Welfare Of A.b.; E.i. And N.b., Appellants V. Dshs, Respondent (Majority)

Annotate this Case

Download PDF

r . LED ? C0'ti" Or- APPEALS P,T D1V1SIoi,,,11 1 2014 APR - I ST , 1- 0 ANI Slil-NG, Y IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION 11 No. 44868- 8- 11 In re the Welfare of M STATE OF WASHINGTON, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Respondent, V. UNPUBLISHED OPINION - E.I., JOHANSON, J. E. I. is the mother of A.B. The juvenile court terminated E.I.' s parental rights to A.B. based on a finding that E.I. had cognitive impairments that would never allow her to parent A. B. on her own. We agree with E.I. that cognitive impairments alone are not parenting deficiencies, and that the Department of Social and Health Services ( DSHS) failed to meet its burden to prove that E.I. is currently unfit to parent A.B. We reverse the juvenile court' s order terminating E. I.' s parental rights to A.B. and remand for further proceedings. 9: 2 0 N FACTS E.I. J. G., and with a juvenile N.B. are the parents different father court of and who found that A.B. was a A.B., born February 2011. 1 E.I. also has an older child, is the not dependent subject of child under this In October, the dependency. RCW 13. 34. 030( 6)( c). The juvenile court found that N.B.' s criminal history and violent behavior posed a serious risk of harm to A.B. The juvenile court found that E. I. was unable to care for A.B. because she failed to recognize the risk that N.B. dispositional DV) to the posed order, E. I. support services child. A dispositional was ordered through the to participate Young order was entered in the following in November. services: Under the domestic violence Women' s Christian Association ( YWCA), a drug and alcohol assessment, individual counseling, a parenting class, and a parenting assessment. The first dependency review order was entered on February 6, 2012. The dispositional plan remained the same with the exception of the parenting assessment, which the juvenile court changed to a neuropsychological evaluation. According to the review hearing order, the provider for the neuropsychological evaluation was not available until March, and the juvenile court ordered DSHS -to-attempt to find - providerwith earlier-appointments:- The-review hearing- order- -- - -- - - -- - a also changed February A.B.' s permanency 10, DSHS filed plan a petition from reunification for termination of E. I.' to adoption. Four days later, on s parental rights. The petition for termination did not identify any specific parenting deficiencies. 1 N.B.' s rights were terminated at the same time as E.I.' s. A commissioner of this court affirmed the order terminating N.B.' s parental rights, and a panel of this court denied his motion to modify the ruling. N.B., therefore, is not a subject of this appeal. A commissioner of this court also considered E.I.' s appeal on an accelerated basis under RAP 18. 13A, then referred the appeal for consideration by a panel ofjudges. 2 No. 44868 -8 -II While dependency the review hearing support services and a of for termination petition E. I. class. and January 11, July parenting separating from N.B. order was entered on on N.B. 7, 2013. was 2012. the juvenile pending, court held another The only services ordered for E.I. were DV By this point in the dependency, E.I. was in the process permanently in August, 2012. separated Another review At this time, the juvenile court ordered E.I. to engage in individual counseling and medication management, and to continue working with a parenting coach. As of the January 7 hearing, the permanency plan listed for A.B. was adoption; reunification was no longer listed as a secondary permanency plan. The termination fact finding three presented held was on April 1 and 2, 2013. DSHS presented Dr. Lawrance Majovski, the provider who performed the neuropsychological witnesses: Linda West, E. I.' evaluation; hearing s parenting coach; and Lisa Sinnett, E. I.' testimony from Debby Brockman, E. I.' s DV counselor; s social worker. E. I. and Cory Wetzel, E.I.' s employer. E.I. also testified at the termination fact finding hearing. Dr. Majovski testified that he performed a neuropsychological evaluation to evaluate behavior E.I s - -brain -- assessment. cognitive and - ernotional-- functioning -- Majovski impairment) strengths were an diagnosed and ability to E.I. with a cognitive impaired intellectual nurture her also performed- - -parentinga - status.- - -He - abilities. children and having disorder not otherwise specified Majovski noted that E.I.' s parenting a calm demeanor. He also observed that there were no adverse circumstances or safety concerns during the one hour he observed E.I. with her children. When asked what E.I.' s weaknesses were, Majovski responded, Limited in her insight, understanding, and decision- making that applies to judgment and reasoning, how you go about making decisions if you had to have one -on -one with one child, as parent to child, much let alone one to two to three or four children. 