Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of          )
C.H., DOB 1/1/09; R.P., DOB 4/15/01;    )           No. 66943-5 (consolidated 
and R.W., DOB 4/12/06.                      )       with 67047-6, 67048-4 & 67049-2)    
                                            )
STATE OF WASHINGTON,                        )       DIVISION ONE
DEPARTMENT OF SOCIAL AND                            )
HEALTH SERVICES,                            )
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            )
TAJANA WALLACE,                             )
                                            )
                      Appellant.            )       UNPUBLISHED OPINION
------------------------------------------------------)
In the Matter of the Dependency of          )       FILED: March 5, 2012
C.H., DOB 1/1/09.                           )
                                            )
STATE OF WASHINGTON,                        )
DEPARTMENT OF SOCIAL AND                            )
HEALTH SERVICES,                            )
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            )
CAREY ALLEN HAYES, SR.,                     )
                                            )
                      Appellant.            )
________________________________)

       Becker, J.  --  The trial court terminated Tajana Wallace's parental rights 

to three of her children.  The trial court also terminated the parental rights of  

66943-5-I/2

Carey Hayes, father to the youngest of the three children.  Because substantial 

evidence supports the trial court's termination orders, we affirm.  

                                        FACTS

       According to the findings of fact not challenged on appeal, Tajana 

Wallace, 37 years old, is the biological mother of nine children.  None of her 

children are in her care.  Three of Wallace's children are at issue in this 
consolidated case:  RP, a boy age 9; RW, a girl age 4; and CH, a boy age 2.1  

The biological father of CH is Carey Hayes, 45 years old.  The biological father 

of RP and alleged father of RW is a different man whose parental rights were 

terminated by default; he is not a party to this case.  Hayes is also the biological 

father of Wallace's two youngest children, ZH and AH.  At the time of trial, these 

two children were subject to different dependency proceedings.  They are not at 

issue in this case.

       According to testimony at trial, Wallace met Hayes through mutual 

friends.  They had a romantic relationship from 2007 into 2010.  At trial in 

December 2010, both said that they were not in a relationship, but considered 

themselves friends.  

       Wallace is divorced.  Hayes is married.  Hayes has no biological children 

with his wife.  He has a son from a previous relationship, age 19.  His wife has 

children from another relationship.  

       Hayes has a significant history of felony convictions and of selling drugs 

       1 Ages are as of the time of the termination trial which started in December 
2010.
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to support himself.  Hayes' testimony indicates that he has not had steady 

employment.  He most recently did seasonal work, including lawn and ground 

maintenance.

       Wallace has a 20 year history with the Department of Social and Health 

Services (Department), including a previous termination of her parental rights.  

She has struggled with substance abuse and addiction.  She has tried drug 

treatment at least five times between 2001 and 2010.  

       In December 2008, Wallace was admitted to a residential chemical 

dependency treatment program for pregnant women.  During her stay there, she 

gave birth to CH in January 2009.  Shortly thereafter, the State filed dependency 

petitions against Wallace for RP, RW, and CH in Snohomish County. RP and 

RW were placed in protective custody on March 9, 2009.  These children were 

found to be dependent as to Wallace on April 14, 2009.

       The Department identified Wallace's parental deficiencies as including a 

long and extensive history of drug addiction and abuse, mental health issues, 

parental incompetency or a general inability to parent, legal problems, and a 

lack of safe, stable, and suitable housing.  Services offered to Wallace included 

the dependency process workshop, drug and alcohol evaluation and treatment, 

random urinalysis testing, parenting classes, parenting assessment, mental 

health therapy, and casework management.

       After CH was born, Hayes did not initially establish paternity.  According 

to the dependency petition filed by the State against Wallace, Hayes was asked 

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to take voluntary urinalysis testing shortly after the birth of CH.   But in March 

2009, he told a Department social worker that he would no longer do urinalysis 

testing and would not cooperate with the Department.  According to Marie 

Ramirez, the social worker assigned to CH's case in 2010, Hayes did not 

communicate further with the Department until August 2009.  In that month, he 

finally established paternity.  

