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In re Welfare of K.M.M.

Court of Appeals of Washington, Division 2

May 5, 2015

In the Matter of the Welfare of K.M.M. []

Oral Argument January 8, 2015.

Page 930

Appeal from Kitsap Superior Court. Docket No: 13-7-00084-9. Judge signing: Honorable Jeanette M Dalton. Judgment or order under review. Date filed: 01/14/2014.

Jodi R. Backlund (of Backlund & Mistry ), for appellant.

Eric J. Nielsen and Dana M. Nelson (of Nielsen Broman & Koch PLLC ); Jennifer L. Dobson ; and Robert W. Ferguson, Attorney General, and Peter E. Kay, Assistant, for respondents.

Authored by Linda CJ Lee. Concurring: Jill M Johanson, Bradley A. Maxa.


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[187 Wn.App. 549] Linda CJ Lee, J.

¶ 1 On January 14, 2014, the juvenile court entered an order terminating J.M.'s[1] parental rights to K.M.M. J.M. appeals the juvenile court's order, arguing that the Department

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of Social and Health Services failed to prove that all services reasonably capable of correcting parental deficiencies were expressly and understandably offered or provided. J.M. also argues that the juvenile court's order violates his right to due process because the juvenile court failed to make a finding that he was currently unfit to parent K.M.M. Under the facts of this case, the Department proved that all necessary services were expressly and understandably offered or provided. And, the juvenile court made an explicit finding of unfitness by finding that J.M. is unable to parent K.M.M. Accordingly, we affirm the juvenile court's order terminating J.M.'s parental rights.

[187 Wn.App. 550] FACTS

¶ 2 J.M. and D.C. are the parents of K.M.M., a girl born in 2002, and K.M., a girl born in 2008.[2] K.M.M. and K.M. were removed from their parents' custody in February 2009, and they were found to be dependent children in April 2009. In July 2009, K.M.M. and K.M. were placed with K.M.M.'s current foster parents. When K.M.M. entered dependency care she was " parentified," meaning she tried to take care of her younger siblings rather than relying on adults. She also had no attachment to adults and did not know how to trust or rely on adult caregivers.

A. Progress During Dependency

¶ 3 In September 2009, K.M.M. began individual therapy with Cory[3] Staton. Staton began working with K.M.M. on forming appropriate attachments with adults, accepting adults as her caregivers, and reducing her parentified behavior. Because K.M.M.'s parents were unable to care for her at the time, Staton worked with K.M.M.'s primary caregivers (K.M.M.'s foster parents) during her therapy. Staton gave K.M.M.'s foster parents tools for working with K.M.M. and for encouraging her to form appropriate attachments with adult caregivers.

¶ 4 During the dependency, J.M. was ordered to engage in a drug and alcohol evaluation and to follow all recommended treatment. J.M. also was ordered to engage in mental health treatment, parenting classes, and a domestic violence assessment. K.M.M. and K.M. had visitation with J.M. and D.C.

¶ 5 In 2010, D.C. gave birth to K.C. K.C. was removed from her mother's care and placed in the same foster home as her half-sisters.

[187 Wn.App. 551] ¶ 6 In June 2011, the Department filed a petition for termination of parental rights as to K.M.M., K.M., and K.C. But the Department took a voluntary nonsuit of the petition in February 2012.

¶ 7 On February 24, 2012, the dependency court entered a new dependency review hearing order. The order stated that J.M.'s drug treatment services were completed and no longer needed. J.M. was ordered to continue attending therapy at Kitsap Mental Health. The order also continued weekly visitation between K.M.M. and J.M. The order stated that " [p]arents can participate in counseling as appropriate and recommended by counselor." Clerk's Papers (CP) at 320 (Ex. 12). Finally, the dependency court ordered monthly meetings between the parents, social worker, guardian ad litem, and attorneys to make sure they " stay on track for plan of reunification." CP at 321 (Ex. 12).

B. K.M.M.'s Reluctance To Visit Parents

¶ 8 In March 2012, K.M.M. began expressing reluctance about visiting with her parents. In April, K.M.M. completely refused to visit with her parents. The Department held meetings in order to brainstorm ways to encourage K.M.M. to attend visits. However, the attempts to get K.M.M. to attend visits were unsuccessful.

