IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Dependency of F.Y.O. (dob: 03/02/2015), DIVISION ONE

Minor Child, No. 79941-0-I STATE OFWASHINGTON,

Respondent, UNPUBLISHED OPINION

V. MICHAEL WILLIAM FOSTER JR.,

Appellant. FILED: March 2, 2020 DWYER, J.

— Following a four-yeardependency and a five-daytrial, the courtterminated Michael Foster’s parental rights to his child. On appeal, Foster contends the Department of Children, Youth, and Families (Department)1 failed to carry its burden to prove several statutory prerequisites to terminafion. He also contends the Departmentfailed to meet its additional burden underthe federal and state Indian Child Welfare Acts, ICWA2 and WICWA.3 However, because unchallenged findings and substantial evidence supporttermination, we affirm.

1 on July 1, 2018, the newly created Department ofChildren, Youth, and Families (DCYF) took overchild welfare duties thatwere formerly the responsibility ofthe Department of Social and Health Services (DSHS). RCW43.216.906. Thus, in this opinion, the “Department” means DSHS before July 1,2018, and DCYF afterJuly 1,2018.

2 Indian Child Welfare Act, 25 U.S.C. § 1901.

~Washington State Indian Child Welfare Act, chapter 13.38 RCW.No. 79941-0-1/2

F.Y.O., an Indian child,4 was born in March 2015 and will be five years old
as of March 2020. F.Y.O. has lived his entire life in the care ofa maternal aunt. He has never lived with his parents. In April 2015, F.Y.O. was found dependent as to his mother.5 The identity of F.Y.O.’s fatherwas unknown atthattime. In July 2015, F.Y.O. was found dependent as to the unknown father. The court entered an order ofdependency and a dispositional order requiring the unknown fatherto come forward, contactthe Departmentsocial workerfor appropriate referrals, and establish paternity. Michael Fosterestablished paternity in December2015.6 In February2016, aftera review hearing, the court ordered Fosterto participate in a chemical dependency evaluation, a domesticviolence assessment, an age appropriate parenting class, a psychological evaluation with
a parenting component, and random urinalysis testing. The court’s order also required Fosterto obtain safe, stable, and drug/alcohol free housing, and maintain regularvisitation twice perweekwith F.Y.O. In July 2018, the Department petitioned to terminate Foster’s parental rights. The Department alleged, in pertinent part, that all ordered and necessary services had been offered or provided and there was little likelihood that

~ F.Y.O. qualifies as an “Indian child” underlcWA, 25 u.s.c. § 1903(4), because he is eligible forenrollmentas a member in the Fort Belknap Indian community.

~ The mother is not a party on appeal. 6 Foster is also the fatherof S.Y.O., born in March 2016. He voluntarilyterminated his rights to S.Y.O. Those rights are not at issue here.

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conditions would be remedied such that F.Y.O. could be returned to Fosterwithin the nearfuture. It also alleged that active, but unsuccessful, efforts were made to provide remedial services and to preventthe breakup ofthe Indian family and that placing F.Y.O. in Foster’s custodywould likely result in serious emotional or physical harm to the child. The termination trial took place overfive days in April 2019. Fosterdid not attend the firstthree days oftrial.7 Atthe hearing, the court considered the testimony ofTim Cole (the Department social worker assigned to Foster) Louise Doney (a Fort Belknap Tribal representative), Dr. Dana Harmon (a psychologist), Minu Ranna-Stewart (a clinical supervisor at Harborview Centerfor Sexual Assault and Traumatic Stress), JoeyJohnson (an intervention treatment supervisorat Evergreen Recovery Centers), Elisabeth Yaroschuk (the courtappointed special advocate (CASA) assigned to F.Y.O.), and Foster, and admitted 46 exhibits into evidence.8 On May 3, 2019, the trial courtterminated Foster’s parental rights. After entering numerous factual findings, the court concluded thatthe Department had established the necessary statutoryfactors by clear, cogent, and convincing evidence and thattermination was in F.Y.O.’s best interests. It also concluded thatthe Department had proved, beyond a reasonable doubt, that placing F.Y.O.

~When hefinally appeared on the fourth day oftrial, Foster blamed his absence on being sickand “trying to sleep.” Fosterdid not notify anyone about his illness, he claims, because he “wasn’table to charge [his] phone.”