3 No. 44868 -8 -II Limited intellectual ability, which affects her cognitive challenges and the impairment we' ve already discussed, or I have testified, that limit her ability ¢to have insight; reason, to. achieve productive solutions to complex challenges; multitasking, decisions you have to make; also affected by comprehension level in reading; also her memory and ability to assimilate a lot of information and hold it, to use that for manipulating data and information to reach productive solutions. 1 Report E. I. of would Majovski Proceedings ( RP) be unable did not to at 27. Majovski opined that on a " more probable than not" basis, parent without a coparent, companion, or supportive recommend any services for E. I. because he help. 1 RP at 28. stated that her cognitive impairments were unlikely to change. West was September 2012 visitation notes E. I.' s January until and a assigned copy of 2013. West worked with E. I. from the end of coach. parenting Prior to working Dr. Majovski' s report. with E. I., West received copies of West worked with E. I. for 10 two -hour sessions during the period of time E.I. was referred to services. West' s final report was issued on January 21, 2013, 19 days after the January 7 review order in which the juvenile court ordered E.I. to continue working with the parenting coach and approximately two months before the termination trial. West identified four 2) following a child' s specific goals lead in play, ( 3) for E. I.: ( 1) understanding normal child development, serving healthy food, and ( 4) increasing safety. As to her initial concerns about A.B.' s safety, West testified, Well, I think that one of the concerns was that it was her safety and then keeping him safe through the domestic violence pieces that were happening and that [ E.I.] could make good choices for herself and [ A.B.]. I didn' t feel that there was any concern for his safety during the visits. She was always watching him, and he never did anything dangerous. So it was more around if she had him alone at and things got out of hand. 1 RP at 59. As to her conclusions regarding E.I.' s progress in learning child development, West testified, 21 No. 44868 -8 -II I think that it would have taken a few -- several more months for her to really get that kids do develop certain ways, you know, emotionally, physically, with language. So I would have had to -- from where I stopped, I' m not really sure she understood that. 1 RP at 64. One of West' s greatest concerns regarding E.I. was that she had to remind E.I. to slow down and questions. let A.B. lead the play. However, in her final She was also concerned that E.I. asked A.B. too many report, West wrote, " On our last visit she did a good job of following [ A.B.' s] lead and asking appropriate questions that helped him learn and engage with Ex. 9. her." West also expressed concern about E.I.' s ability to engage A.B. in calming activities such as rocking him or reading. West also believed that E. I. engaged with A.B. more as a playmate than a parent, particularly because West did not observe E.I. say things such as I' m mama and you' re my son" to A. B. during visits. 1 RP at 63. West testified that by the end of the period of her referral, E.I. was bringing A.B. healthy food at E. I.] visits and that healthy food was no longer a concern. However, in her report she noted, was unable to vary much from [ the better food choices such as yogurt, rice, chips, gummy treats, and drinks] which maybe [ sic] an indication of her lack of creative thinking and problem solving skills noted in her neuropsychological evaluation." Ex. 9. Finally, West testified to several concerns she believed existed as to E.I.' s ability to meet A.B.' s needs and provide for his safety. First, she stated that she was concerned because E. I. was originally living alone in an apartment and then had to move back in with her parents. Second, she did not believe that E.I. had the capacity to organize and maintain a routine for A.B. Third, when asked about any concerns regarding E. I.' s ability to protect herself and A.B., West stated she believed that E.I. had a lot of progress to make in keeping herself and A.B. safe 5 No. 44868 -8 -II because E.I. was very " wishy- washy" when making a decision about how to deal with the car she shared with N.B. after they 1 RP separated. 