In the Matter of the Dependency of M.-A.F.-S., dob 4/13/2011, and V.F.-C., dob 11/21/2007, Minor children.
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. STEPHANIE FRANKS,
DENYING MOTION FOR RECONSIDERATION AND REQUEST TO STAY AND
WITHDRAWING AND SUBSTITUTING OPINION
Stephanie Franks filed a motion for reconsideration of the
opinion filed on April 30, 2018 and a request to stay. The
State of Washington Department of Social and Health Services
filed a response to the motion for reconsideration and
request to stay. The panel has determined that the motion
should be denied, but the opinion filed on April 30, 2018
shall be withdrawn and a substitute opinion filed to amend
footnote 1 on page 1 as follows:
The briefs change the caption in this case to use the
mother's initials. "The title of a case in the
appellate court is the same as in the trial court." RAP
3.4; see also Hundtofte v. Encarnacion, 181 Wn.2d 1,
330 P.3d 168 (2014). The case caption in superior court in a
dependency or termination proceeding identifies the children
by name. In an appeal from a dependency or termination
proceeding, by statute, the case caption uses initials only
for the children identified in the trial court caption. See
RCW 13.50.100 (confidentiality of juvenile care agency
records); see also Gen. Order 2017-1 of Divisions I,
II, & III, In re Changes to Case Title (Wash.
(citing RCW 13.50.100).
therefore, it is hereby
that appellant's motion for reconsideration and request
to stay is denied and the opinion filed on April 30, 2018
shall be withdrawn and a substitute opinion amending footnote
1 on page 1 shall be filed.
Franks is the mother of M.-A.F.-S. and V.F.-C. After a
lengthy dependency to allow Franks to address her severe drug
addiction, the court terminated her parental rights to the
two children. Franks contends the termination statutes, RCW
13.34.180 and .190, are unconstitutional both facially and as
applied. Franks also contends the Washington State Department
of Social and Health Services (Department) did not prove all
statutory elements or that termination was in the best
interests of the children. We hold neither the statutory
scheme nor case law support the constitutional challenge to
the termination statutes. Substantial evidence supports the
extensive findings of fact and the conclusion that the
Department proved by clear, cogent, and convincing evidence
that it offered or provided all necessary and available
services capable of correcting parental deficiencies; that
Franks had notice of parental deficiencies and the grounds
for termination; that Franks was currently unfit to parent
her children; and that termination is in the best interests
of the children. We affirm the order terminating Franks'
parental rights to M.-A.F.-S. and V.F.-C.
Franks is the mother of four children, A.L.-C, date of birth
July 22, 2003; V.F.-C, date of birth November 21, 2007;
M.-A.F.-S., date of birth April 13, 2011; and I.T.-V., date
of birth November 12, 2012.
has a long history of severe methamphetamine and marijuana
addiction. Franks tested positive for marijuana at the birth
of V.F.-C. in November 2007 and at the birth of M.-A.F.-S. in
April 2011. Franks admitted using methamphetamine and
marijuana while pregnant with M.-A.F.-S. From June 2011
through November 2012, Franks agreed to participate in
services. Franks obtained a substance abuse evaluation at New
Traditions. The Department also referred Franks for a
neuropsychological evaluation and mental health counseling
services. Franks did not follow through with substance abuse
treatment and declined to engage in mental health services.
was born on November 12, 2012. Franks and I.T.-V. tested
positive for amphetamines. Franks admitted using
methamphetamine during the pregnancy. The Department removed
the four children from her care and filed a dependency
petition. At the shelter care hearing, the Department placed
I.T.-V. with his father. The Department later dismissed the
dependency as to I.T.-V.
