did not really know him. Shavers was uncertain ofwhen he had last seen T.S. He said he saw her in December 2015 but also admitted that it could have been earlier.No. 74910-2-1/6
The courtfound that the Department proved the elements of RCW 13.34.180(1), concluded that Shavers was currently unfit to parentT.S., and entered an orderterminating his parental rights. He appeals. ANALYSIS Parents have fundamental liberty and privacy interests inthe care and 

### custody oftheir children. Inre Welfare ofA.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298, review denied, 127 Wn.2d 1025 (1995). Terminating parental rights 

### should be allowed only "'forthe most powerful reasons'." A.J.R., 78 Wn. App. at 

### 229 (internal quotation marks omitted), quoting Inre Welfare ofSego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973). 

### Washington courts use a two-step process when deciding whetherto 

### terminate parental rights. InreWelfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010); RCW 13.34.190. Underthe first step, the statutory requirements 

### thatthe Department must prove by clear, cogent, and convincing evidence are setforth in RCW 13.34.180(1): 

### (a) Thatthe childhas been found to be a dependent child; (b) Thatthe court has entered a dispositional order pursuant to RCW 13.34.130; 

### (c)Thatthe childhas been removed . . . from the custody of the parentfor a period of at least six months pursuantto a finding of dependency; 

### (d) Thatthe services ordered 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) Thatthere is little likelihoodthat conditions will be remedied so thatthe child can be returned to the parent inthe near future.
. . .

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

### Second, the juvenile court must considerwhether, under a preponderance of the evidence standard, terminating parental rights is inthe best interestof the child. RCW13.34.190(1)(b). 

### Evidence is clear, cogent, and convincing if itshows the ultimate fact at issue is highly probable. Inre Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 

### P.2d 113 (1999). On review, thejuvenile court's findings will not be overturned if supported by substantial evidence. K.S.C.. 137 Wn.2d at 925. Evidence is 

### substantial if it is sufficientto persuade a fair-minded person ofthe truth ofthe declared premise. In re Welfare ofC.B., 134 Wn. App. 942, 953, 143 P.3d 846 

### (2006). This court does not make credibilitydeterminations or weigh evidence on review. C.B., 134 Wn. App. at 953. "The trialjudge has the advantage of having the witnesses before him or her, and deference to the findings is ofparticular importance indeprivation proceedings." K.S.C., 137 Wn.2d at 925. Likelihood of Remediation and Current Unfitness Shavers contends that substantial evidence does not supportthe court's findings that he was currently unfit to parentT.S. and there was littlelikelihood that conditions could be remedied in the near future. To meet its burden to prove current unfitness in a termination proceeding, the Department must prove that the parent's deficiencies preventthe parentfrom providing the child with basic nurture, health, or safety. In re Welfare ofA.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014). The focus ofRCW 13.34.180(e) is
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whether identified deficiencies have been corrected. In re Welfare of M.R.H., 145 Wn. App. 10,25, 188 P.3d 510, review denied, 165Wn.2d 1009 (2008), cert denied, 556 U.S. 1158 (2009). The failure to substantially improve parental deficiencies within 12 months following entry ofthe dispositional ordergives rise to a rebuttable presumption thatthere is littlelikelihood that conditions will be remedied so thatthe child can be returned to the parent inthe nearfuture. RCW 13.34.180(1 )(e). A parent's unwillingness to avail himselfofremedial services 

### within a reasonable period is "highly relevant" to the court's determination as to 

### whetherthe Department has satisfied RCW 13.34.180(1)(e). In re Welfare of T.B., 150 Wn. App. 599, 608, 209 P.3d 497 (2009). Even ifevidence shows the 

### parent may eventually be capable ofcorrecting his or her deficiencies, termination is stillappropriate where the correction will not likelyoccurwithinthe foreseeable future. In re Welfare ofA.G.. 155 Wn. App. 578, 590, 229 P.3d 953 

### (2010), reversed on othergrounds on remand, 160 Wn. App. 841, 248 P.3d 611 (2011). Shavers claims there was no evidence that he has a current substance 

### abuse problem, lacks adequate parenting skills, orhas untreated mental health issues. But his illegal drug use and lack of involvement inparenting T.S. were established as parental deficiencies. He agreed to the facts underlying these 

### deficiencies forpurposes of the dependency. The Departmentwas not required 

### to reprovethese facts in the termination proceeding. In re Dependency ofK.R., 128Wn.2d 129, 141-42, 904 P.2d 1132(1995).