66. at Fourth, West believed that E. I. could not manage her time and schedule because she was late to visits on a couple of occasions due to a new work concerned In her final report, West referenced two additional incidents which schedule. her: ( 1) E. I. once took her older son, J. G., to work with her for a 10 -hour shift, and 2) she asked permission to bring A.B. to J. G.' s birthday party which was scheduled for 7 PM. The only safety concern West identified during visits was one occasion when E.I. did not stop A.B. from running with a sucker in his mouth. West concluded that E. I. would not be able to care for A.B. as a single parent because she was emotionally immature and lacked decision making and problem solving skills. Although West testified that E.I. would probably be able to parent with her family' s support, she concluded that E. I.' s prognosis for improving her parenting skills was poor. Sinnett provided was to E. I. E.I.' s assigned caseworker at. DSHS. Sinnett testified regarding the services She stated that E.I. engaged in the drug and alcohol assessment, but there were testifiedthat she referred E: - issues:- -She also ordrug - alcohol - no noted - to individual counseling at the " Center for Child and Family Therapy" but the service ended after three sessions because it was determined that E.I. did not have any clinically significant issues. The first parenting class Sinnett referred and completed E.I. began to Parenting E.I. to was " Parenting that parenting attend and Place." E. I. then also class. Children Who Witness Domestic Violence." E. I. attended Then Sinnett referred E. I. to " Nurturing Parenting" which dropped. Sinnett later completed Love Nurturing Parenting again but E.I. did not attend. el and referred Logic. E.I. to " Love and Logic" at the Finally, Sinnett referred E.I. to No. 44868 -8 -II Sinnett stated that E.I. was originally ordered to do a parenting assessment, but that service later was write down to because ( 1) E. I. recommendation concrete and changed specific when what a neuropsychological exhibited a "[ discussing fJlat services with they discussed verbally so E.I. evaluation. affect," ( E. I., to changed the 2) Sinnett would have to be very and ( could refer Sinnett 3) Sinnett would often have to it later. 2 RP at 10. Sinnett was also concerned because E.I. would be positively engaged and then have some trouble following through " at other points in time." 2 RP at When Sinnett received the neuropsychological 14. evaluation, she did not refer E.I. to any additional services because there were no additional services recommended support services. E. I. in the report. was referred The other service E. I. was ordered to engage in was DV to the YWCA " ALIVE" DV program and began working with Brockman, an individual DV advocate. On cross -examination, Sinnett stated that she had no idea what other services might help E. I. E.I. asked Sinnett about additional hands -on parenting programs and Sinnett stated that parent -child interaction therapy and " Safe Care" were at least two additional hands -on parenting services: - Sinnett did- not-refer-E.I. to- either service because -- he -had referred -her to- hands = - - --s on parenting coaching with West. However she did acknowledge that " Safe Care" could have been appropriate. Sinnett also supervised some of the visits between E. I. and A. B. During her testimony the only negative incident Sinnett testified about was that on one occasion A.B. was coloring by scribbling truck with crayons and markers. should be red. E.I. tried to get him to color a picture and told him the fire Sinnett testified that this incident demonstrated that E.I. was demanding of A.B. beyond his developmental capability. 7 No. 44868 -8 -II Sinnett also testified that A.B. was doing very well and meeting all of his developmental milestones. She opined that there was little likelihood E.I. would be able to remedy her parental deficiencies. And she testified that there were no adoption resources identified for A.B. and that the only identified potential placement being considered by DSHS was placement with one of A.B.' s paternal relatives. Sinnett opined that termination was in A.B.' s best interests. Brockman testified regarding her work with E.I. during the Brockman dependency. began working one -on -one with E.I. after she received the referral from DSHS in December 2011, but E.I. had already been attending support groups through the program. Initially, Brockman worked with E.I. on recognizing patterns of abusive relationships, identifying healthy relationships, and safety planning. During her work with E.I., Brockman never observed E.I. to be cognitively impaired nor did she observe any difficulty with E.I.' s comprehension of the topics they were discussing. Over time, Brockman observed E. I. make significant progress in understanding the harm of her relationship with N.B. Brockman also commended E.I.' s decision to separate from N.B. and make the conscious decision to maintain that separation. Brockman also testified that -E.I-.had decided- not-to enter -into any relationships and to-continue-working-- with Brockman on identifying warning signs and unhealthy behavior so she would be safe if she entered into a new relationship in the future. Brockman