8The courtalso considered the testimony oftwo additional witnesses, both ofwhom were service providers for

### S.Y.O.
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in Foster’s custodywould likely result in serious emotional or physical harm to the child. Foster appeals. We discuss additional facts in the relevant sections below.

To terminate parental rights, the Department must satisfy a two-pronged test. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). First, the Department must prove the sixtermination factors enumerated in RCW 13.34.180(1) by clear, cogent, and convincing evidence.9 K.N.J., 171 Wn.2d at 576-77. Once the Department establishes these statutoryfactors, the trial court mustthen make a finding ofcurrent unfitness before parental rights can be terminated. In re Parental Ricihts to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016). Ifthis burden is satisfied, termination may be ordered ifthe Department establishes, by a preponderance ofthe evidence, that it is in the best interests of the child. RCW 13.34.190(1)(b); K.N.J., 171 Wn.2d at 577. When termination proceedings involve an Indian child, as is the case here, ICWA and WICWA require the trial courtto make two additional determinations. First, the court mustfind by clear, cogent, and convincing evidence thatthe Department made “active efforts” to help the parent remedy his or her parental deficiencies. 25 U.S.C. 

### § 1912(d); RCW 13.38.130(1); In re Delendency of A.M., lO6Wn. App. 123, 130-31, 135,22 P.3d 828 (2001). Second, the court

~ “Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown bythe evidence to be ‘highly probable.” In re Dependency of KR., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (internal quotation marks omitted) (quoting In re Sego, 82Wn.2d 736, 739, 513 P.2d 831 (1973)).
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mustfind thatthe Department proved, beyond a reasonable doubt, thatthe parent’s continued custody ofthe child is likelyto result in “serious emotional or physical damage to the child.” 25 U.S.C. 

### § 1912(f); RCW 13.38.130(3). On review, we will uphold the trial court’s factual findings ifthey are supported by substantial evidence.10 In re Dejjendencyof RD., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). unchallenged findings are verities on appeal. In re DerendencyofM.S.R., 174 Wn.2d 1,9,271 P.3d 234 (2012). Wedefertothe trial court on issues ofconflicting testimony, credibility ofthe witnesses, and the weight or persuasiveness ofthe evidence. In re Welfare ofA.W., 182 Wn.2d ‘689, 711, 344 P.3d 1186 (2015). Ill Fostercontends thatthe “Department failed to establish nearly every” statutory prerequisite fortermination. We disagree. A Fosterfirst argues that because the Department did not offerservices to help him avoid future contactwith F.Y.O.’s mother, itfailed to offer all necessary services capable ofcorrecting parental deficiencies. In orderto terminate parental rights, the Department has a statutory obligation to provide all services thatthe court ordered,11 as well as “all necessaryservices, reasonably available, capable of correcting the parental deficiencieswithin the foreseeablefuture.” RCW 13.34.180(1)(d). “Necessary

10 “Substantial evidence” means “evidence in sufficient quantityto persuade a fair minded, rational person ofthe truth ofthe declared premise.” In reWelfare ofTB., 150 Wn. App. 599, 607, 209 P.3d 497 (2009).

~ Fosterdoes not dispute thatthe Department offered or provided all ordered services.
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services” are those services “needed to address a condition that precludes reunification ofthe parent and child.” In re Dependency ofA.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014). The Department musttailorthe services it offers to meet each individual parent’s needs. In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011). Here, the trial courtfound the Department had offered or provided Foster all necessary services. Foster challenges this determination, but it is supported bythe following unchallenged findings, which are nowverities: [2.12(b)(iv)] Parties agreed at a shared planning meeting thatthe father needed an additional service after he absconded with the child [F.Y.O.] forfourdays. The service identified was CBT [cognitive behavioral therapy] treatment provided by Minu Ranna Stewart at Harborview CenterforTrauma and Sexual Assault. [2.12(d)(vi)] Minu Ranna-Stewarttestified she worked with the fatherfora short period specifically on identifying ways to address the father’s awareness ofthe safety risk posed bythe motherand his role in keeping his children safe. Substantial evidence also supports the trial court’s finding. Foster’s cognitive behavioral therapy service was tailored to raise Foster’s awareness “of potential risks and safety concerns ofthe children being around their mom” and to help him “evaluate or understand what his role is in keeping the children safe.” Nothing in the record supports Foster’s assertion thatthe Department failed to offer a service thatwould help him to avoid future contactwith F.Y.O.’s mother. Foster also argues that, although the Department “provided some direct financial assistance, [it] did not provide any services actually designed to help [him] achieve long-term stability.” He claims thatthe Department should have provided him with life coaching, budgeting, and motivation services. However,