¶ 9 On July 5, the dependency court ordered that:

[A] family therapist is necessary on this case to render an opinion on the appropriateness of visitation, and how such visitation

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can occur, after consultation with the parents, the parties, and the child. The parties agree that Tom Sherry shall provide this opinion to the parties and the court on parental visitation with [K.M.M.].

CP at 324 (Ex. 13). The dependency court also appointed an attorney for K.M.M.

¶ 10 After speaking to all the parties and reviewing the case, Sherry recommended a plan for " natural contact" between K.M.M. and her parents. 2 Report of Proceedings [187 Wn.App. 552] (RP) at 241. Sherry recommended that, after K.M.M.'s sisters were transitioned into D.C.'s home, the parents could be present when the social worker brought K.M.M. for a sibling visitation. Sherry also recommended that there only be incidental, passive contact between K.M.M. and her parents as they were " coming[ ] and going[ ] as a way to soften that impasse." 2 RP at 239.

¶ 11 In October 2012, the Department began a structured plan to transition K.M. and K.C. back into D.C.'s home. The Department began implementing Sherry's recommended " natural contact" between K.M.M. and her parents. Although K.M.M. had visits with her sisters, she continued to refuse to visit with either of her parents.

¶ 12 K.M.M.'s first two visits with her siblings involved D.C.; J.M. was not present. The " natural contact" went as planned, although K.M.M. did not engage with D.C. K.M.M.'s first " natural contact" visit with J.M. was in December 2012. When the van arrived with K.M.M., J.M. saw K.M.M. hiding in the back of the van. He opened the back of the van and put his hands on her shoulders. K.M.M.'s social worker terminated the visit. After the incident, the dependency court suspended visitation.

C. Termination Petition

¶ 13 On February 21, 2013, the Department filed a petition for termination of J.M.'s parental rights to K.M.M. On March 20, the dependency court entered a permanency planning order. The dependency court noted that " the child's [therapist] recomended [sic] only natural contacts which did not go well." CP at 343 (Ex. 15). The dependency court ordered that visitation remain suspended because it found " visitation with [J.M.] to be a threat to [the] child's health, safety, or welfare." CP at 348 (Ex. 15). The only service that was ordered for J.M. was to continue with mental health counseling. The primary permanency plan was adoption, with an alternative plan to return home.

¶ 14 On August 19, the dependency court entered another dependency review hearing order. The dependency [187 Wn.App. 553] court ordered J.M. to continue participation in mental health counseling. The dependency court denied J.M.'s request for reunification.[4] As to visitation, the order stated:

At this time the department is recommending that the visitation between [K.M.M.] and her parents remain suspended. She continues to refuse this contact despite attempts to come up with opportunities/options for contact in a more restrictive fashion. During the sibling visitation in May of 2013 she became fearful when she believed she was going to see [D.C.] and reports she again hid under the table. She has refused sibling visits since this time.

CP at 360 (Ex. 16).

D. Termination Trial

¶ 15 The termination trial began on October 29, 2013. The juvenile court heard the following testimony.

1. Christopher Richardson--Social Worker

¶ 16 Christopher Richardson was the social worker assigned to K.M.M.'s case from late 2011 until the summer of 2012. When

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Richardson was assigned the case, J.M. had completed most services but was still presenting with mental health concerns. After February 2012, Richardson began the process of setting up consistent mental health treatment for J.M. Until that point arranging mental health treatment had been delayed due to scheduling and communication [187 Wn.App. 554] issues. Richardson also arranged for J.M. to participate in Project Safe Care.[5]

¶ 17 K.M.M. was continuing to attend individual therapy with Cory Staton to address social and emotional development as well as concerns regarding parentification. While Richardson was assigned the case, the dependency court ordered that J.M. could participate in K.M.M.'s therapy if appropriate and recommended by her counselor. K.M.M.'s therapist did not recommend that J.M. participate in K.M.M.'s therapy during the time Richardson was the assigned social worker.