January 11, 2013, Franks entered an agreed dependency order
for A.L-C, V.F.-C, and M.-A.F.-S. Franks stipulated to the
facts establishing dependency, including her long and severe
history of substance abuse, drug use during pregnancy, and
not following through with substance abuse treatment, mental
health services, or counseling. Franks stipulated there was
"no parent, guardian or custodian capable of adequately
caring for the children, such that the children are in
circumstances which constitute a danger of substantial damage
to the children's psychological or physical
development." The court found by clear, cogent, and
convincing evidence that "a manifest danger exists that
the children will suffer serious abuse or neglect if the
children are not removed from the home."
court entered a disposition order. The order requires Franks
to follow the November 2012 New Traditions substance abuse
evaluation treatment recommendations, obtain random
urinalyses (UAs) with clear results for 90 days, obtain a
parenting assessment, follow treatment recommendations, and
participate in mental health counseling. Franks expressly
acknowledged she understood the terms of the order, including
"my responsibility to participate in remedial
services," and entry of the dependency order
"starts a process that could result in the filing of a
petition to terminate my relationship with my children if I
fail to comply with the terms of this order and/or I fail to
substantially remedy the problems that caused the
children's out-of-home placement."
Department placed the three children with a maternal cousin.
The court authorized supervised visitation for Franks and the
children two times a week. Department social worker Sarah
Bergner provided referrals to Franks for court-ordered
services, including a mental health evaluation and parenting
2013, Franks absconded with the children. Approximately a
month later, the Department placed the children in licensed
court order following the February 2014 dependency review
hearing states the primary permanency plan is return of the
children to Franks and adoption. In an April 10, 2014 letter
to Franks, Bergner reiterated the court-ordered requirements
and asked Franks to contact her.
I have attempted to call you multiple times without success.
Please, provide me with your current contact
information. It is my hope that together we can
ensure the on-going safety of your children.
failing to complete an outpatient substance abuse program,
Franks enrolled in an inpatient treatment program at Seattle
Drug & Narcotic Center (Seadrunar) in July 2014.
Seadrunar terminated Franks from the program for rule
violations. Franks admitted she relapsed. Franks testified
that at the time, she was "using" drugs about
"75 percent of the time." The court changed the
primary permanency plan to adoption.
December 2014, the Department filed a petition to terminate
Franks' parental rights to A.L.-C, V.F.-C, and M.-A.F.-S.
The petition alleged that beginning with voluntary services
in 2011, the Department offered referrals and services to
address her substance abuse but Franks repeatedly failed to
enter and complete substance abuse treatment and had been
terminated from Seadrunar. The petition alleged Franks
"has declined to participate in mental health counseling
or a parenting assessment, stating that she wants to obtain
sobriety before participating in these services." The
petition alleged there was "little likelihood"
conditions would be remedied in the near future.
The mother has a long history of substance abuse. The
Department has provided her with numerous referrals and
voluntary services to address her needs. Since dependency was
established, she has not complied with court ordered services
or maintained consistent contact with the Department.
The mother has also not engaged in mental health counseling
or a parenting assessment. The mother told the Department she
wants to obtain sobriety before participating in these
The mother has had regular visitation with the children,
however the number of weekly visits have reduced at the
mother's requests, because she reports the visits are too
upsetting to the children. The caretaker who supervises the
visits reports that the children cry and act out during the
visits, that the mother is unable to control the children,
and that the children display behavioral issues following the
April 2015, Franks reentered inpatient treatment at
Seadrunar. Franks told the court that she wanted to continue
substance abuse treatment and planned to participate in the
other court-ordered services. Beginning in May 2015, the
court entered a series of agreed orders to continue the
termination trial to allow Franks to participate in services.
social worker Larry Nelson was assigned to work with Franks
and the children in July 2015. Franks was living at
Seadrunar. Franks was doing well. She spent time with the
children on a regular basis. In September 2015, Franks left
Seadrunar. Franks did not complete the Seadrunar program.
Instead, Franks enrolled in an intensive outpatient treatment
program at New Traditions. New Traditions diagnosed Franks
with a severe amphetamine and cannabis use disorder.
participated in a psychosocial and parenting evaluation with
Dr. Carmela Washington-Harvey in November and December 2015.