       Wallace's substance abuse problem continued in 2009.  After she 

completed the residential treatment program in June 2009, she was abusing 

substances again by the next month.  CH was removed from her care on July 20, 

2009, and placed elsewhere.  In July and September of 2009, Wallace was 

arrested for probation violations.  Her drug treatment sentencing alternative was 

revoked, and she was sent to prison.  

       Hayes was served with a dependency petition in August 2009.  He did not 

file a response.  CH was found dependent by default as to Hayes on October 27, 

2009. The court ordered Hayes to complete a drug and alcohol evaluation, 

participate in random urinalysis testing, and complete a mental health 

assessment.

       Wallace, still in prison, gave birth to their second child, ZH, on January 8, 

2010.  ZH was released into Hayes' care.   

       Wallace's substance abuse problems continued.  After her incarceration, 

she was released to a clean and sober house in March 2010.  A couple of 

months later in May, however, she was found in her room, unresponsive, with 

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numerous narcotic prescriptions.  Paramedics were called and were able to 

revive her with a treatment used for narcotic drug overdose.  The State moved to 

terminate Wallace's parental rights on May 6, 2010.  In August 2010, she

completed an inpatient treatment program.  By September 2010, she was using 

and abusing prescription pain medication.  

       Meanwhile, Hayes initially appeared to be making some progress.  In the 

first half of 2010, he appeared to be taking good care of ZH and was also 

involved with CH.  Asked when Hayes started his visits with CH, Ramirez 

testified it was her understanding that, excluding Hayes' absence and 

noncooperation with the Department from March to August 2009, Hayes was 

"involved pretty much all along."  According to Ramirez, Hayes' visits were 

reported to go well and were regular from August 2009 up to May 2010.  A letter 

from the Odessa Brown Children's Clinic, where CH had been seen from 

January to May 2009, stated that Hayes was an involved parent and active in 

CH's health care.  Ramirez admitted the Department was considering the 

possibility of transferring CH to Hayes' care in 2010.

       Ramirez testified that the Department began to take a less favorable view 

of Hayes in April and May 2010 upon learning that he had recently been in jail.  

The record indicates Hayes was in jail from May 3 to May 6, 2010, for failure to 

appear at a probation violation hearing in October 2009.  Ramirez heard from a 

Department of Corrections employee that ZH had been left in Wallace's care by 

Hayes while he was in jail.  Moreover, according to an unchallenged finding, 

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Wallace herself voiced concerns to department staff in May 2010 about Hayes' 

drug use, his temper, and his behavior around his stepchildren.  

       The State filed its petition to terminate Hayes' parental rights with CH on 

May 6, 2010.  The petition stated in part that Hayes was currently parenting his 

youngest child, ZH, but it had not been determined whether he is capable of 

parenting more than one child.  The petition also stated Hayes was mainly 

compliant with court ordered services.  

       According to an unchallenged finding, in May 2010, someone at the 

Department called the police to conduct a welfare check on ZH because Hayes 

had not complied with a request to bring ZH to meet with a Department social 

worker.  On May 13, police went to an address provided by Hayes, but it was 

actually the home of Hayes' wife.  Police found Hayes and his wife there with 

ZH.  Police arrested Hayes after discovering that he had a no-contact order with 

his wife.  A police report states that as Hayes was being arrested, Hayes 

pleaded, "please don't do this, they're gonna take my kids."  Hayes elbowed one 

of the officers in the face. The State charged Hayes with assault and violation of 

a no-contact order.  Hayes pleaded guilty, and his suspended sentence on the 

previous domestic violence charge from 2009 was revoked.  As a result, he was 

incarcerated from May 2010 to January 2011.  He was unable to participate in 

services because there were no services reasonably available to him in jail.  

