No. 19421-3-III.The Court of Appeals of Washington, Division Three. Panel One.
Filed: November 20, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 99-7-00711-8, Hon. Ellen K. Clark, June 13, 2000, Judgment or order under review.
Counsel for Appellant(s), Susan M. Gasch, Attorney At Law, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Carl P. Warring, 1116 W Riverside, W 1116 Riverside, Spokane, WA 99201.
Counsel for Minor(s), Ray S. Pollari, 2200 6th Ave Ste 1200, Seattle, WA 98121.
STEPHEN M. BROWN, A.C.J.
Tammy S. appeals the trial court’s order terminating her parental rights to her son, D.S. She argues the evidence is insufficient to meet the clear, cogent and convincing evidence standard required under former RCW 13.34.180 (1999). We affirm.
FACTS
D.S. was born May 14, 1998, to Tammy S.[1] D.S. was removed from the mother and found dependent on July 6, 1998. Paternal interests were defaulted.
Following the dependency order, Tammy was diagnosed with `borderline or low average intelligence and personality disorder, probably paranoid type.’ Report of Proceedings at 10. In an effort to address Tammy’s needs, the Department of Social and Health Services (DSHS) offered several services geared toward improving Tammy’s parenting skills and reuniting her with the child. These included individual counseling, Family Preservation Services, two parenting education classes, hands-on parenting instruction, and a personal dynamics class. In addition, Tammy was allowed supervised visits with D.S. from April 1999 to the time of trial, generally on a twice-weekly basis.
All of the professionals who worked with Tammy or observed her interaction with D.S. testified that Tammy was truly interested in parenting D.S. and rarely missed an opportunity to be with him. They agreed that Tammy was generally receptive to new programs offered and displayed a genuine desire to gain better parenting skills.
Unfortunately, these experts also agreed Tammy was incapable or unwilling to incorporate recommendations from these services into her own parenting skills, and incapable of following directions she disagreed with. Instead, she would become argumentative and defensive to suggestions; she reacted inappropriately to the child’s needs and cues. For instance, she would overfeed him, insisting the child eat a specific amount, even though the child displayed discomfort with continued feeding. She would fail to burp him, and attempt to engage in activities inappropriate for his age. Tammy tended to put her own needs above those of D.S. As a concrete thinker, Tammy had difficulty adjusting to circumstances that differed from specific instructions.
Tammy’s previous child was removed for unresolved neglect. Tammy’s abusive past and lack of social skills made it difficult for her to maintain friendships and support systems. All State witnesses agreed Tammy had not made substantial progress, and was incapable of parenting D.S. on her own.
In May 1999, DSHS filed a termination petition. In December 1999, the trial court, reasoning not all available services had been provided, denied the petition. The court desired placement in a therapeutic childcare program, one providing daily contact in a therapeutic setting, in order to provide Tammy increased contact with D.S. and a better opportunity to succeed. Tammy was given 90 days to engage in therapeutic childcare. However, DSHS requested an early review hearing in February 2000.
At the early review hearing, DSHS related problems finding a therapeutic childcare program and sought guidance. DSHS explained that three therapeutic childcare programs were available in the Spokane area. After a disruptive visit, Tammy was denied access to the first program. Tammy was found incompatible with the second program. Tammy and D.S. were third in line for a program offered at the YWCA, not counting placements for siblings of clients already being served. Admission to the YWCA program was estimated as two to six months away. The court again denied DSHS’s request to terminate, and set another review hearing in March to give the full 90 days previously ordered. It stressed it would then consider whether termination was appropriate.
At the March 2000 hearing, D.S. had, except for siblings of existing program clients, reached the top of the waiting list. No firm indication existed when D.S. might be admitted to the program. Christina Salisbury, who supervised Tammy’s visits with D.S., testified about a degenerating situation. D.S. was not bonding with Tammy. Ms. Salisbury described D.S.’s attempts to avoid Tammy. Tammy would inappropriately attempt to feed D.S. On one occasion, Tammy clipped D.S.’s fingernails so short he would shake his hands and cry. Tammy failed to recognize his discomfort or consider suggestions. Tammy attempted to put shoes on D.S. that were too large, and argumentatively, continued despite concerns from Ms. Salisbury and D.S.’s resistance. This caused the visit to be cut short.
Karen Licklider, the social worker assigned to Tammy’s case, no longer recommended therapeutic childcare because of D.S.’s behavior problems during and after his visits with Tammy. She testified that following visits with Tammy, the daycare workers noted D.S. shut down emotionally, or became aggressive, once biting another child.
Considering the uncertainty of timely program availability, Tammy’s failure to improve, and D.S.’s deteriorating behavior, the court decided therapeutic daycare was not reasonably available in the near future, thus satisfying the fourth criteria in former RCW 13.34.180. After concluding the fifth and sixth criteria of former RCW 13.34.180 had also been met, the trial court terminated Tammy’s parental rights.
We accepted accelerated review.
