IN RE DEPENDENCY OF G.M., 53041-1-I (Wash.App. 10-11-2004)

No. 53041-1-IThe Court of Appeals of Washington, Division One.
Filed: October 11, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 03-7-00174-9. Judgment or order under review. Date filed: 08/07/2003. Judge signing: Hon. Michael J Fox.

Counsel for Petitioner(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Counsel for Defendant(s), Julie C Kellogg-Mortensen, Attorney at Law, 25825 104th Ave SE # 227, Kent, WA 98031.

Counsel for Respondent(s), Joel Jacob Delman, Attorney at Law, Ofc of Atty Gen Dshs, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.

Counsel for Guardian(s) Ad Litem, Lori Larcom Irwin, King Co Superior Ct/Dependency Casa, 1401 E Jefferson St Ste 500, Seattle, WA 98122-5574.

PER CURIAM

In this proceeding to terminate Gregory Dorsey’s parental rights, the trial court made the required statutory findings. Although the court referred to the doctrine of res judicata, we are satisfied that the findings are based upon evidence adduced in this trial which supports the trial court’s findings. We find no error and affirm.

FACTS
G.M., born on July 30, 2002, is the natural son of Heather McDonald and Greg Dorsey.[1] G.M. was born with cocaine in his system and was placed in the Pediatric Intensive Care Center (PICC), a medical facility that provides 24-hour a day care for medically fragile babies. G.M. spent a month at PICC before being placed with a maternal relative. By July 2003, G.M. was still in the same placement and doing very well.

Dorsey was incarcerated when G.M. was born and remained incarcerated during the termination trial. He had never seen his son.[2] The trial court entered agreed dependency and dispositional orders on October 23, 2002. Dorsey was ordered to obtain a drug/alcohol evaluation and follow recommended treatment; submit to random urinalysis (UAs); obtain a psychological evaluation and follow through with any treatment recommended; obtain domestic violence treatment and complete parenting classes. Additionally, Dorsey was required to:

[E]stablish and maintain a safe, stable, living environment, suitable for care of the child. It shall be free of domestic violence, physical and psychological abuse of the children, drug and alcohol abuse, and criminal activity. . . .

Dorsey and McDonald were also the parents of O.D., born September 2, 2001. O.D. was found to be a dependent child on February 6, 2002, and had lived with a maternal aunt since May 2002. An older daughter, McDonald’s child, lived in the same foster home. The services ordered for Dorsey in O.D.’s dependency were the same as in G.M.’s dependency. Dorsey’s parental rights to O.D. were terminated on March 27, 2003.

The State filed a termination petition as to G.M. which was tried July 16 to 21, 2003. Since the February 2002 dependency order in O.D.’s case, Dorsey had been out of jail or prison for less than a month. Since G.M.’s dependency disposition, Dorsey had spent time in Shelton and Clallam Bay Correctional facilities and King County Jail. Social workers communicated with Dorsey, in person, by mail and telephone. Dorsey admitted he was well aware of the services he needed to obtain. During Dorsey’s brief period out of jail, social worker Heather Riley gave Dorsey a referral to TASC for drug/alcohol evaluation and UAs, and contact information for domestic violence treatment. She also discussed the referral process for obtaining a psychological evaluation.

Dorsey completed an intake interview at TASC but did no UAs or other treatment before he returned to jail. Dorsey was unable to complete any services during incarceration because none of the relevant services were available when he was in each institution. Social workers contacted each institution to discuss available services needed but found no services available.