Dr. Washington-Harvey did not identify any clinical problems,
parenting behaviors, attitudes, personality traits, or
psychological factors that would adversely affect Franks'
ability to parent. After observing a visit with the children,
Dr. Washington-Harvey believed the interactions were
appropriate and Franks demonstrated a parental bond. Dr.
Washington-Harvey emphasized that remaining sober is a
critical factor in Franks' ability to parent the
children. Dr. Washington-Harvey recommended Franks
participate in parenting services, including parenting
classes and coaching.
February 2016, Franks successfully completed the initial
phase of the outpatient treatment program at New Traditions.
In March 2016, the court authorized overnight visits with the
children. Around this time, Franks started missing outpatient
treatment sessions at New Traditions. In April, Nelson made
arrangements for Franks to engage in family preservation
services with mental health counselor Carmela Maxell.
had difficulty contacting Franks but eventually met with her
four times. Franks told Maxell that she planned to obtain
mental health counseling and had made an appointment with
Cowlitz Tribal Health Services. Maxell "really tried to
press" and motivate Franks to follow through with mental
health treatment and maintain contact with the children.
Franks had stopped attending treatment sessions at New
Traditions. At about the same time, Franks started missing
scheduled visits with the children. Nelson repeatedly told
Franks that missing the visits upset the children and urged
Franks to reengage in chemical dependency treatment and
obtain mental health treatment.
17, 2016, Nelson met with Franks at her home. Franks admitted
she "had relapsed." Nelson asked Franks if she
would agree to get a UA, follow through with treatment at New
Traditions, and engage in mental health treatment at Cowlitz
Tribal Health. Franks agreed. That same day, Nelson drove
Franks to New Traditions for a UA then to Cowlitz Tribal
Health for a chemical dependency evaluation and a mental
health intake assessment.
21, the court granted the motion of the guardian ad litem
(GAL) to suspend overnight visits and allow only supervised
visits with the children. The court ordered Franks to
participate in additional services, including a UA within 24
hours, a hair follicle test for substance use, and 90 days of
random UAs with no positive results. Franks knew about but
did not attend the June 21 hearing. Despite repeated attempts
to contact Franks, Franks had no further contact with the
Department or the children.
two-week termination trial began on September 20, 2016. The
Department called a number of witnesses and the court
admitted over 70 exhibits.
supervisor Cynthia Blair testified about referrals to Franks
for court-ordered services. Blair said that although Franks
was "in and out of contact" at the beginning of the
dependency, the social workers "were good about trying
to connect with" her. Blair testified that social worker
Bergner talked to Franks about "mental health
options" and the social workers tried to initiate a
parenting assessment. But Franks "was very clear to us
that she wasn't prepared to do these additional services
until she got clean. So, she did repeat to us that she wanted
to try to get sober first, and then do her other
in January 2015, Navos Mental Health Solutions child
therapist Marie Sohl met with M.-A.F.-S. on a weekly basis.
Sohl testified, "[T]he ideal is to work with the child
and the parent." Sohl met with Franks on October 27,
2015. Sohl repeatedly reminded Franks about the importance of
participating in the weekly sessions with M.-A.F.-S. Franks
agreed to participate in therapy sessions with M.-A.F.-S.
Sohl expected Franks to attend the weekly therapy sessions
and sent Franks a reminder each week.
attended four sessions in November 2015, two sessions in
January 2016, and two sessions in May 2016. Sohl told Franks
that when she did not come to the sessions, M.-A.F.-S.
