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In re Dependency of M.-A.F.-S.

Court of Appeals of Washington, Division 1

July 2, 2018

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.


         Appellant 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 The panel has determined that the motion should be denied, but the opinion filed on April 30, 2018 shall be withdrawn and a substitute opinion filed to amend footnote 1 on page 1 as follows: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. Ct. App.), ?fa=atc.genorders_orddisp&ordnumber=I-021&div=I (citing RCW 13.50.100).

         Now, therefore, it is hereby

         ORDERED 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appellant's motion for reconsideration and request to stay is denied and the opinion filed on April 30, 2018 shall be withdrawn and a substitute opinion amending footnote 1 on page 1 shall be filed.

          SCHINDLER, J.

         Stephanie 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.[1]


         Stephanie 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.

         Franks 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.

         I.T.-V. 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.

         On 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."[2] 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."

         The 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."

         The 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 assessment.

         In July 2013, Franks absconded with the children. Approximately a month later, the Department placed the children in licensed foster care.

         The 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.[3]

         After 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.

         In 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 services.
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 visits.

         In 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.

         Department 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.

         Franks 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.

         In 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.

         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.

         By May, 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.

         On June 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.

         On June 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.

         The two-week termination trial began on September 20, 2016. The Department called a number of witnesses and the court admitted over 70 exhibits.

         Department 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 services."

         Beginning 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.

         Franks 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 anything."

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.

         The 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.

         Nelson 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 extremely difficult.

         Nelson 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."

         V.F.-C. 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. drank beer.

[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.

         When 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 mom."

[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.

         Berris 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.

         Berris 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 were devastated."

         Berris 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, [4] but 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. and M.-A.F.-S.
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.

         Berris 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 petition.

         Dr. 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. Washington-Harvey testified:

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.

         A 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 ...

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