This was not Dorsey’s first incarceration. Dorsey admitted the allegation in the termination petition that he had been arrested 37 times as of November 2, 2001. He also admitted to the following convictions: second degree possession of stolen property in Snohomish County in 1998 and in King County in 1997; VUCSA in 1997; Attempt to Elude in 1996; Attempt to Elude and Attempted VUCSA in February 2002; VUCSA in March 2002 and second degree robbery in November 2002. On September 22, 2001, Dorsey was driving his car and was involved in a high speed chase which was terminated when the police placed spikes in the road. McDonald was in the car, holding 22-day old O.D. in her lap. McDonald’s older daughter was in the back seat. Carrie Magel, the Court Appointed Special Advocate (CASA) for O.D. and G.M. talked extensively with Dorsey. Although he denied personally using drugs, Dorsey admitted to Magel that he had sold drugs, off and on, from 1991 to 2001. He began by selling to his father but got used to the easy money. The trial court heard testimony from Dorsey, Dorsey’s father, CPS worker Kenneth Dean, social workers Riley and Tracey Goncalves, CASA Magel, a classification counselor from Clallam Bay Correctional facility, and a PICC social worker. At the conclusion of the trial, the court terminated Dorsey’s parental rights. Written findings of fact and conclusions of law were entered on August 7, 2003. Dorsey appeals.

ANALYSIS
In order to terminate the parent-child relationship the State must establish the six statutory elements set forth in RCW 13.34.180(1) by clear, cogent and convincing evidence. The court must also find that termination is in the best interests of the child.[3] Where the needs of the child and the rights of a parent conflict, the needs of the child must prevail.[4] This court will not disturb the trial court’s findings if substantial evidence supports its findings that the State has met the requisite burden of proof.[5] Because the fact finder has the advantage of observing the witnesses, deference to the trial court is particularly important in appellate review of termination decisions.[6] Offering or Providing All Necessary Services

Dorsey contends that the State failed to establish the element that it had offered or provided all necessary services as required in RCW 13.34.180(1)(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.[7]

By statute, the State must `provide all reasonable services that are available within the agency, or within the community, or those services which the department has existing contracts to purchase’ in order to enable a parent `to resume custody’ and report to the court its inability to provide such services.[8] At a minimum, the State must provide the parent with a referral list of agencies or organizations that provide the services.[9]

Contrary to Dorsey’s argument, both social workers attempted to provide services for him during the dependencies of G.M. and O.D. The State must offer or provide services that are `reasonably available’ and capable of correcting parental deficiencies within the foreseeable future. The State sought services for Dorsey despite his imprisonment. The two social workers contacted Dorsey, the King County Jail, and the correctional facilities in Shelton and Clallam Bay, but there were no services that would begin to address Dorsey’s parental deficiencies.

Additionally, the State moved promptly to facilitate Dorsey’s ability to obtain services when he was released from incarceration in February 2002. But the State’s efforts were to no avail when Dorsey was charged with and pleaded guilty to yet another offense and returned to the prison system, where no services were reasonably available. The trial court did not err in finding that Dorsey made himself unavailable for services by the choices he made that resulted in his incarceration.

Dorsey notes that many of the services were offered in O.D.’s dependency, before G.M. was born. But the trial court can reasonably consider any services offered to Dorsey, including those offered prior to G.M.’s dependency.[10] Such evidence is particularly relevant here because Dorsey’s identified parental deficiencies were the same in both dependencies, and the attempt to provide Dorsey services involved the same social workers and were continuous throughout the two overlapping dependencies.

Dorsey also argues that the State failed to inform the trial court it was unable to provide services. This argument is raised for the first time on appeal. The State responds that the court was apprised at each review hearing that Dorsey remained incarcerated and was not receiving services. The trial court had those orders before it; this court does not. Dorsey has not assigned error to any orders or proceedings in the dependency review hearings. He acknowledged that there were no services available in any of the correctional facilities in which he was incarcerated. Reporting the situation to the court would not have changed that basic fact. Finally, Dorsey contends that the State violated a statutory amendment which took effect in July 2004 that strongly requires the State to provide visitation.[11] Although the same statute previously `encouraged the maximum parent and child . . . contact,’ Dorsey agreed in the dependency disposition order that visitation would be addressed once he was released from incarceration. Dorsey did not thereafter seek visitation with G.M. We decline to consider the impact of the amendment to the statute. The trial court did not err in entering findings that support its conclusion that all necessary services were offered.