explained the circumstances surrounding the car that concerned West. Brockman stated that the car was registered in E. I.' s name but it was used by N.B. E. I. retrieved the car from impound when N.B. was arrested and used the car while N.B. was incarcerated. Although the car was helpful to her in managing her schedule, E.I. felt uncomfortable keeping the car, so she returned purchase a vehicle of her the car to N.B.' s own. mother. After she returned the car, E.I. was able to I ¢ Brockman also testified regarding West' s concern that E.I. brought J. G. to work with her during a 10 -hour shift at a galley Navy on a base. Contrary to West' s understanding, E.I. had J. G. with her during a day off when E.I.' s boss called her and asked if she could cover for some had people who that there not shown was a safe place up E.I. made sure that it was acceptable to bring J. G. and at work. for him to stay while she worked. There was an office with a Naval officer present where J. G. could watch television or videos, so E.I. brought him to work with her. E.I.' s boss was able to relieve her after approximately two hours. Brockman noted that E. I. also had unsupervised visitation with J. G. Although J. G.' s father was the primary residential parent, E.I. was able to take J. G. places unsupervised and sometimes J. G. spent nights at E. I.' s home. In when on addition, Brockman testified regarding E. I.' E. I. originally their combined apartment and separated incomes. bills on housing She explained that situation. she was living in an apartment that was paid for based from N.B., When s she was living her individual income. alone, she could no longer afford the During the same period, E.I. was briefly furloughed-from tier job and without steady income shewas unable to obtain housingassistance. Due to her financial situation, E. I. to chose move in with her Brockman testified that parents. she had visited the apartment at the time E.I. was living alone and the apartment was well taken care of and E. I. did not appear to have any problem living on her It was only E.I.' s own. financial situation at the time, primarily a result of her decision to end her abusive relationship with N.B., which caused her to leave the apartment and move in with her parents. Brockman also observed that E.I. was very self sufficient in pursuing resources that may offer her housing assistance and was resourceful enough to seek out that assistance on her own. No. 44868 -8 -II E. I.' supervisor, s service worker in the Wetzel, testified regarding E.I.' galley, but Navy the galley when Wetzel was to lack they immediately hired down shut E. I. back when one of the the galley galleys and reopened. to a lead position. As a lead, E. I. Wetzel explained that at one point, due there. not E. I. began as a food employment. she was promoted opened or closed of work, s E.I. was laid off. However, Wetzel Wetzel also testified that E.I. was such a valuable employee that Wetzel was able to maintain her employment even though they had to later lay off other employees again. Wetzel and managed characterized E. I.' s her changing schedule. work as outstanding. She noted that E.I. was very punctual Wetzel also testified that E. I. was promoted to lead because she had been able to learn every area of the galley including the cash register and helping up, the with manage all cash management. her tasks efficiently, E. I. was able to multitask, address problems as they came and handle the stress of high- capacity, busy days. E. I. was also able to manage inspections in the galley and perform additional tasks related to inventory and ordering. Wetzel also clarified thecrcmtancesregarding the day th- G.- cane to work1wit E.L -- at-J. Wetzel had asked E.I. to come in, and E. I. stated she had J. G. with her. Wetzel told her that there was an office with a television and videos where J. G. would be supervised by the Navy watchman. Wetzel also told her that it would be for approximately two hours. Because there was a safe place for J. G. and she would only be working for a couple of hours, E.I. came to work to fill in for Wetzel until Wetzel could relieve her. In addition to observing E.I.' s work first hand, Wetzel also supervised several employees with disabilities, including people with learning 10 disabilities. Based on her experience working No. 44868 -8 - II with people with learning disabilities, Wetzel did not believe that E.I. had a learning disability that impeded her ability to function independently. E. I. introduced many notes, the visits between E. I. They and wagons. reports created and A.B. by the visit supervisors. were positive. colored and played with Play -Doh. According to the visitation E.I. played with A.B. on push cars, bikes, E.I. talked to A.B., asked him questions, and helped him identify lots of toys with words. A.B. clearly liked cars, so E.I. often picked him up and