ANALYSIS
The issue is whether, under a clear, cogent, and convincing standard, the trial court erred when finding sufficient evidence existed to support its conclusions that all six elements of former RCW 13.34.180 were met before entering its order terminating Tammy’s parent-child relationship. Parents have a fundamental right to the care and custody of their children, and a trial court asked to interfere with that right should employ great care. In re Welfare of H.S., 94 Wn. App. 511, 530, 973 P.2d 474 (1999), cert. denied, 529 U.S. 1108 (2000). In order to permanently terminate parental rights, the trial court must find, by clear, cogent, and convincing evidence, that elements of former RCW 13.34.180(1) through (6) are met. In re Welfare of H.S., 94 Wn. App. at 518. Thereafter, the court must also find, by a preponderance of the evidence, that termination is in the best interest of the child. In re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998); In re Dependency of A.V.D., 62 Wn. App. 562, 571, 815 P.2d 277 (1991). Once these findings are made, a trial court has broad discretion on whether to terminate parental rights. In re Welfare of H.S., 94 Wn. App. at 518.
The first three elements are not in issue. D.S. had been found dependent, pursuant to a proper dispositional order, and D.S. had been removed from Tammy for more than six months under the dispositional order. Tammy contests solely the last three elements of former RCW 13.34.180:
(4) That . . . all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; and (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. . . . In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors:
. . . .
(b) Psychological incapacity or mental deficiency of the parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for extended periods of time, and documented unwillingness of the parent to receive and complete treatment or documentation that there is no treatment that can render the parent capable of providing proper care for the child 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.
When considering the sufficiency of the evidence in a termination case, the appellate court considers the record as a whole to determine if substantial evidence supports the trial court’s findings. In re Welfare of H.S., 94 Wn. App. at 519. Evidence is sufficiently clear, cogent, and convincing when it tends to show the ultimate fact in issue to be `highly probable.’ Id.
At the December 1999 termination hearing, the trial court concluded the State had failed its burden of showing all necessary services, reasonably available and capable of correcting Tammy’s parental deficiencies in the foreseeable future had been provided. The court ordered DSHS to offer therapeutic childcare and indicated it would review the matter in 90 days. Three months later, when Tammy remained on a waiting list, the trial court found that therapeutic childcare was not reasonably available, and terminated Tammy’s parental rights.
Tammy argues DSHS has the responsibility to provide reasonably available services deemed necessary. Tammy speculates that had DSHS earlier referred her to therapeutic childcare, she would have most likely been admitted and participating long before the termination hearing. However, the trial court’s concern was finding a possible solution. The court decided three months was a sufficient period to determine if therapeutic childcare was available and beneficial. At the end of three months, the court learned Tammy was, partly through her own shortcomings, ineligible for two of the potential programs and on an indefinite waiting list for the third program. Further, the court learned D.S. was deteriorating in the interim. Tammy is not entitled to indefinite time to gain admission to the program. DSHS is charged with offering all necessary services, not guaranteeing their availability. Former RCW 13.34.180(4) (1999). Tammy was unacceptable in two of the three available programs, and had in the past been unsuccessful working with at least one of the caregivers in the third program. The director of the third program could not give a definitive time when D.S. might be admitted because, although first on the waiting list, he was still competing with children given preferences. Even if admitted, the program could last months or years.
Given the evidence that D.S. was reacting negatively to the time he spent with Tammy, a protracted wait was not reasonable. Joseph Goldstein, Anna Freud, Albert Solnit, Beyond the Best Interests of the Child 43 (1973) (`Three months may not be a long time for an adult decisionmaker. For a young child it may be forever.’).
Tammy next challenges the trial court’s finding that there was little likelihood that her condition would be remedied so that D.S. could be returned to her in the near future. Former RCW 13.34.180(5). She contends her limited progress reflected the limited services offered her. But again, Tammy’s argument fails to consider the time element. The question is whether the reunification would be in the `near future.’ Former RCW 13.34.180(5).
Here, the evidence sufficiently shows that even if D.S. were accepted into the YWCA program, reunification, if possible, was certainly a long way off. In addition, when Tammy progressed, it was slight and fleeting, as she soon regressed. Given these facts, the evidence is sufficient to establish that Tammy’s limitations render her unable to understand or meet the needs of the child. Former RCW 13.34.180(5)(b); In re Welfare of H.S., 94 Wn. App. at 528.
Tammy next challenges the trial court’s finding that continuation of her relationship with D.S. clearly diminishes his prospects for early integration into a stable and permanent home. Former RCW 13.34.180(6). Generally, a finding that continuation of the parent-child relationship diminishes the child’s prospects for early integration into a stable and permanent home, necessarily follows from an adequate showing that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in near future. In re Dependency of J.C., 130 Wn.2d 418, 924 P.2d 21 (1996). Here, D.S. was removed from his home near birth, and was already 21 months old at the final termination hearing. D.S. was reacting with increased negativity to Tammy, including acting out after visits, and falling asleep to escape contact with her. It is highly probable that these increasingly unfortunate behaviors would impair his integration into a future home with adoptive parents. Thus, the evidence is sufficient to support the integration element.
Tammy has assigned error to the trial court’s finding that termination was in the best interest of the child. However, she presents no argument concerning this alleged error. Therefore, it is considered abandoned. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987). Given the facts considered above, the evidence is sufficient to support the trial court’s finding that termination was in the best interest of the child. Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SWEENEY, J., KATO, J.