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none ofthese services were “identified by any service providers who worked extensively” with Fosteras necessary, nor is there evidence in the record to showthat Foster requested any such services priorto the termination hearing. A parent’s belated requestfora service is not sufficientto convertthatservice to a necessaryone. B Next, Foster contends thatthe termination order must be reversed because the Departmentfailed to prove that he was not capable of parenting F.Y.O. in the “nearfuture.” In termination proceedings, the Department must prove thatthere is “little likelihood that conditions will be remedied so thatthe child can be returned to the parent in the nearfuture.” RCW 13.34.180(1)(e). The focus ofthis factor is whether parental deficiencies have been corrected. In re Dejendencyof K.R., 128Wn.2d 129, 144, 904 P.2d 1132 (1995). “A determination ofwhat constitutes the nearfuture depends on the age ofthe child and the circumstances ofthe placement.” In re Dependency ofT.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005) (one year not “foreseeable” or“nearfuture” forsix-year-old child who had
never lived with the motherand the mother had been receiving services forsix years); In re Dependency ofT.R., 108 Wn. App. 149, 166, 29 P.3d 1275 (2001) (one yearwas beyond the nearfuture for a six-year-old who had been in foster
care herentire life).

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In this case, the trial courtfound the Department satisfied its burden under RCW 13.34.180(1)(e). Ample evidence supports this determination, including the following unchallenged findings: [2.12(e)(i)] The court identified two distincttime periods in the case. The firstfrom entry oforders regarding services until the date in August 2017 when Mr. Foster absconded with [F.Y.O.] During thattime, the father completed numerous services and participated in visitation regularly resulting in expanded visitation, and the intention atthattime overwhelmingly was to return [F.Y.O.] home to the father. The fatherwas developing a bond and working toward stability and had housing during this period. [2.12(e)(ii)] The second time period followed the father’s absconding with the child [F.Y.O.]. In this time period he completed a relapse prevention plan, completed [domesticviolence] treatment afterextensive delays, and participated in services with Minu Ranna-Stewart regarding the safety of his contactwith [F.Y.O.’s mother]. Visitation was resetto twice perweek monitored. During this time he was onlyvisiting a maximum ofonce a week and his explanation that he was busywith services and workwas notfound credible because during the priortime period he actively participated in more services and still managed to increase visitation including visitation with both boys. The father missed visitation during this time. Once instance ofa missed visit occurred near [F.Y.O.’s] fourth birthdaywhere the fatheralso failed to notify [social worker] Cole and the child was transported forthe visit. Court orders also reflect thefactthatthings were not going as well forthe father as they had been in the first 18 months. [2.12(e)(iii)] While the father made substantial progress in the first 18 months, as a result of bad choices he simply has not been able to recoveroverthe last 20 months with evidence of relapses, lost apartment, and inabilityto establish stability orto regularly maintain available visitation. [2.12(e)(iv)] The incidentwhere the father kept [F.Y.O.] forfour days in a hotel with the mother.

. . was important because
a. He knewthe motherwas noncompliantwith services and likely utilizing substances.