held him so he could look out the window and watch the cars drive by. E.I. responded to A.B.' s cues such as fussing or acting tired, and she was able to redirect any inappropriate behavior. The visitation reports demonstrate that E.I. regularly responded to safety concerns appropriately. Neither of the incidents that West or Sinnett identified as problematic was in the visitation reports submitted into evidence. E.I. testified that it was a hard decision for her to leave N.B. because they were a family but it was a positive decision. E.I. also explained that she and Brockman had developed a safety plan so E.I. knew exactly what to do if N.B. became a danger to her or her children. E.I. testified that she -currently--lived with her parents for financial reasons but when- she- was able to,--she - - -- - would seek her own apartment. She also stated that her parents were a good resource and support for her, as well as her best friend who also had children. When asked what she would do if the termination petition was dismissed and the dependency continued, E. I. responded, My plan is for my child to be home and returned to me and at least give me the chance to work in - ome dependency; because obviously since I' ve been working h with them for these past two years or whatnot, obviously they must not know who I am and what I' m capable of, what I' m capable of doing, or what I can do for myself and my child. 2 RP at 94. E.I. also agreed she would continue participating in services if necessary. 11 r Mrs] MAMOMMON A.B.' s court- appointed special advocate ( CASA) stated that she believed E.I.' s parenting deficiencies were difficulty making decisions and perceiving the needs of a child at different ages. The CASA stated that she believed termination was in A.B.' s best interests. She also noted that DSHS was investigating a placement with a paternal relative. At the conclusion of the fact -finding hearing, the juvenile court made an oral ruling terminating E. I.' s to A.B. parental rights as The juvenile court stated, "[ I] t literally makes me sick to have to terminate her parental rights. because she' s a kind, good, sweet person who has neurological 175 -76. deficits, the type The juvenile court of thing that can' t be really cured specifically found that E.I.' s by a course of witnesses therapy." 2 RP at testified " truthfully and, accurately," but that E. I.' s cognitive impairments resulted in a lack of judgment and insight as it related to the subtle needs of children. 2 RP at 176. The juvenile court also entered written findings of fact and conclusions of law. The juvenile court found E.I. to be currently unfit because her cognitive impairments prevented her from making intuitive judgments, grasping child development, perceiving subtle dangers to children; child. g understanding- he- imp act s-ofor-communicating g thing- on children or - her - - The juvenile court also found that there were no services that could be offered to E.I. because her cognitive impairments. could not be changed. The juvenile court concluded that DSHS proved the statutory requirements for termination by clear, cogent, and convincing evidence, and that termination was in the best interests of the an order terminating E.I.' s parental rights to A.B. E.I. appeals. 12 child. The juvenile court entered No. 44868 -8 -II ANALYSIS E.I. argues that the juvenile court erred by finding that DSHS proved all the statutorily required factors for termination by clear, cogent, and convincing evidence. Specifically, she argues that DSHS failed to prove ( 1) that all necessary services reasonably capable of correcting her parenting deficiencies was currently unfit to were parent expressly and understandably offered or provided, ( 2) that she A.B., ( 3) that there was little likelihood that conditions would be remedied such that A.B. could be returned to E. I. in the near future, and ( 4) that continuation of the parent and child relationship clearly diminished.A.B.' s prospects for early integration into a stable and permanent E.I. was currently home. Because we hold that DSHS failed to meet its burden to prove that unfit to parent A.B., we do not address the remaining issues E.I. raises on appeal. The juvenile court may terminate a parent' s rights as to his or her child if DSHS establishes by clear, cogent, and convincing evidence that the Welfare of A. B., 168 Wn.2d 908, 925, 232 P. 3d 1104 ( 2010). parent is currently unfit. The juvenile court must also find that DSHS-has- proven - ixfactors byclear, cogent an convincing s a) [ t] hat the child has been found to be a dependent child; b) That the court has entered a dispositional order pursuant to RCW 13. 34. 130; c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency; d) That the services ordered under RCW 13. 34. 