No. 33993-5-II.The Court of Appeals of Washington, Division Two.
April 10, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 04-7-00907-5, Barbara D. Johnson, J., entered October 14, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Armstrong, JJ.
PENOYAR, J.
HB is the mother of MRK, who was declared a dependent child in July 2003. MRK has lived with her paternal grandmother in Southern Oregon since April 2004. The Department of Social and Health Services (DSHS) filed for termination of HB’s parental rights in November 2004. HB was unable to attend the termination trial because she was incarcerated. The trial court denied her motion for a continuance, but she was allowed to testify by telephone and was represented by counsel. The trial court terminated HB’s parental rights, and she now appeals, alleging violations of her constitutional due process rights and insufficient evidence to support the trial court’s findings. Her arguments are without merit, and we affirm.
FACTS
On the night of October 18, 2002, MRK was asleep in the passenger seat of HB’s car, improperly fastened into a poorly installed child seat, when HB was pulled over for driving erratically. HB was arrested, and MRK was taken into protective custody. She was two years old at the time.
HB was arrested on an outstanding misdemeanor warrant and for driving under the influence, after refusing to submit to a voluntary sobriety test (she explained to the officer that her attorney had advised her not to submit to sobriety tests “if she was drunk or high”). Ex. 9 at 3. She was later charged with unlawful possession of a controlled substance (methamphetamine), though the charges for driving under the influence and possession were later dismissed.
MRK stayed in foster care for a month following this incident, and was then placed with her maternal aunt after HB signed a voluntary placement order. At this time, HB also signed a voluntary service agreement in which she agreed to participate in parenting education, domestic violence and anger management services, and drug and alcohol services. HB was allowed to visit MRK whenever she wanted, as long as she called first, and generally visited a couple of times a month.
In July 2003, MRK was found to be a dependent child with respect to HB. The court ordered HB to complete a mental health evaluation and intensive outpatient treatment; participate in substance abuse support groups; submit to random urinalysis testing (UA); refrain from using drugs or alcohol; resolve all criminal matters; maintain regular contact with the assigned social worker; and maintain a safe and stable living environment.
HB’s social worker was aware that HB had also been ordered into drug treatment as part of her community supervision related to criminal convictions in Oregon, and she informed HB that completing that treatment would also satisfy the Washington dependency drug treatment requirements.
After a change of placement hearing in August 2003 (which HB did not attend), MRK was ordered back into foster care, as her relatives could no longer care for her. HB attended about one-third of her visitations during this time, and she was often late or did not show up at all.
Another change of placement hearing was held in April 2004 (which HB did not attend), and MRK was sent to Grants Pass (in Southern Oregon) to live with her grandmother. DSHS offered to provide HB with transportation to Grants Pass to visit MRK, but she never went. HB was incarcerated soon after this change of placement hearing.
HB was released from jail in 2004, but she was not allowed to visit MRK without written permission from her parole officer, Scott Nielsen. In August 2004, Nielsen wrote a memo authorizing HB to contact MRK once she complied with DSHS conditions[1] , including alcohol and drug evaluation/treatment, UA testing, and attending substance abuse support groups twice weekly. HB’s social worker discussed this memo with HB and advised her that she needed to complete a drug and alcohol evaluation and follow through with recommended treatment, support groups, and random UA testing before the social worker could approve visitation.
HB never complied with these conditions. As a result, she never received permission (from her parole officer or DSHS) to visit MRK. Thus, visiting MRK would have violated her supervision.
DSHS filed a petition to terminate HB’s parental rights on November 30, 2004. In June of the following year, HB was incarcerated again for a parole violation.
She was scheduled for release on August 16, six days after the scheduled trial date. HB’s counsel moved for a continuance of six to eight weeks to accommodate HB’s release and counsel’s scheduled vacation. The trial court denied the continuance, finding that holding the trial sooner rather than later was in the child’s best interest, as long as HB could testify by telephone or other means.
HB testified by telephone at trial. She testified that she had been clean for 72 days, which the trial court noted was approximately the same amount of time she had been incarcerated.