       A consolidated termination of parental rights trial began on December 2, 

2010.  It was interrupted in mid-December because of the impending birth of 

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Wallace's and Hayes' third child.  This child, AH, was born in January 2011,

addicted to opiates that Wallace ingested while pregnant.  Because AH had 

withdrawal symptoms at birth, the child was required to stay in a pediatric interim 

care center unit in Kent for 24 days.  Hayes, recently released from jail, was able 

to visit the baby, but lost his temper with the staff and was banned from further 

visits unless accompanied by a professional supervisor.  Hayes missed three out 

of six postrelease urinalysis tests despite being warned that unexcused tests 

would be considered positive.

       Trial resumed and concluded in February 2011.  The trial court terminated 

Wallace's parental rights to RP, RW, and CH on March 25, 2011.   At the same 

time, the court terminated Hayes' parental relationship to CH. Both Hayes and 

Wallace appeal.  

                              STANDARD OF REVIEW

       The paramount goal of child welfare legislation is to reunite the child with 

his or her legal parents, if reasonably possible.  In re Dependency of K.N.J., 171 

Wn.2d 568, 577, 257 P.3d 522 (2011).  Procedures used to terminate the 

relationship between parent and child must meet the requisites of the due 

process clause of the Fourteenth Amendment to the United States Constitution.  

K.N.J., 171 Wn.2d at 574.

       To terminate the parent-child relationship, the State must satisfy two 

prongs.  K.N.J., 171 Wn.2d at 576.  The first prong focuses on the adequacy of 

the parents and requires proof of the six elements set out in RCW 13.34.180.  

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K.N.J., 171 Wn.2d at 576.  These elements must be proved by clear, cogent, 

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

convincing evidence exists when the ultimate fact in issue is shown by the 

evidence to be highly probable.  In re Dependency of K.R., 128 Wn.2d 129, 141, 

904 P.2d 1132 (1995). The six statutory elements are (1) that the child has been 

found to be a dependent child; (2) that the court has entered a dispositional 

order pursuant to RCW 13.34.130; (3) 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; (4) that the 

services rendered 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; (5) 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 (6) that continuation of the parent 

and child relationship clearly diminishes the child's prospects for early 

integration into a stable and permanent home.  RCW 13.34.180(1); K.N.J., 171 

Wn.2d at 577.  If the State satisfies the first prong, the court proceeds to the 

second prong, determining if termination is in the best interest of the child.  RCW 

13.34.190(1)(b).  K.N.J., 171 Wn.2d at 577. The second step need only be 

proved by a preponderance of the evidence.  In re Welfare of A.B., 168 Wn.2d 

908, 911, 232 P.3d 1104 (2010).        

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       If substantial evidence supports the trial court's findings in light of the 

degree of proof required, an order terminating parental rights must be affirmed.  

In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001).  

Substantial evidence is evidence sufficient to persuade a fair-minded rational 

person of the truth of the declared premise.  In re Welfare of C.B., 134 Wn. App. 

942, 953, 143 P.3d 846 (2006).  In this review, we do not make credibility 

determinations and we do not weigh the evidence.  C.B., 134 Wn. App. at 953.  

Unchallenged findings of fact are verities on appeal.  In re Welfare of C.B., 134 

Wn. App. 336, 349, 139 P.3d 1119 (2006).  Whether a termination order 

satisfies statutory requirements is a question of law.   K.N.J., 171 Wn.2d at 574.  

We review questions of law de novo.  K.N.J., 171 Wn.2d at 574.

       Both Wallace and Hayes argue the State failed to provide all necessary 

services in accordance with the fourth statutory element.  Additionally, Hayes 

contends that as to him, the State failed to prove the last two statutory elements 

and that the trial court erred by concluding termination was in the best interests 

of CH.

                                      WALLACE

       The State has a duty to provide all court ordered and necessary services 

and to offer services that are tailored to each parent's needs.  In re Dependency 

of D.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004), review denied, 154 Wn.2d 

1030 (2005).  At trial, Wallace argued that a psychological evaluation was a 

necessary service that the State failed to offer in a timely manner as required by 

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the fourth statutory element.