"thinks that he did something wrong." But Franks
would not commit to "make it more often." Sohl
testified the intermittent contact was "damaging"
to M.-A.F.-S. and interfering with "bonding with another
family." Sohl testified, "The most important thing
for [M.-A.F.-S.] is predictability, consistency, especially
since he's a child affected by trauma and disrupted
relationships. And so, he-he needs that more than
The intermittent contact is damaging to [M.-A.F.-S.] because
the basis of a child's relationship with their mother is
a basic trust that the child-the mother will be there; that
when he needs something, that she will respond. And it's
one of the very first milestones in emotional theory that
says that a child's first year or so of life is trying to
establish that others are trustworthy; that... there is
stability and consistency of care. If a child receives
consistent, predictable care, then they can develop a trust
in themselves. This trust they will be able to take with
them. And this trust they-in other relationships so that he
would be-feel secure in that he's loved even when
he's feeling threatened. So, it's a very core
milestone that this child does not seem to have established
at this point, which should be established in the first-first
18 months of his life.
foster parents for V.F.-C. and M.-A.F.-S. told Nelson that
Franks "missing more and more visits" was
"really upsetting" the children.
Mom often would let [the children] know specific things:
we're going to go to the zoo, or we're going to have
a barbecue with certain relatives, and things like that. And
then, when the foster parent-generally it was the foster
parent-showed up to drop the kids off when [Franks]
didn't answer the door, didn't answer texts, the kids
were extremely upset, crying. I heard [V.F.-C] apparently
cried after that, and the foster parent noted that [V.F.-C]
is not a kid that cries, that she had had her quite a while,
and hadn't seen her cry. But this was upsetting because
on a Friday evening Mom made a bunch of plans with her, and
the next day was not available.
told Franks about the harm she caused by missing the
scheduled visits with the children and the need to follow
through on the court-ordered services.
I let [Franks] know, and I said that it's really
important that you follow the court services; and not doing
the services, that it's not in the best interest of this
situation. But, especially putting the kids through this is
testified that after Franks left Seadrunar, A.L.-C "made
the decision for quite a few months not to visit his
mother." A.L.-C told Nelson, "I kept believing in
[Franks], but then she lied. And, she kept saying she was
sober; then she wasn't. Or she'd get us back, and
then she wasn't." A.L.-C said he was "just
tired of all that" and "stayed feeling that way for
quite a few months."
told GAL Elizabeth Berris she "was worried about her mom
because she was sick and sleepy a lot." V.F.-C. also
told Berris that while spending time with Franks, V.F.-C.
[V.F.-C] told me that she-that [V.F.-C], herself, drank beer
when she was at a visit; that her mom was in the bathroom for
long periods of time smoking with her friends while she was
watching TV, and that's when she would drink beer; that
her mom then found out and told her not to drink beer, but
that she did it on another time.
Franks was in treatment in early 2016, V.F.-C. told the GAL
that her mother said V.F.-C. would return home by May. But
after Franks "cut off contact with any of her kids"
in June, V.F.-C. "didn't want to visit with her
[V.F.-C] said she wasn't ready to visit with her mom. She
didn't-she didn't want to visit with her mom, she
wasn't ready to see her mom, but someday she wanted to go
home with her mom and her brothers. She also said that she
loved living with ... her current foster placement.
testified that M.-A.F.-S. was doing well. M.-A.F.-S. had
started kindergarten and continued to engage in mental health
therapy with Sohl. Berris said M.-A.F.-S. loves his mother
but does not want to discuss visitation with her.
testified about the effect the missed visits had on V.F.-C.
and M.-A.F.-S. For example, over the 2016 Memorial Day
weekend, Franks arranged to pick up V.F.-C. from her foster
home but then did not show up. That same weekend when the
foster parent tried to drop off M.-A.F.-S., Franks would not
open the door and M.-A.F.-S. "freaked out." Two
days later, Franks did not pick up M.-A.F.-S. as planned.
Franks called the foster parent that afternoon. Franks said
she "was sleeping and had to go do laundry." Berris
also described "Mother's Day weekend" as
"another weekend where Mother had basically disappeared
for the weekend." Both V.F.-C. and M.-A.F.-S. expected
Franks to pick them up. When Franks did not, "both kids
testified Franks' parental deficiency is substance abuse.