-8-No. 79941-0-l19 b. A no contact orderwas in place and priorarrests demonstrated knowledge ofthe risk he was taking of getting arrested during the time he had the child [F.Y.O.] in his care. c. He and [the mother] have a volatile relationship and engaging with herwhile having [F.Y.O.] in his care raised risk ofexposure of [F.Y.O.] to experiencing domesticviolence. d. The father’s contactwith [the mother] has also resulted in the loss of his apartment because the complex requested he leave due to the fights occurring between the father and [the mother].
e. While the CPS investigation found no evidence of physical harm the situation putthe child at substantial riskforthe reasons outline above. f. Itwas clearfrom father’s testimonythat he understands the risk ofongoing contactwith [the mother] but continued to place [F.Y.O.] at risk choosing his desires overthe best interest of [F.Y.O.] and therefore lacks the abilityto protect. His behaviorshowed he prioritized his interests and those of [the mother] overthose of [F.Y.O.]. [2.12(e)(v)] Furthermore, afterthis incidentthe father maintained a relationship with [the mother]. He admitted contact in May of2018 and in January of2019 butthe Court suspects more contact because the father believed the mother’s fifth child could have been biologically his child. Evidence later showed that itwas not his child. [2.12(e)(vi)] Minu Ranna Stewart [sic] explained thatthe father expressed a desire to facilitate contactwith [the mother] and/orto co-parentwith her. He did so disregarding the potential riskto [F.Y.O.]. The father himself recognized the dangerof being with [the mother] becausewhen he was with her he made poor choices. By having ongoing contact he prioritized his own interests and those of [the mother] above the interests of his child [F.Y.O.]. [2.12(e)(vii)] The fatheradmitted a recent relapse in March, 2019 on alcohol, and the timing of his relapses have, in the past, correlated with his contactwith [the mother]. The recent relapse occurred despite having attended relapse prevention showed ongoing riskto the child. The father admitted he had no currentAA sponsor.

-9-No. 79941-0-1110 [2.12(e)(viii)J The father’s participation in domestic violence was not completed until April 2019. The father’s lack ofattendance was the primary reason fordelay in completion ofthis service. [2.12(e)(ix)] The father appears to have a sincere beliefthat he will be ready in 90 days to take care ofthe child and obviously loves [F.Y.O.J However, the evidence since the setback nearly twenty (20) months ago indicates that such a belief is unrealistic. The child’s nearfuture is a matterof months notyears and the child cannot continue to waitfor Mr. Foster. Given these uncontested findings, it is clearthatthe Department established there to be little likelihood that Fostercould correct his deficiencies in
a future nearenough to successfully and safely parent F.Y.O. C Foster next argues thatthe Department failed to prove continuation of his relationship with his son clearly diminished F.Y.O.’s prospects forearly integration into a stable and permanent home under RCW 13.34.180(1)(f). This argument turns on Foster’s beliefthat he would be readyto parent F.Y.O. within 90 days ofthe termination hearing. Because we have already rejected Foster’s readiness argument, we also reject his argument under RCW 13.34.180(1)(f). D Next, Foster contends his arguments showthatthe Department did not meet its burden to prove that he is an unfit parent.’2 But because none of his arguments on appeal are persuasive, we disagree. There was ample evidence

12To establish current unfitness in a termination proceeding, the Department must prove by clear, cogent, and convincing evidence thatthe parental deficiencies “preventthe parentfrom providing the child with ‘basic nurture, health, orsafety.” In re Welfare ofA.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014) (quoting RCW 13.34.020).

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presented to supportthe trial court’s determination that Foster is an unfit parent.13 E Foster also contends thatthe Department failed to prove thattermination is in F.Y.O.’s best interests. “[TJhe goal ofa dependency hearing is to determine the welfare ofthe child and his [or her] best interests.” In re Welfare ofAschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). In orderto terminate a parent-child relationship, the trial court must determine by a preponderance ofthe evidence thattermination is in the best interests ofthe child. RCW 13.34.190(1)(b). The factors involved in determining the best interests ofa child are not capable of specification; each case must be decided on its own facts and circumstances. Aschauer, 93 Wn.2d at 695. Therefore, we place a 

### “verystrong reliance on trial court determinations ofwhat course ofaction will be in the best interest ofthe child.” In re Matterof Pawlinci, 101 Wn.2d 392, 401, 679 P.2d 916 (1984) (quoting In reWelfare ofTodd, 68 Wn.2d 587, 591, 414 P.2d 605 (1966)). Here, the courtfound termination ofthe parent-child relationship to be in F.Y.O.’s best interests, explaining that: CASA and [social worker] Cole testified that adoption is in the child’s best interest and that permanence will help the child feel more secure and safe in his placement. The Court concludes that termination of parental interest is in the best interest ofthe child due to the father’s inabilityto remedy his parental deficiencies and his rightfor a safe and stable home.