       In relation to RP, RW, and CH, Wallace was not ordered to participate in 

a psychological evaluation until January 2011, which was during the termination 

proceedings.  However, Wallace was earlier ordered in the King County 

dependency of ZH to participate in a psychological evaluation in July 2010.  The 

trial court found that a psychological evaluation was not a necessary service in 

the present case in light of Wallace's "fairly complete failure to access services":

       The mother has not accessed the services that were ordered 
       throughout the dependency.  The mother has had multiple failed 
       treatment attempts and has been incarcerated more than once 
       during this dependency.
       . . . .
       Given the mother's fairly complete failure to access services while 
       this case was pending, along with the seriousness and 
       pervasiveness of her parental deficiencies, the court finds that the 
       psychological evaluation is not a necessary service that is 
       reasonably capable of correcting the mother's parental deficiencies 
       within the foreseeable future.

Wallace challenges these findings.

       Wallace maintains a psychological evaluation was necessary as a matter 

of law because if offered earlier, it could have led to uncovering problems that 

might have prevented her from completing other services that were offered.  She 

contends that a psychological evaluation is a service uniquely capable of 

identifying impediments that prevent a parent from accessing other services.

       To support her argument, Wallace relies principally on In re S.J., 162 Wn. 

App. 873, 256 P.3d 470 (2011).  In that case, SJ was removed from his mother's 

care due in part to his mother's drug use.  Under the agreed dependency order, 

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the mother was to complete a substance abuse evaluation and treatment, submit 

to random urinalysis testing, complete a psychological evaluation and participate 

in mental health services.  The Department did not refer the mother to a 

psychological evaluation until about six months later because the order stated 

the evaluation was not to be conducted until the mother was sober.   When the 

mother completed the evaluation, she was diagnosed with bipolar disorder and 

borderline intellectual functioning.  After this diagnosis, the mother actively 

participated in counseling sessions.  Despite her earlier failures, these sessions 

led to improvement and successful inpatient treatment.  This court determined 

that the State failed to provide timely mental health services.  The termination 

order was reversed.  In re S.J., 162 Wn. App. at 882-84. 

       S.J. does not hold that a psychological evaluation is required as a matter 

of law in all cases to satisfy the fourth element.  S.J. is materially distinct from 

this case.  The mother in S.J., unlike Wallace, was fully engaged in her services.  

Wallace, in contrast, declined services on numerous occasions.  When a parent 

is unwilling or unable to make use of the services provided, the Department is 

not required to offer still other services that might have been helpful.  In re 

Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001).  The record 

indicates that Wallace's primary deficiency was substance abuse.  Wallace was 

offered random urinalysis testing, substance abuse treatment, and mental health 

counseling. She did not make use of these services with any consistency, and 

she did not progress to any significant degree in treatment.  These facts support 

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the determination that no other services available to Wallace were capable of 

correcting her parental deficiencies within the foreseeable future. 

       Also unlike the mother in S.J., Wallace did have the opportunity to receive

mental health services without the condition that she first deal with drug abuse.  

Barbara Hinchcliffe, a mental health counselor for the perinatal services 

program, testified Wallace had a referral for a psychiatric assessment during her 

six month stay at the program.  She was found to be depressed and was 

prescribed an anti-depressant.  

       Wallace challenges the finding of her "fairly complete failure" to access 

the services while the case was pending.  The record defeats the challenge, as it 

shows that she was unwilling to make use of many of the services provided to 

her, including those that might have remedied her substance abuse issue.  

Community corrections officer Michelle Brown testified that Wallace came to her 

office and said she did not think she needed treatment.  Wallace does not deny 

that her participation in the provided services was inconsistent. Wallace's 

failure to engage in the services provided supports the conclusion that a 

psychological evaluation was not a necessary service.  

       In summary, Wallace fails to provide a basis for overturning the trial 

court's determination that all necessary services were provided.

                                        HAYES

       Hayes contends the State did not establish the last three statutory 

elements of RCW 13.34.180(1).  He also argues termination of his parental 

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rights is not in the best interests of CH.