136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; the e) That there is little likelihood that conditions will be remedied so that A parent' s failure to child can be returned to the parent in the near future. substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned 13 In re No. 44868 -8 -II to the parent in the near future. The presumption shall not arise unless [ DSHS] makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided[; and] f) That continuation of the parent and child relationship clearly diminishes the child' s prospects for early integration into a stable and permanent home. Former RCW 13. 34. 180( 1)( a) -(f) 2009); A.B., 168 Wn.2d ( at 911. Then, DSHS must prove by a preponderance of the evidence that termination of parental rights is in the child' s best interests. RCW 13. 34. 190( 1)( b). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown to be "` highly probable. "' In re Sego, 82 Wn.2d 736, 739, 513 P. 2d 831 ( 1973) ( Densmoor, 225 Or. 365, 372, 358 P. 2d 510 ( 1961)). findings of fact if they are supported by quoting Supove v. We will not disturb the juvenile court' s substantial evidence. Sego, 82 Wn.2d at 739. Substantial evidence is evidence sufficient to persuade a fair minded rational person of the truth of the declared premise. Bering v. dismissed, 479 U.S. 1050 ( 1987). "[ SHARE, 106 Wn.2d 212, 220, 721 P. 2d 918 ( 1986), cent. E] vidence that may be sufficiently ` substantial' to support an ultimate fact - r issue based upon-a `preponderance of-the evidence'--may not - e- sufficientto - - -- - i - b support an ultimate fact in issue, proof of which must be established by clear, cogent and convincing evidence." Sego, 82 Wn.2d at 739 ( footnote omitted). We do not make credibility determinations or weigh evidence. Sego, 82 Wn.2d at 739 -40. CURRENT UNFITNESS Identifying re Dependency parenting deficiencies is not the equivalent of proving of Schermer, 161 Wn.2d 927, 943, 169 P. 3d 452 ( 2007) ( KK, 119 Wn. 2d 600, 609, 836 P. 2d 200 ( 1992), cent. parental unfitness. In citing In re Welfare of denied, 507 U. S. 927 ( 1993)). A dependency determination requires a showing of parental deficiency by a mere preponderance of 14 No. 44868 -8 -II the evidence. Schermer, 161 Wn.2d 942. at Under RCW 13. 34. 030( 6), a child is a dependent child if the child a) [ h] as been abandoned; b) Is abused or neglected ...; c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child' s psychological or physical development. Dependencies are subject to a " relatively lenient preponderance standard" because dependencies serve " the important function of allowing state intervention in order to remedy family problems and provide needed services." Schermer, 161 Wn.2d at 942. A dependency finding under RCW 13. 34. 030( 6)( c) need not be based on proof of actual harm, but instead can rely on a danger of harm to the child. Schermer, 161 Wn.2d at 951. A juvenile court has broad discretion in determining when there exists a risk of harm. Schermer, 161 Wn.2d at 951. But "[ statutory App. a] dependency proceeding and a termination proceeding have different objectives, requirements, 905, 908, 627 P. 2d 551 ( 1981)). pport KK, 119 Wn.2d at 609 ( citing In re Hiebert, 28 Wn. and safeguards." While identifying parenting deficiencies is sufficient to de p endenc y - it-is- unconstitutional , su a finding of unfitness. KK, 119 Wn.2d at -o permanently terminate -a -parent' s rights without a t 609. Further, DSHS is held to the higher burden of proving current unfitness in a termination proceeding by clear, cogent, and convincing evidence, rather than the more lenient preponderance of the evidence standard applied in dependency proceedings. RCW 13. 34. 190( 1)( a)( i). Therefore, a finding of current unfitness requires more than the determination that DSHS has proved, by a preponderance of the evidence, that a parenting deficiency exists, as in a dependency proceeding. See RCW 13. 34. 030( 6); Schermer, 161 Wn.2d at 943. To meet its burden to prove current unfitness in a termination proceeding, DSHS is required to prove that the 15 No. 44868 -8 -II parent' s parenting deficiencies prevent the parent from providing the child with " basic nurture, health, or safety" by clear, cogent, and generally former RCW 13. 34. 180( 1)( e)( convincing evidence. ii) ( parent has a See RCW 13. 34. 