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### Inthe dispositional order, Shavers agreed to address substance abuse and his absence from T.S.'s life by participating inurinalysis testing and obtaining 

### substance abuse and parenting evaluations. The agreed orderprovided thatthe 

### Departmentwould consideran omitted urinalysis to be a positive result. It is undisputed that more than three and a halfyears later, Shavers had not obtained eitherevaluation or submitted to urinalysis testing. Although Shavers testified at trialthat he fullyintended to engage in all required services ifthe courtwould allow him additional time, the courtwas not compelled to acceptthattestimony. 

### Given the "history ofthe dependency," the court determined itwas unlikelythat Shavers would, in fact, followthrough. This finding is supported by evidence Shavers had previously expressed a willingness to participate inthe dependency 

### and engage inservices, but then failed to do so withoutexplanation. The court did not unlawfully shiftthe burden of proof byconsidering Shavers' inaction 

### throughoutthe dependency as evidence that the issues identified at the time of the dependency remained unresolved. 

### Contrary to the court's explicit finding, Shavers claims the evidence 

### unequivocally demonstrates his parental fitness because he is the primary caretakerof two of his other children. Aparent "has a due process right not to have the State terminate his or her relationship with a natural child inthe 

### absence of an express or implied finding that he or she, at the time of trial, is 

### currentlyunfitto parentthe child." A.B., 168 Wn.2d at 918. This inquiry is not limited solely to consideration of the parent's deficiencies. In re Parental Rights 

### ofK.M.M., Wn.2d , 379 P.3d 75, 88 (2016). The court must consider
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whether a parent is capable ofparenting the particular child given the child's specific needs. K.M.M., 379 P.3d at 88. Shavers relies on In re Interest of S.G., 140 Wn. App. 461, 469, 166 P.3d 802 (2007), to argue that the courtterminated his parental rights based solely on evidence that he failed to participate in services. In S.G., the trial court expressly concluded that the father had no parental deficiencies and that services were ordered only to determine ifany problems existed. S.G., 140Wn. App. at468- 69. On appeal, the court held that a parent cannot be denied the right to parent his child "on the offchance that he may have a problem unknown to the State." S.G.. 140 Wn. App. at 469. In contrast, here, the court identified parental deficiencies and Shavers 

### agreed to the underlying facts establishing those deficiencies. Thejuvenile court found that Shavers was currently unfit to parent based on his failure to address 

### those deficiencies, his ambivalence toward being a full-time parentto T.S., and 

### his failure to appreciate and prioritize her needs. Specifically, the courtfound: The child's father is currently unfit to parentthis child. This is 

### exhibited by his residential instability and his failure to support his 

### eight (8) otherchildren. The tone ofMr. Shavers testimony on January 26, 2016 is concerning inthat itwas rambling, rapid and at times incomprehensible. [T.S.] is treated for [posttraumatic stress disorder] at Childhaven. Mr. Shavers expressed resistance to this treatment and beliefthat [T.S.] would not have issues ifshe were in his home. Mr. Shavers has demonstrated that he puts his own interests before those of [T.S.]. He has demonstrated this by not 

### clearing up three-year old warrants so that he could appear in person for trial and failing to participate inhertherapy at Childhaven, among other concerns.

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The courtfurther found that Shavers had only "intermittent" contactwith T.S., never set up a regular visitation schedule with the Department, had active warrants, and took no steps to engage in services or to "otherwise pursue custody" ofT.S. There was evidence and testimony that Shavers was "very much absent" from T.S.'s life. Shavers only began seeing T.S. regularly in2015, when she was four years old, and he was no longer doing so by the time of trial. Shavers' 

### testimony reflected his lack ofawareness ofthe details ofT.S.'s life. Although Shavers now claims that he pursued custody by expressing interest inplacement to one social worker and obtaining a reference for a provider at some point, the 

### evidence, including Shavers' own testimony, supports the court's finding that he did not participate inthe dependency process and took no significant action in
overthree years to gain custody. Shavers also claims thatthe court's finding of "residential instability" is unwarranted because there was no evidence to suggest he was not welcome to 

### stay with his auntforas long as he wished. Butagain, Shavers' own testimony supports the findingthat his current housing situation was temporary and his future housing circumstances were uncertain. Shavers expressly testified that 

### placing T.S. in his carewhile he was living at his aunt's home would not be ideal, but he hoped she could "eventually" live with himonce he secured new housing. Shavers also disputes the court's determination that his inaction on his 

### outstanding warrants reflects a failure to prioritize T.S. Shavers testified that he failed to address the warrants because ofscarce financial resources and his
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### current caretaking responsibilities. But Shavers' explanation does not fully explain his failure to take action since he had several years to act on the warrants. The evidence supports the inference drawn by the court. 

### Inspite ofevidence that both counselling and therapeutic day care were beneficial to T.S., Shavers did not appearto understand the reasons why T.S.