13 Forexample, Fostertestified to living in seven different locations during the dependency period. Attrial, hetestified about renting a room ata shared housing location and acknowledged that itwas notan appropriate place for F.Y.O. to live.
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-No. 79941-0-1/12 The social workertestified that F.Y.O. had resided with his maternal aunt forfouryears, was “extremely bonded” with the placement, and had “a very set routine” and “consistency” in his life. The CASA testified, “[B]ased on the amount oftime that has passed and the amount ofprogress or lack of progress that has been made, I would agree; I would encourage the Court to terminate parental rights.”“Where a parent has been unable to rehabilitate overa lengthy dependency period, a court is ‘fullyjustified’ in finding termination in the child’s best interests ratherthan ‘leaving [the child] in the limbo offostercare foran indefinite period” while the parent attempts rehabilitation. T.R., 108 Wn. App. at 167 (alteration in original) (quoting In re Dependency ofA.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). Ifthe health and safety ofthe child conflicts with the rights ofthe parent, “the rights and safety ofthe child should prevail.” RCW 13.34.020. The record supports the court’s finding thattermination is in F.Y.O.’s best interests. 

### lv A Fostercontends the Departmentfailed to exert active efforts to reunite him with F.Y.O. Specifically, he argues the Department did not help him identify housing resources, never involved the Tribe in coordinating services, and failed to integrate culture into his case plan. Again, we disagree. Before a parent’s rights to an Indian child can be terminated, ICWA requires that:

- 12-No. 79941-0-1/13 Any party seeking to effect a foster care placement of, or termination ofparental rights to, an Indian child under State law shall satisfythe courtthat active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup ofthe Indian family and thatthese efforts have proved unsuccessful. 25 U.S.C. 

## § 1912(d); RCW 13.38.130(1) (WICWA’s identical requirement). UnderWICWA, “active efforts” means “timely and diligent efforts to provide or procure such services, including engaging the parent or parents or Indian custodian in reasonably available and culturally appropriate preventive, remedial, or rehabilitative services. This shall include those services offered by tribes and Indian organizations whenever possible.” RCW 13.38.040(1)(a). Although ICWA does not define “active efforts,” the term is defined in ICWA’s implementing federal regulations, 25 C.F.R. 

## § 23.2.14 The federal regulations provide examples ofwhat may be included as active efforts, including: (1) Conducting a comprehensive assessment ofthe circumstances ofthe Indian child’s family, with a focus on safe reunification as the most desirable goal; (2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services; (3) Identifying, notifying, and inviting representatives ofthe Indian child’s Tribe to participate in providing support and services to the Indian child’s family and in familyteam meetings, permanency planning, and resolution ofplacement issues;

14 “Active efforts,” underthe federal regulations, “means affirmative, active, thorough, and timely efforts intended primarilyto maintain or reunite an Indian child with his or herfamily. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parentor parents or Indian custodian through the steps ofa case plan and with accessing or developing the resources necessaryto satisfythe case plan.

. . . Active efforts are to betailored tothe facts and circumstances ofthe case.” 25 c.F.R. §23.2. -13-No. 79941-0-1/14 (4) Conducting or causing to be conducted a diligent search forthe Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and supportforthe Indian child and the Indian child’s parents; (5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided bythe child’s Tribe; (6) Taking steps to keep siblings togetherwhenever possible; (7) Supporting regularvisits with parents or Indian custodians in the most natural setting possible as well as trial home visits ofthe Indian child during any period of removal, consistentwith the need to ensure the health, safety, and welfare ofthe child; (8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peersupport services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources; (9) Monitoring progress and participation in services; (10) Considering alternative ways to address the needs ofthe Indian child’s parents and, where appropriate, the family, ifthe optimum services do not exist or are not available; [and] (11) Providing post-reunification services and monitoring. 25 C.F.R. 

### § 23.2. Here, the trial courtfound “the Department utilized active efforts to prevent the break up ofthe Indian family by providing both financial assistance, transportation assistance and substantial help and motivation to encourage the father’s ongoing participation in services.” Several uncontested findings establish thatthe Department, indeed, actively identified services for Foster, encouraged Fosterto participate in