020; see also condition that " render[ s] the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the 2 child "). Here, the juvenile court made the following factual finding regarding the parenting deficiencies that rendered E.I. currently unfit: E.I.] has neurological and cognitive deficits that do not allow her parent the to [ sic] child. judgments that Because have to parents of these deficits, make. she cannot make the intuitive She is not able to grasp child development, and while she is able to perceive obvious dangers to herself, she is unable to perceive the subtle dangers that impact children. She cannot understand the impact and effect things have on children, or communicate effectively with the child. Clerk' s Papers burden to at prove 57. The trial court relied on this finding to conclude that DSHS had met its that E. I. was currently unfit to parent A.B. The juvenile court' s findings of fact are not supported by evidence substantial enough to support the conclusion that the DSHS met its burden-to-prove current unfitness - y-clear;-cogent; and convincing b evidence - - -- - - - - Z We also note that the third party custody statutes place " a high threshold burden on a petitioner In re Custody of B.M.H., 179 Wn.2d 224, 235 -36, 315 P. 3d 470 To meet this heightened standard, a party seeking to interfere with a parent' s liberty interest in the custody of her children must show that the parent is either unfit or custody with the seeking nonparental custody." 2013). parent would result Wn.2d at is if he unfit in 235. For the 26. 44. 010); actual detriment to the purposes of nonparental or she cannot meet a child' s see also generally In re basic child' s growth and development. Supreme Court has B.M. H., 179 stated, " A parent custody, our needs." B.M.H., 179 Wn.2d at 236 ( citing RCW Aschauer, 93 Wn.2d 689, 694, 611 P. 2d 1245 ( 1980) ( "[ the mother] lacks the necessary capacity for giving parental care "). 16 No. 44868 -8 -II E.I.' s parenting deficiencies, as identified in the dependency order, were all related to the DV in her relationship with N.B. By the time of the termination hearing, E.I. had remedied the parenting deficiencies related to DV by removing herself from her relationship with N.B., the understanding need for maintaining the separation, deciding not to enter into new relationships, learning the characteristics and harms of DV relationships, and completing all her DV-related services. The juvenile court recognized that E.I. had the ability to understand how to cease being the victim of DV but somehow believed that she was unable to understand how DV her child. inability to affected E.I.' s The juvenile court reiterated this concern in its written finding regarding perceive subtle dangers and the impact of " things" on children. The evidence presented in this case is not sufficient to persuade a fair minded, rational person that E.I. is unable to perceive the dangers that DV poses to her child. There is also insufficient evidence to support the juvenile court' s finding that E.I. was unable to communicate effectively A.B. with West testified that sometimes she felt that E. I. asked A.B. too many questions during play, but there is also ample evidence that E.I. interacted with A.B. -- rian age -appropriate -level and-was able--o- teach him words through-identifying-toyso t and objects. There was no evidence that asking A.B. too many questions during play prevents E. I. from effectively communicating with him. Sufficient evidence does not support the juvenile court' s finding that E.I. is unable to effectively communicate with A.B. There were some minor safety concerns that were articulated by West and Sinnett such as the incident learned involving A.B. running with a sufficient amount about child the lollipop. West also testified that E.I. had not development. Therefore, there is sufficient evidence to 17 No. 44868 -8 -II support the finding that E.I. has parenting deficiencies related to a lack of understanding of childhood development and trouble identifying some subtle dangers to children. However, there is insufficient evidence to support the trial court' s finding that E.I. lacks intuitive judgment and decision making skills. Although West testified that she was concerned about E.I.' s decision making ability based on a misunderstanding regarding the shared car, Brockman explained that E.I. had concerns about keeping the car, made a clear decision about what to do with The juvenile the court car ( give it to N.B.' s mother), and then proceeded to buy a car on her own. explicitly found that Brockman testified truthfully. Therefore, we conclude that the trial court' s finding regarding day -to -day decision -making ability is not supported by sufficient evidence. West and Sinnett expressed concern about E.I.' s judgment and decision -making skills because they believed she was unable to live independently, and the juvenile court relied on these opinions in its findings of fact. West' s and Sinnett' s opinions were based solely on the fact that E. I. moved in with her parents. However, Brockman' s credible testimony established that E.L. was able-to- live on -her own-,-but because - she- - ade -the decision to- leave her -abusive -- - --- - m - relationship, she did not have the financial resources to continue living in the apartment that she had previously shared with N.B. Brockman also testified that E.I. was very proactive about trying to reestablish an independent living situation by seeking out housing resources. Accordingly, a fair minded person could not conclude that E.I. lacked judgment or decision- making skills based exclusively on E.I.' s living situation, and substantial evidence does not support the juvenile court' s findings that E. I. is incapable of adequate judgment or decision making. 