The trial court found that (1) HB was repeatedly offered and provided extensive services by DSHS and by the Oregon criminal justice system; (2) HB did not successfully complete the required services; (3) HB’s home was unsafe; (4) HB was in and out of jail throughout the course of the dependency due to substance abuse; (5) there was little or no hope that HB would be in a position to remedy her addiction due to the long-standing nature of the substance abuse problem and the lengthy treatment needed; and (6) there was little likelihood that the conditions that led to the dependency would be remedied so the child could be returned to HB in the near future. The trial court therefore found that termination of the parent-child relationship was in the child’s best interests and entered an order terminating HB’s parental rights in October 2005. A commissioner affirmed the termination in May 2006, and HB now appeals.
ANALYSIS
I. Due Process
A. “Actions of the State”
HB argues that she was denied her constitutional right to due process because the State’s actions “effected a de facto termination of her parental rights.” Appellant’s Br. at 18. While the authority she cites could potentially support this argument, she fails to apply any of it to the facts of this case.
HB did not sufficiently brief this constitutional argument. We will not review issues that are inadequately argued or briefed or that have been given only passing treatment. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004). Parties that raise constitutional issues must present considered arguments to this court; “naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.” In re the Matter of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)). Because HB’s constitutional argument here was not adequately briefed, we decline review.
B. MRK’s Placement with Paternal Grandmother/Conditions of Parole
HB argues that the combination of MRK’s placement in Grants Pass and the probation condition prohibiting contact with MRK unless she was in full compliance with the dependency order “effected a de facto termination of her parental rights.” Appellant’s Br. at 24. She states that the probation condition rendered her “unable” to visit MRK. Appellant’s Br. at 24. DSHS responds that the dependency hearing was the time to litigate placement and visitation matters, not the termination hearing. We agree. The orders that HB criticizes were either entered in her earlier appeal (the orders in Page 6 the dependency) or are not reviewable by this court (the Oregon orders).
We will not validate any “de facto” termination argument, especially where, as here, the parent had every opportunity to argue about these issues in her dependency hearing and subsequent appeal. The trial court properly considered both the dependency orders and the Oregon orders as simply part of the case posture and, if it found that those orders excused HB’s failure to visit, it could have done so. The question on review is limited to whether sufficient evidence supported the termination court’s decision. In re the Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983); In re the Dependency of C.B., 79 Wn. App. 686, 692, 904 P.2d 1171 (1995). We find that the evidence was sufficient, and we affirm the termination order.
C. Constitutional Right to be Physically Present at Trial
HB argues that the trial court violated her constitutional due process rights by denying her motion for a continuance and preventing her from attending the trial in person. But, HB was able to testify by telephone and counsel represented her at the hearing.
DSHS responds that there is no constitutional right to be physically present at a termination hearing and that due process requirements are satisfied as long as the incarcerated parent is afforded an opportunity to defend through counsel, with a full and fair opportunity to present and rebut evidence. DSHS asserts that HB’s right to be heard, to introduce evidence, and to confront witnesses were satisfied in these proceedings. DSHS’s arguments are persuasive.
We review a trial court’s decision to deny a continuance for manifest abuse of discretion. See In re the Dependency of V.R.R., 134 Wn. App. 573, 580, 141 P.3d 85 (2006). A trial court abuses its discretion when it exercises that discretion based on untenable grounds or reasons. V.R.R., 134 Wn. App. at 581. When denial of a motion to continue allegedly violates constitutional due process rights, the appellant must show either prejudice by the denial or that the result of the trial would likely have differed had the continuance been granted. V.R.R., 134 Wn. App. at 581.
We apply a three-factor balancing test to ensure that a parent’s due process right to be heard is protected when they are not allowed or are unable to attend a termination hearing In re the Dependency of M.S., 98 Wn. App. 91, 94, 988 P.2d 488 (1999). We balance (1) the parent’s interest, (2) the risk of error the procedures created, and (3) the State’s interests. M.S., 98 Wn. App at 94; see also In re the Welfare of Key, 119 Wn.2d 600, 610-11, 836 P.2d 200
(1992).
The parental interests at issue here are HB’s fundamental liberty interest in the care and custody of her children and her procedural due process rights. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) In re the Dependency of T.R., 108 Wn. App. 149, 154, 29 P.3d 1275 (2001). As stated above, a mother’s interest in the care of her children is not absolute: when the rights of a child conflict with the rights of a parent, the rights of the child prevail. RCW 13.34.020.
The essential requirements of procedural due process are notice and an opportunity for a hearing appropriate to the nature of the case.