       The trial court identified Hayes' parental deficiencies as "domestic 

violence as a perpetrator; substance abuse; ongoing criminal behavior which 

affects his ability to parent, and lack of safe, stable and suitable housing."  Like 

Wallace, Hayes contends the Department failed to provide reasonably available 

services capable of addressing these alleged deficiencies.  Specifically, he 

contends the Department should have timely offered him a psychological 

evaluation and domestic violence treatment.

       The trial court entered findings stating that Hayes did not access the 

services ordered, that he failed to engage in any services after release from 

incarceration in January 2011, that a psychological evaluation was not a 

necessary service, and that Hayes was at best only marginally engaged in 

services.  Hayes challenges these and other findings.  The State responds there 

was substantial evidence showing Hayes was largely unwilling or unable to 

make use of the services provided, and therefore, the Department was excused 

from offering other services.

       The record shows that Hayes did access some services.  For example, a 

permanency planning hearing order, filed February 11, 2010, describes Hayes' 

compliance and progress as "partial."  The order states that he participated in a 

drug and alcohol assessment, completed a dependency process workshop on 

December 18, 2009, and participated in random urinalyses.  

       Nevertheless, the trial court did not err in finding that Hayes' failure to 

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access services was "fairly complete."  For example, Hayes went to a drug and 

alcohol evaluation on January 7, 2010, at Catholic Community Services.   The 

social worker doing the evaluation was unable to determine whether Hayes had 

sufficient symptoms to indicate abuse or addiction.  She wrote a letter to Hayes 

and the Department challenging his report of his drug use, noting that he did not 

disclose he was subject to four charges involving controlled substances between 

1992 and 1999.  The letter advised Hayes that it would be beneficial for him to 

return, but he did not, and there is no evidence that Hayes ever had another 

evaluation.

       Hayes also missed many urinalysis tests.  His record of complying with 

random urinalysis tests throughout 2009 was sporadic.  After being released 

from jail in January 2011, he missed three out of six.

       Hayes also failed to complete a mental health evaluation.  He testified 

that he had problems securing a medical coupon to pay for an evaluation, but 

the trial court was not obliged to accept this excuse as it was Hayes'

responsibility to contact the Department about payment issues.  His failure to 

follow through, on this record, is substantial evidence of a failure to access 

services. Moreover, Hayes testified he did not think he needed mental health 

treatment.  

       In general, Hayes resisted the need for services and stated more than 

once that he did not think he needed services.  At trial, he first denied he had 

any problems.  But he later acknowledged that drugs caused him problems.  

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Despite admitting that he tested positive for cocaine in a urinalysis test in 2009

(and that he missed many urinalyses), Hayes maintained his only problem with 

drugs was that he sold them, not that he used them.  

       On the domestic violence issue, Ramirez testified at trial that she and the 

Department were unaware that Hayes had a history of domestic violence until he 

was arrested at his wife's residence in May 2010.  Until then, Ramirez knew of 

his criminal history up to January 2009, the month when the dependency 

petitions were filed against Wallace, but did not know that Hayes assaulted his 

wife in March 2009, setting in motion a domestic violence case that resulted in 

Hayes pleading guilty in June 2009.  After learning that Hayes had a history of 

domestic violence, Ramirez considered adding a service to address the issue, 

but testified that she decided not to because Hayes was ordered to get domestic 

violence treatment as part of his sentence for assaulting his wife.  Hayes paid 

$100 for a domestic violence assessment on May 12, 2010, but he was unable 

to follow through with treatment because he was arrested the following day and 

held in jail where no services were available.  Thus, the trial court properly 

attributed his inability to obtain services for domestic violence to his own 

misconduct rather than finding the department failed to offer the service.  