18 No. 44868 -8 -II Substantial evidence the supports juvenile court' s finding that E. I.' s cognitive impairments resulted in a lack of understanding of child development stages and difficulty identifying a risk of certain subtle harm that dangers. warrants Therefore, DSHS identified parenting deficiencies that create intervention and participation in services. However, the findings of fact do not show that DSHS proved that E.I. was unfit by clear, cogent, and convincing evidence. DSHS was required to prove that it is " highly probable" that E.I.' s cognitive impairments rendered her incapable concerns regarding E. I.' s posed by N.B.' relationship s with of abusive N.B. meeting A.B.' care of A.B. behavior. s basic needs. Here, there were never any serious safety A.B. was removed from the home due to the safety risk E.I. removed this risk to A.B.' s safety by leaving her The evidence also showed that E.I. was able to provide healthy food for A.B., and E.I. was able to maintain a safe home both on her own and with her parents. Although E.I.' s cognitive impairments may pose a risk of harm to A.B due to an inability to identify .subtle dangers for the purpose of establishing a dependency based on these concerns, it is not highly probable that A.B. will be harmed by E,I.' s inability to recognize subtle safety risks or that E.I. would be- unable to provide for his- basic -needs. - Therefore DSHS -did not- meet its burden -to-- - - -- - prove that E. I.' s cognitive impairments render her unfit to parent for the purpose of permanently terminating her parental rights to A.B. Here, E.I.' s cognitive impairments impacted her ability to parent because they interfered with her ability to understand child development and identify subtle safety risks to her child. Cognitive impairments that result in a parent having difficulty learning specific: aspects of parenting but that do not present an immediate or severe risk to the child' s safety are not sufficient to render a parent currently unfit. Therefore, the juvenile court erred by concluding that DSHS met its burden to prove that E.I. was currently unfit by clear, cogent, and convincing 19 No. 44868 -8 -II Because DSHS failed to meet its burden to prove that E.I. is currently unfit, the evidence. juvenile court' s order terminating E.I.' s parental rights as to A.B. is reversed. Although we do not address E.I.' s remaining claims regarding whether DSHS met its burden to prove that all necessary services were offered or provided or there was little likelihood conditions could be remedied in the near future, we note that the juvenile court relied heavily on Majovski' juvenile s testimony court' s focus that E.I.' s was cognitive impairments misplaced. In In re be could not Dependency of T.L. G., corrected. However, the 126 Wn. App. 181, 203, 108 P. 3d 156 ( 2005), the court held that mental illness alone is not proof that a parent is unfit or incapable. " ability." The court must examine the relationship between the mental condition and parenting T.L. G., 126 Wn. App. at 203. The same is true of cognitive impairment. Because the existence of cognitive impairments is not proof that a parent is unfit unless the cognitive impairment directly impacts the ability to parent, the question is whether the resulting parenting deficiencies 1275 ( 2001). can be corrected. See In re Dependency of T.R., 108 Wn. App. 149, 165, 29 P. 3d In other words, the proper inquiry for the juvenile court is whether the parenting I deficiencies resulting from cognitive impairments- can be remedied, and whether services can be offered or provided that may remedy the parenting deficiencies. At times, such as with some mental illnesses, services may be directed toward remedying both the underlying cause of the parenting deficiencies in addition to the parenting deficiencies themselves. However, even when the underlying cause of the parenting deficiency cannot be remedied, the juvenile court must determine whether services were offered to remedy the resulting parenting deficiencies and whether there is a likelihood that the resulting parenting deficiencies can be remedied in the near future. Former RCW 13. 34. 180( 1)( d), ( 1)( e). FIX No. 44868 -8 -II The juvenile court' s order terminating E.I.' s parental rights as to A.B. is reversed because DSHS failed to meet its burden to prove that E.I. was currently unfit. We remand to the juvenile court for further proceedings consistent with this opinion. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. I )HANSON, J. LEE, J. 21

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.