M.S., 98 Wn. App. at 94; In re the Welfare of Myricks, 85 Wn.2d 252, 254, 533 P.2d 841 (1975). It is undisputed that a parent has the right to a meaningful opportunity to be heard at a termination hearing.
See RCW 13.34.090(1); In re the Dependency of J.W., 90 Wn. App. 417, 429, 953 P.2d 104 (1998). However, there is no right for an incarcerated parent to be present at such a hearing. M.S., 98 Wn. App. at 94; In re Darrow, 32 Wn. App. 803, 808, 649 P.2d 858 (1982).
“The right to appear personally and defend is not guaranteed by due process so long as the prisoner was afforded an opportunity to defend through counsel and by deposition or similar evidentiary techniques.”
Darrow, 32 Wn. App. at 808. Although th Darrow court stated that a continuance after presentation of the State’s case in chief is one method of ensuring a parent’s right to defend, this is not th only method. Darrow, 32 Wn. App. at 809.
Here, HB’s right to defend was ensured by her opportunity to testify by telephone and have capable and experienced counsel represent her.
The State has a vital interest in protecting the children’s welfare, including quickly establishing a safe, stable, and permanent home for MRK. See RCW 13.34.020 (“The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter”); In re the Welfare of Sumey, 94 Wn.2d 757, 762-63, 621 P.2d 108 (1980) (the State has a parens patriae right and responsibility to intervene when parental actions seriously conflict with the child’s physical or mental health). In this case, it was clear from the evidence that HB was not going to be able to provide a safe, stable, and permanent home — she had been unable to take any steps toward providing such a home in the nearly three years since MRK had been out of her care.
Finally, the trial court procedures created little risk of error. HB had a meaningful opportunity to be heard at the termination hearing — she testified over the telephone and “capable and experienced” counsel represented her. Report of Proceedings (RP) at 10. The trial court made every effort to ensure HB was able to testify and that her due process rights were protected. Furthermore, HB has not stated how her lack of physical presence prejudiced her or how the outcome would have differed had she been present at the hearing.
The trial court did not abuse its discretion in denying HB’s motion for a continuance. The trial court took every precaution to ensure that HB’s due process rights were not abridged, and our examination of the three factors above illustrates that they were not.
II. Likelihood of Improved Conditions
HB argues that, without visitation, the State had no basis for establishing the conditions that would not be remedied and, therefore, they did not meet their burden of proof. The State responds that (1) DSHS provided the trial court with substantial evidence that there was little likelihood conditions would be remedied so that MRK could return to her mother in the near future, and (2) there is no evidence in the record indicating that HB was trying to become clean and sober and establish a safe and stable lifestyle. The record supports DSHS’s position.
In an appeal from a termination order, the trial court’s findings should not be disturbed if substantial evidence supports them.
Hall, 99 Wn.2d at 849; C.B., 79 Wn. App. at 692. Because DSHS must prove each statutory allegation by clear, cogent and convincing evidence in a termination proceeding, the evidence must be sufficiently substantial that this court can conclude that the allegations are “highly probable.”
In re the Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973).
Here, the evidence illustrates that it is “highly probable” that there was little likelihood that HB’s conditions would be remedied such that MRK could have been returned to her in the near future. See RCW 13.34.180(1)(e). “[W]hat is perhaps eventually possible for the [mother] must yield to the child’s present need for stability and permanence.”
T.R., 108 Wn. App. at 166. While it is possible that HB will not be incarcerated as often because her probation period is now over, she has failed to remedy any
condition related to her drug addiction or her living situation.
Between April 2003 and August 2005, HB was incarcerated approximately six times. All the incarcerations related back to a 1999 arrest in Oregon for unlawful possession of a controlled substance (methamphetamine) and driving under the influence of intoxicants. HB finally pled guilty to these charges in April 2003. Her supervision period was scheduled to end in August 2005.
HB has not demonstrated a commitment to recovery. Even after the termination petition was filed, HB did not comply with court ordered treatment. In March 2005, HB was ordered to participate in a drug treatment program that required daily attendance at stabilization groups and random UAs. HB participated in intake, but she only attended groups sporadically, had four no-shows for mandatory random UAs, and provided UAs that were positive for methamphetamine, including one on the last weekend in May 2005. HB was discharged from the program due to missed appointments, general non-compliance, and a positive UA.
