The opinion
p ;' "" n
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of NO. 72656-1-
C.T.,
Minor.
v.
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND DIVISION ONE
HEALTH SERVICES,
Respondent,
v.
KARINATORRESCANO- UNPUBLISHED OPINION
HERNANDEZ,
FILED: September 28, 2015
Appellant.
Lau, J. — Karina Torrescano-Hernandez appeals an order terminating her
parental rights to her son, C.T. Torrescano argues the trial court's order should be
reversecj because (1) requiring Torrescano to admit that she burned her son's hands
violated her Fifth Amendment right against compelled self-incrimination, (2) her counsel
was ineffective for failing to assert that right, (3) the State's failure to provide notice of
No. 72656-1-1/2
her parental deficiencies violates due process, (4) the State failed to prove there was
little likelihood that additional services would be futile, (5) the State failed to prove there
was little likelihood conditions could be remedied so that C.T. could be returned to
Torrescano, and (6) the State failed to prove RCW 13.34.180(1 )(d) and (e) by clear,
cogent, and convincing evidence. We conclude that Torrescano's Fifth Amendment
privilege was not self-executing, she fails to show her counsel's performance was either
deficient or prejudicial, and the State satisfied all necessary elements of RCW
13.34.180. We affirm the order of termination.
FACTS
Karina Torrescano-Hernandez is the mother of C.T., born in Mexico on May 27,
2006.1 In September 2012, the State filed a dependency petition based on allegations
that Torrescano burned C.T's hands on a stove to discipline him. C.T. said his mother
burned his hands because she was upset that he had taken a friend's iPod. Torrescano
denied burning C.T.'s hands. The dependency petition alleged that C.T. had been
abused and that he had no parent capable of adequately caring for him under RCW
13.34.030(6)(b) and (c). The State filed an amended petition on October 1, 2012,
alleging that Torrescano also previously hit C.T. with a shoe and a spoon. On
November 2, 2012, the State charged Torrescano with assault of a child in the second
degree (domestic violence). It later amended the charge to include deliberate cruelty.
On December 6, 2012, the parties entered an agreed order of dependency.
Torrescano stipulated that C.T. was dependent because she had been charged with
second degree assault of a child, was incarcerated, and was incapable of caring for
1C.T.'s father and brother, NT., are not involved in this appeal.
-2-
No. 72656-1-1/3
C.T. In the order of dependency, Torrescano stipulated that any convictions or plea
agreements related to the pending criminal charges would become part of the basis for
C.T.'s dependency. She further stipulated that two required services, psychological
evaluation and a domestic violence perpetrator's assessment, would commence after
the criminal case was resolved.
On June 14, 2013, a jury convicted Torrescano of the lesser included offense of
assault of a child in the third degree. The court sentenced Torrescano to three months
in jail with credit for time served. The court also included a no contact order preventing
Torrescano from contacting C.T. until June 14, 2018. The court noted that the
no-contact order would be subordinate to all future orders relating to contact between
C.T. and Torrescano.
Torrescano, a Mexican-born citizen residing illegally in the United States, was
sent to the U.S. Immigration and Customs Enforcement (ICE) detention center shortly
after completing her jail sentence. On November 14, 2013, the State filed a petition to
terminate Torrescano's parental rights while she was still detained at the ICE facility in
Tacoma, Washington. She remained in detention until March 2014, when ICE granted
Torrescano temporary asylum from deportation until the dependency case was
resolved. After Torrescano's release from detention, the State made referrals for the
two court-ordered services in the October 2012 dependency order—a psychological
evaluation and a domestic violence perpetrator's assessment.
The termination trial took place on August 18-20 and September 8, 2014, two
months after Torrescano completed the court ordered services. The court heard
extensive testimony from the following witnesses: Torrescano; Frederica Rose and
-3-
No. 72656-1-1/4
Sarah Cope, two different social workers tasked with managing Torrescano's case; Dr.