       Even if the record had compelled a finding that the Department did not 

timely offer services aimed at addressing the issue of domestic violence, mental 

health, and drug abuse, termination is appropriate if the service would not have 

remedied the parent's deficiencies in the foreseeable future.  See In re 

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66943-5-I/16

Dependency of T.R., 108 Wn. App. at 164.  The trial court determined that the 

foreseeable future for CH was six months or less.  The evidence shows that 

when Hayes was offered services, he made little progress in correcting his 

parental deficiencies.  For example, he missed three urinalysis tests while the 

termination trial was pending.  There was also evidence that domestic violence 

treatment for Hayes would take one year.  

       Hayes argues there was insufficient evidence to conclude that the 

foreseeable future for CH was six months or less.  The foreseeable future is 

determined based upon the age of the child at the time of the proceedings.  In re 

Dependency of T.R., 108 Wn. App. at 164.  Here, CH was two years old at the 

time of trial.  He has been in out-of-home care since he was six months old, 

when his mother was released from the residential drug treatment program

where she was staying at the time of his birth.  At the time of termination, CH

had been in foster care for most of his life.  Given these facts, the trial court 

reasonably determined that the foreseeable future was six months or less for 

CH.  See In re Dependency of P.A.D., 58 Wn. App. 18, 27, 792 P.2d 159 (six

months not in the "near future" for a 15-month-old child), review denied, 115 

Wn.2d 1019 (1990).

       We conclude the evidence satisfies the fourth statutory element.  More 

services would not have corrected Hayes' parental deficiencies in the 

foreseeable future.  The fifth element is also supported by the record.  There 

was little likelihood that the conditions of Hayes' life would change such that he 

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could assume the responsibility of providing a home for CH in the near future.

       Hayes also argues that the State failed to prove the sixth element -- that 

continuation of the parent-child relationship would clearly diminish the child's 

prospects for early integration into a stable and permanent home.  

       CH was in a stable placement with a relative who was agreeable to 

providing a long-term placement.  Hayes contends that because terminating his 

rights would not result in change to CH's living situation, the court should have 

given him more time to prove his readiness to be a parent.  

       The main focus of the sixth statutory element is the parent-child 

relationship and whether it impedes the child's prospects for integration, not 

what constitutes a stable and permanent home.  In re Dependency of K.S.C., 

137 Wn.2d 918, 927, 976 P.2d 113 (1999).  This factor is mainly concerned with 

the continued effect of the legal relationship between parent and child, as an 

obstacle to adoption; it is especially a concern where children have potential 

adoption resources.  In re Dependency of A.C., 123 Wn. App. 244, 250, 98 P.3d 

89 (2004).  Foster care is not a permanent home.  Here, CH was in a placement 

with relatives who were willing to adopt him.  He had been there for over a year.  

The trial court did not err in finding that the parent-child relationship between CH 

and Hayes would clearly diminish CH's prospects for early integration into a 

stable and permanent home.  

       The final issue is the court's determination that termination was in the 

best interest of CH.  This depends on the facts and circumstances of each case.  

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In re Dependency of A.M., 106 Wn. App. 123, 131, 22 P.3d 828, review denied, 

144 Wn.2d 1015 (2001); In re Dependency of A.V.D., 62 Wn. App. 562, 572, 815 

P.2d 277 (1991).

       There was evidence that Hayes was an engaged parent and his visits with 

CH were consistently loving and appropriate.  By all accounts, Hayes cares for 

CH, wants to be a good parent, and has generally been capable of managing 

very young children.  The trial court acknowledged as much while making its oral 

ruling.  However, this does not mean the court erred in deciding that termination 

was in the best interests of CH.  Love and the ability to manage a visit do not 

overcome a history of drug involvement, resistance to services, and domestic 

violence, all of which contributed to the fact that Hayes had no contact with CH 

at all for nearly eight months.  At the time of termination, these problems were 

largely unaddressed.  CH, according to the guardian ad litem, was happy and 

bonded with his foster parents.  Termination means that CH will have a stable 

home with consistent parenting.  The trial court's ruling that termination was in 

the best interests of CH will not be disturbed.

       The orders of termination are affirmed in both cases.  

WE CONCUR:

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