Little Likelihood that Conditions Will be Remedied

So Child Can Be Returned in the Near Future

The trial court found that `[t]here is little likelihood that conditions will be remedied so that the child can be returned to his father within the near future.’ `The focus of this factor is `whether parental deficiencies have been corrected.”[12]

Dorsey made no progress in court-ordered services and, once available to participate in services, would need to start at the beginning. Although imprisonment alone does not necessarily justify terminating parental rights, the trial court may consider the causes and frequency of imprisonment in a termination proceeding.[13] Dorsey’s continually recurring incarcerations constituted a major parental deficiency and prevented any possibility of him providing a safe and stable home for a child or even forming a bond with the child.[14] Additionally worrisome was the high speed chase which specifically endangered his three-week-old daughter, an obvious demonstration of parental unfitness.

Magel testified that Dorsey would need at least a year to demonstrate that he was able to break his pattern of frequent incarcerations and remain available to the child. Dorsey also had drug and alcohol, domestic violence, and potential mental health issues. Each of these issues takes time to address, with a favorable outcome difficult to predict. Dorsey had no relationship with G.M. and no parenting skills. The record supports the court’s finding, based upon the testimony of the social workers and Magel, that Dorsey’s asserted plans for G.M. demonstrated his lack of judgment and inability to parent in the near future. The near future must be judged from the child’s perspective.[15] G.M. could not wait for a year after Dorsey’s release from prison (the projected date of his release was uncertain, although Dorsey claimed it was imminent) to see if Dorsey could break his long-term patterns and become available to parent. The trial court’s findings in this regard are supported by substantial evidence.

Continuation of Parental Relationship
The trial court found that continuation of the parent and child relationship clearly diminishes G.M.’s prospects for integration into a stable and permanent home.[16] This finding necessarily follows from the finding that there is little likelihood conditions will be remedied in the near future.[17] Reunification was by no means imminent or even assured. `[W]hat is perhaps eventually possible for the parent must yield to the child’s present need for stability and permanence.[18] The trial court did not err in entering the challenged findings that supported this element.

Best Interests of the Child
Dorsey also argues that termination was not in G.M.’s best interests. G.M. was in a stable and pre-adoptive home, the only home and parent that he had ever known. According to Magel, G.M. was healthy and doing well despite his precarious start. He neither knew, nor knew of, his father. Magel testified it would be devastating for G.M. to be taken from this home. Moreover, it is unclear whether Dorsey will ever be able to parent the child. The evidence was overwhelming that termination was in G.M.’s best interests.

Res Judicata
Dorsey assigns error to the trial court’s res judicata ruling. The trial court noted that he should `pay heed to the findings of Judge Spector that occurred prior to the time that she made findings, and that were available to her in court with regard to [O.D.].’ The trial court’s remarks were directed specifically to whether Dorsey was capable of remedying his parental deficiencies, particularly given his parenting history.

The focus of a termination trial is present parental unfitness. Our Supreme Court has held that the trial court’s findings must not be based on `some notion of res judicata.’[19] The court noted that using the res judicata doctrine `may cast doubt on whether the judge made the required statutory findings based on clear, cogent, and convincing evidence.’[20]

But a parent’s past history is a factor that may be considered in determining present unfitness.[21] Here, the parties stipulated to admitting into evidence the findings of fact and conclusions of law entered by the trial court in the O.D. termination. More importantly, the trial court heard virtually the same evidence that was presented in the earlier termination trial. The testimony of the State’s witnesses covered the time from the O.D. dependency through the trial in this case. The trial court acknowledged as much immediately after making the res judicata remarks, noting that the `current evidence about the period of time up until [the date of trial] I think is consistent with [the previous findings].

We have reviewed the findings of fact and conclusions of law, the court’s oral remarks and the record, and are satisfied that the findings are supported by substantial evidence and meet all the statutory requirements for terminating Dorsey’s parental rights.

Affirmed.

BAKER, ELLINGTON and COLEMAN, JJ.