### was engaged inthese services or support her participation. Shavers points out thatwhen directly asked, he said he would allow T.S. to continue attending the Childhaven program. But he fails to acknowledge that he remained equivocal aboutthe issue, stating that he "didn't likewhat [he] saw" at Childhaven, 

### suggested itwas inappropriate forexperts to "dissect" and diagnose T.S., and continued to profess that being placed with family would resolve any issues T.S.
had. 

### Although the court described Shavers' rambling and sometimes 

### incoherenttestimony as "concerning," the court did not find that he had a mental health disorder or connectthe finding aboutthe "tone" of his testimony to a 

### determination ofunfitness or a parental deficiency. As the courtexplained in its 

### oralruling, the issue ofShavers' presentation was relevant to the estimate of the amount oftime itwould take for Shavers to fulfill the requirements ofthe 

### dispositional order. Shavers argued that itwould be possible to complete evaluations within 30 days and that, considering evidence that he is a capable 

### parent to otherchildren, he "mightnot need any kind offollow through" as a result of a parenting assessment. Based on Shavers' testimony and demeanor, the courtdisagreed, observing that an evaluation wouldlikely lead to a
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recommendation for mental health treatment. The court found that even if 

### Shavers immediately began to comply with the dispositional order, itwas reasonable to assume that it would take a minimum of6 months to fulfill the 

### requirements. Ultimately, without evaluations, the courtdetermined thatthere
was "no way to know" whether a 6-month estimate was accurate or ifmore time would be required for Shavers to show progress in correcting his deficiencies. The court determined that even if 6 months was sufficient, this length oftime was
not within the foreseeable future for T.S. 

### Shavers had completed no services directed toward addressing his 

### parental deficiencies and made no progress toward unification inalmostfour years since T.S. was firstremoved from her mother's care. Accordingly, substantial evidence inthe record supports the court's findings that Shavers was 

### currently unfit to parentT.S. and there was little likelihoodthat conditions would be remedied so that T.S. could be placed in his care inthe nearfuture. Diminished Prospects 

### Shavers challenges the court's findingthat continuation of the parent-child relationship clearly diminished T.S.'s prospects for an early integration into a 

### permanent and stable home. See RCW 13.34.180(f). He argues that, contrary to the court's finding, his home was stable and ifplaced with him, T.S. would benefitfrom connections to extended family. Butthe main focus of this factor is 

### not the stability ofthe parent's home, butwhetherthe parent-child relationship 

### impedes the child's prospects for integration. K.S.C., 137 Wn.2d at 927.

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### Again, Shavers testified that his housing situation was unstable, which


### was why he asked the courtto defer placing T.S. in his care. More importantly, it is undisputed thatT.S. had been dependentfor more than three and a halfyears and had never lived with Shavers. There was testimony that she was bonded to the caregivers in her current placement, was adoptable, and had prospects for adoption. The evidence amply supports the court's finding that continuation of the parent-child relationship impeded T.S.'s prospects for early integration into a stable and permanent home. NoticeShavers claims thatthe trial court violated his right to due process by terminating his parental rights, in part, based on unaddressed mental health issues, a deficiency ofwhich he did not receive adequate notice before the fact finding hearing. Due process inthe context of parental rights requires "'that parents receive notice ofthe specific issues to be considered'" at a termination hearing. In re Dependency ofA.M.M.. 182 Wn. App. 776, 791, 332 P.3d 500 (2014), quoting In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970). Such notice is required "'to prevent surprise, helplessness and disadvantage.'" 

### A.M.M., 182Wn. App. at 791, quoting Martin. 3 Wn. App. at410. InA.M.M., the dependency proceedings and termination hearing focused
on the mother's substance abuse problems. A.M.M., 182 Wn. App. at 780-83. But the courtterminated her parental rights based on a separate parental 

### deficiency, inaddition to substance abuse, thatwas not stated inthe termination
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or dependency petition and ofwhich she was not informed before trial. A.M.M., 182 Wn. App. at 792. This court reversed and remanded for thejuvenile courtto determine whethertermination was appropriate on the basis ofthe parental deficiencies ofwhich the motherwas given adequate notice. A.M.M., 182 Wn. App. at 792-93. As explained, the court inthis case did not conclude that Shavers had a mental health disorder, nor base its termination ruling on any deficiency related
to Shavers' mental health or his need for mental health treatment. Shavers was notified ofthe specific issues to be considered atthe termination hearing, 

### namely, his lack ofconsistent involvement inT.S.'s lifeand failure to take action toward correcting his parental deficiencies. While the mother inA.M.M. was unfairlysurprised when she was made aware of a parental deficiency that could supporttermination onlywhen a social workertestified about it at trial, Shavers


### was not unfairlydisadvantaged here because the court evaluated his trial testimony. Shavers fails to establish a due process violation.
Affirmed. 

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