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services, supported Foster’s regularvisitation of F.Y.O., and provided Fosterwith financial and transportation assistance. [2.12(d)(vii)] The father reports working offand on throughoutthis case. He admitted receiving help with rent, VISA cash cards as well as ORCA cards. The [social worker] also provided rides to the father. [2.12(d)(viii)] The Department held a shared planning meeting that the father attended to discuss services. The [social worker] also regularly metwith the fatherand provided encouragement and addressed barriers to participation by providing financial support and transportation support. The fathertexted the social worker gratitude for his help restarting domesticviolence services at a time when the father’s lack of participation threatened his abilityto participate in ongoing treatment. Additionally, the social workertestified about providing services that matched Foster’s preferred hands-on learning approach. He spoke about having “a long-time relationship” with Foster, always being supportive of Fosterand of Foster being with his children, and having numerous “hands-on” conversations with Fosteraboutthe importance of obtaining stability. Foster, attrial, agreed thatthe social worker had tried to help him and was “absolutely” supportive. The social worker also testified of notifying the Fort Belknap Tribe— located in parts of North Dakota and Montana—ofthese dependency proceedings and that a tribal representative participated telephonically at review and planning hearings. There was no testimony thatthe Fort Belknap Tribe had
a presence, orwas able to offerservices, in Washington. Nevertheless, Doney, the Fort Belknap representative attrial, agreed thatthe Department had exerted active efforts in this case. She stated that “the Department has reached outto

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[Foster] and

. . . supported him while he was—he needed financial assistance with his rent, getting ajob and that sort ofthing so he can support his children.” Regarding housing assistance, Foster received that service from another community resource. He testified that a navigatorat Catholic Community Services had been helping him locate affordable housing for “almost a year.” In sum, the record supports the trial court’s finding thatthe Department exerted active efforts to reunite Fosterwith F.Y.O.15 B Under25 U.S.C. 

## § 1912(f), the Department has the burden of proving “beyond a reasonable doubt, including testimony ofqualified expertwitnesses, thatthe continued custody ofthe child bythe parent

. . . is likelyto result in serious emotional or physical damage to the child.” WICWA imposes an identical requirement. See RCW 13.38.130(3). Here, the trial courtfound the Department satisfied this burden, stating: [T]he Courtfinds thatthere is evidence supporting beyond a reasonable doubtthat [F.Y.O.] is at risk ofserious emotional or physical damage. That conclusion is based on the extended period oftime the child was waited forstability and permanence, the lack ofevidence thatthe fatherwill be able to do so in the nearfuture, and also because ofthe father’s lack ofgood decision making and the risk ofemotional/physical damage due to ongoing contactwith [the mother].

15 In a statement of additional authorities, Fostercites to In re Parental Rights to D.J.S., No. 36423-2-Ill, (Wash. Ct. App. Jan. 28, 2020), http://www.courts.wa.gov/opinions/pdf/364232.pdf, as a case reversing an order oftermination wherein the Department failed to engage in “active efforts” as required by ICWAand WICWA. D.J.S., however, is factually distinguishable from the present matter. There, Division Three discussed howthe Department made little more than service referrals and concluded that “active efforts” required much more. See D.J.S., No. 36423-2-Ill, slip op. at40-41.

- 16-No. 79941-0-1/17 Fostercontests this finding, butsubstantial evidence supports it. The Department’s qualified Indian expert, Doney, testified that placing F.Y.O. in Foster’s custodywould likely result in serious emotional or physical damage to the child because (1) the dependency had “been open for quite some time,” (2) Foster had “not demonstrated stability,” (3) Fosterwas “not consistentwith his visitation,” and (4) Foster’s instability could negatively affect F.Y.O.’s “social, emotional, cognitive, and academic outcome.” In addition to Doney’s testimony, the trial court orally ruled that Foster’s poor choices posed an ongoing riskto F.Y.O.,

Regardless ofwhetherthere is an active no-contact order or any otherprohibition on contact, the reality is that being with [the mother] shows poordecision-making that puts [F.Y.O.] at risk. It is clearfrom Mr. Foster’s testimonythat he understandsthose risks. It’s also clearthat he intends to continue to have contactwith [the mother] and would do so with [F.Y.O.] It is clearto the Court that.

. . he is choosing those desires overthe best interests of his child, and itshows, quite frankly, to the Courtthat he doesn’t have the abilityto make decisions necessaryto protect [F.Y.O.] The record supports the trial court’s finding, beyond a reasonable doubt, that placing F.Y.O. in Foster’s custodywould likely result in serious emotional or physical harm to the child. We affirm the court’s termination order.

A WE CONCUR:

___________ 

# / (~‘1

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