Furthermore, when not incarcerated, HB lived in a home that she admitted was not safe and stable, and where others involved in criminal activity lived. HB’s counselor at the Day Reporting Center attempted to secure other housing for her, but because HB had not complied with probation and substance abuse treatment requirements, she was not eligible for other housing when it became available.
DSHS points out that HB was still not candid about her drug use at her termination trial. HB testified at the termination trial that she did not begin using drugs until MRK was removed from her care. However, HB pleaded guilty to unlawful possession of methamphetamine in 1999, before MRK was born. The Juvenile Court and this court both found that HB possessed methamphetamine when she was arrested in October 2002 (the arrest that resulted in MRK’s placement in foster care).
At the time of the termination hearing, MRK had been out of her mother’s care for almost three years. In that time, HB made no progress in addressing the issues that led to her daughter’s dependency and never complied with the terms of her supervision or the dependency disposition.
Her social worker was unable to estimate how long it would take HB to make the required changes because no change had yet occurred.
It seems highly unlikely that HB’s situation will improve, even though her supervision period is over. The trial court did not err in finding that the likelihood for improvement was slim.
III. Early Integration into a Stable and Permanent Home
HB argues that there was insufficient evidence at trial to find that maintenance of the mother-child relationship would diminish MRK’s prospects for early integration into a stable and permanent home. DSHS responds that there was sufficient evidence. We agree with DSHS.
In a termination proceeding, the State must prove 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)(f). This finding “necessarily follows from an adequate showing” that there is little likelihood that conditions would be remedied so that the child could be returned to the parent in the near future. T.R., 108 Wn. App. at 166 (citing In re Dependency of J.C., 130 Wn.2d 418, 427, 924 P.2d 21 (1996)). The possibility that the child may return to its biological family inevitably deprives the child and his or her new family of permanency. As discussed above, there is little likelihood that conditions will be remedied so that MRK can return to HB in the near future. In the nearly three years that MRK has been out of her care, HB has not made steps toward foreseeable reunification. Substantial evidence supports the trial court’s determination that it is highly probable that continuation of the parent-child relationship clearly diminishes MRK’s prospects for early integration into a stable and permanent home.
IV. Termination in the Best Interests of the Child
HB argues that the trial court’s finding that termination was in MRK’s best interests was “conclusionary” and that if visitation had been allowed, the bond between MRK and HB would have continued. Appellant’s Br. at 30. The State responds that substantial evidence supports the trial court’s determination and we should give it deference.
Where the factors in RCW 13.34.180 are proven by clear, cogent, and convincing evidence, the trial court considers whether the State proved by a preponderance of the evidence that termination of the parent-child relationship is in the child’s best interests. RCW 13.34.190(2); T.R., 108 Wn. App. at 166-67; In re the Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963 (1998). When a parent has been unable to rehabilitate over a lengthy dependency period, a court is “fully justified” in finding termination is in the child’s best interests rather than “leaving [the child] in the limbo of foster care for an indefinite period” while the parent seeks to rehabilitate herself.
T.R., 108 Wn. App. at 167 (quoting In the Matter of A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)).
Considering the evidence in light of our duty to place very strong reliance on trial court determinations of what course of action will be in the child’s best interests, In re the Matter of Pawling, 101 Wn.2d 392, 401, 679 P.2d 916
(1984) (citations omitted), the record supports the trial court’s finding that termination is in MRK’s best interests. HB has been unable to rehabilitate herself in the nearly three years that MRK has been out of her care, including over two years of dependency. MRK is adjusting well and “doing great” in her grandmother’s home. RP at 129. It is a stable and permanent placement. We hold that the trial court did not err in finding that termination was in MRK’s best interests.
Conclusion
The court afforded HB a full opportunity to defend in a fair hearing while represented by counsel. Neither the placement of her child, the terms of her dependency, nor the denial of her motion for a continuance infringed on her due process rights. The trial court’s conclusions were founded upon clear, cogent and convincing evidence that (1) there is little likelihood for improvement in the near future, (2) guardianship would hinder MRK’s early integration into a stable and permanent environment, and (3) termination of the parent-child relationship was in the child’s best interest. We therefore affirm the termination order.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
BRIDGEWATER, P.J.
ARMSTRONG, J.