Mom is 30 years old. She started using at-using
methamphetamines at 19 years old. So, she's used most of
her adult life. And she has been through many treatment
attempts and has not been successful. She graduated IOP,
then quickly fell off when she was in outpatient. She's
never completed an inpatient treatment.
Berris recommended termination of parental rights to V.F.-C.
These children have been in out-of-home care for almost four
years. [M.-A.F.-S.] came into care at 19 months, and he's
five and a half now. He's grown up without his mom being
there. [V.F.-C] came in at five; she's almost nine now.
Mother has demonstrated that she's not been able to put a
handle on her addiction. And when she relapsed, she relapsed
hard. As Mr. Nelson said, she didn't relapse and was open
and honest and, okay, I'm gathering my supports,
let's address this addiction.... [S]he continued to use,
continued to hide it, and-and dropped out of everything.
She was giving-given all the-the sen/ices and the skills to
remedy these issues, and she hasn't been able to do that.
And her children need an opportunity to move forward and to
land in a permanent home. This emotional tug where they-I
mean, they love their mom. But this emotional tug where they
might see their mom and-and want to go home to their mom, but
then their mom doesn't show up for visits,
it's-it's too hard for the children, and they need to
be able to not wait for their mom anymore. They've been
waiting for her for almost four years. She's been using
since she was 19 and she's 30, and she-her recent
testimony is she's been using all summer.
described the harm to the children caused by continuation of
the parent-child relationship with Franks.
I think there would be great harm. The children would
continue to be in this limbo state, not know-not be able to
form healthy attachments with future care providers. As [the
foster mother] testified, there was a bond because [V.F.-C]
was always looking towards her mom, looking towards going to
her mom's home. And if the Court continues this case or
denies the termination, the children's focus are always
going to be on Mom and that emotional attachment. And Mom-and
the disruption because Mom hasn't been there for them
because Mom lets them down. They don't trust their mom
to-to be there for them. And so, they're going to be
greatly harmed long-term if the Court doesn't grant the
Washington-Harvey testified that because Franks "had a
history of relapse and struggling with that,"
maintaining sobriety was a critical factor in her ability to
parent the children. In her report, Dr. Washington-Harvey
concluded the prognosis for reunification" 'is fair
to moderate with the possibility of being upgraded to good if
[Franks] is able to demonstrate a commitment to change and
show proof that she can apply what she has learned from
services in the parenting of children.'" Based on
Franks' relapse in May or June 2016 and her failure to
participate in services or visit the children in the months
before trial, Dr. Washington-Harvey testified that the
prognosis for Franks' current ability to reunify with the
children was "poor to fair." When asked why she
"previously ... said fair to moderate, but now
you're dropping it down ... from poor to fair," Dr.
I think that sobriety is very important in order to be able
to parent properly. And, the children I would be concerned
about because of what I saw in the records, and also the
mother, the fact that the-the mother is not there for those
children, and she needs to be there. She needs to work on
being a good parent. And, whatever her reasons are for
relapse, I don't know what they are, but I do know that
it would have a huge impact on her children and on her
ability to parent. And, I would question serious-or seriously
her true commitment to change. And, also, I would want to
know what happened to her, because people do relapse, and it
is part of recovery, they say.
But, these children have been without their parents for quite
some time, and they deserve to have stability.
department manager for permanency planning and adoption,
Laurie Washington, testified that filing a termination
petition is a critical step to recruit prospective adoptive
families. Washington said fewer than 25 percent of
prospective families consider adopting children if a
termination petition has not yet been filed because the
"legal risk or emotional risk" is too high. By
contrast, if the court terminates parental rights, the pool
of placement options increases significantly. Washington
testified that "at least one, if not more, families are
coming to specifically meet [M.-A.F.- S.]" at an
upcoming event. Both the current and ...