¶ 18 Richardson testified that from February until April 2012, K.M.M. attended visitation. The visits overall were normal, but K.M.M. appeared withdrawn at times. K.M.M. did not ask to end any visits early. But, in mid-April, K.M.M. began ending visits early or refusing to go. When K.M.M. began resisting visitation, the parties began brainstorming ways to get her to attend visits, including more individual visits (instead of with her sister, K.M.) and community visits. But, K.M.M. continued refusing to attend visits. In July, after attempts to get K.M.M. to resume visitation failed, the dependency court ordered the evaluation with Sherry. Shortly thereafter, K.M.M.'s case was reassigned to another social worker. When Richardson was leaving the case, he noted that K.M.M. had " made up her mind on what she wanted for herself, and it didn't appear, at that time, to include reunification with her parents." 1 RP at 34. Richardson had never had a case where a child has taken as strong a position as K.M.M. has in this case.

2. Cory Staton--K.M.M.'s Therapist

¶ 19 K.M.M. began individual therapy with Cory Staton in September 2009. Staton testified that K.M.M. presented with insecure attachments and inability to rely on adults as [187 Wn.App. 555] caretakers. K.M.M. also presented with some emotional delays, including an inability to express her feelings. K.M.M. was also parentified, meaning that she tried to take care of her younger siblings rather than relying on adults. Staton testified that parentified behavior is addressed " [t]hrough learning to trust caretakers to meet [children's] needs, that the caretakers are going to meet their needs and keep them safe, physically and emotionally." 1 RP at 65. Staton began treating K.M.M. by engaging in play therapy. She also encouraged K.M.M.'s foster parents to model how to identify and express feelings. Staton also worked with K.M.M.'s foster parents so that they could help K.M.M. " heal in the home environment as well." 1 RP at 67.

¶ 20 Staton further testified that the standard practice for working with children with attachment issues is to work with the child's current caretakers first, and then begin working with the child's biological parents when the biological parents are transitioning into the role of the child's primary, reliable caretakers. The focus of the child's therapy is teaching them to attach to and rely on their caretakers, whether the caretaker is the child's foster parents or the child's biological parents. Staton explained that once a child has learned how to rely on adults and create secure attachments then the process of transitioning the child home works on transferring and building trust and attachments between the child and the biological parents. Creating secure attachments with K.M.M.'s foster parents facilitated her ability to form other attachments. The work with K.M.M.'s foster parents did not exclude or eliminate her secure attachment with other adults. However, Staton testified that she did not work with J.M. because, as far as she knew, K.M.M. was never being transitioned back into J.M.'s care.

¶ 21 Staton testified that, at the time of trial, K.M.M. had a very secure attachment to her foster family and she identified them as her family. Staton also testified that

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breaking K.M.M.'s secure attachment with her foster family [187 Wn.App. 556] at that point would have prevented her from being able to move into the next developmental stage in a safe and healthy way. Staton further testified that the current situation was causing fear and anxiety for K.M.M. because she was faced with a real fear of losing her family, and needed permanency with her foster family. When the juvenile court asked what would be in K.M.M.'s best interests--returning to J.M. or remaining with her foster family--Staton testified that K.M.M. needed to stay with her foster family because it is " really damaging to lose a really secure attachment at the age that she is at." 1 RP at 140.

3. Tom Sherry--Visitation Evaluator

¶ 22 Tom Sherry is a counselor who was retained by the Department to " give an opinion, or regarding what is in [K.M.M.'s] interest, for visitations and provide a recommendation with that as kind of a central question." 2 RP at 225-26. From Sherry's first meeting with K.M.M., K.M.M. was adamant that she did not want any contact with either of her parents. Sherry also met with J.M. Sherry opined that J.M. had trouble understanding where K.M.M. was coming from and why reunification was not the next step for K.M.M.

¶ 23 After meeting with the parties, Sherry recommended that any visitation be structured around K.M.M.'s visits and relationships with her younger sisters. Sherry did not believe that it was realistic that K.M.M. would want to go back to her parents. And, there did not seem like there was much of a possibility of reunification. Instead, the hope was that if K.M.M. maintained a relationship with her sisters, the incidental contact with her parents may ...

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