David Morgan, who performed a psychological evaluation of Torrescano; Ted Vidan,
who conducted a domestic violence assessment of Torrescano; Janelle Ibsen, a board
certified physician's assistant who examined C.T. after the burning incident; Marty
Quintana, C.T.'s Guardian Ad Litem; Crystal Hynek and Lorencita Villegas, two
therapists who treated C.T.; and C.T.
Dr. David Morgan, a licensed psychologist who performed the psychological
evaluation for Terrescano, testified that Torrescano would not be capable of caring for
C.T. in the furture:
Ms. Torrescano-Hernandez is currently in denial regarding the
elements of her conviction ... it is difficult for individuals to make needed
and lasting changes to their behavior if they do not acknowledge the
behaviors in the first place. While Ms. Terroscano-Hernandez does not
have any diagnosed mental health issues, the fact that she is in denial
regarding the convicted behavior could impact her ability to effectively
parent her child.
[Because of] the fact that she is in denial regarding the details of
her conviction, it is not likely that Ms. Torrescano-Hernandez would be
capable of adequately and consistently caring for [C.T.] in the foreseeable
future. She would have to take greater accountability for her behavior and
start to address the underlying issues that motivated this behavior in the
first place in order to move forward.
Report of Proceedings (RP) (Aug. 19, 2014) at 15-18. Dr. Morgan also believed that
future treatment would not be effective for Torrescano because "it's difficult for people to
work on a problem that they don't see is a problem." RP (Aug. 19, 2014) at 17. He
stated that, under the circumstances, C.T. should not be forced to have contact with
Torrescano.
-4-
No. 72656-1-1/5
Ted Vidan, who conducted Torrescano's domestic violence assessment, also
testified. Like Dr. Morgan, Vidan testified that Torrescano denied burning C.T.'s hands.
Vidan nevertheless believed that Torrescano posed no risk to C.T. He stated that
Torrescano would benefit from a parenting class focused on appropriate discipline. But
on cross-examination, Vidan conceded that Torrescano's denial could be a problem
because "without accountability, we don't know how sincere a person is in correcting."
RP(Aug. 19, 2014) at 102.
The court also heard testimony from Janelle Ibsen, a board certified physician's
assistant who conducted the first medical examination of C.T. after the burning incident.
Ibsen noted that it was unusual to see burns on both hands, so she asked C.T. how the
burns occurred. C.T. told her that Torrescano "had gotten extremely upset at him and
then, therefore, taken his hands and burnt them on the stove top." RP (Sept. 8, 2014)
at 65-66. Ibsen believed the burn marks on C.T.'s hands were consistent with C.T.'s
explanation of events. When Ibsen proceeded with her examination "from a head to toe
fashion," she noticed "various scars and dark marcations all over [C.T.'s] body." RP
(Sept. 8, 2014) at 66. When she asked C.T. what happened, he told her that his mother
had pinched his thighs and hit him with various objects.
Crystal Hynek testified that she treated C.T. as his therapist from March 2013 to
September 2013. Hynek stated that C.T. was doing well with his foster parents and that
he did not want to be removed from his current placement with them. C.T. told Hynek
that Torrescano hit him and burned his hands. C.T. also told Hynek that he was afraid
of Torrescano, that he was afraid to testify at the criminal trial, and that he was afraid
Torrescano would take him away.
-5-
No. 72656-1-1/6
In February 2014, C.T. re-enrolled in therapy with Lorencia Villegas. C.T. was
having problems with stealing and lying at home. C.T. told Villegas that he did not feel
safe. C.T. experienced frequent nightmares and crying spells at night. Villegas testified
that C.T.'s behavior was largely due to fear of Torrescano. For example, C.T.
expressed feeling nervous and scared when Torrescano was released from jail. C.T.
told Villegas that he felt safe with his foster parents and asked her when he was going
to be adopted. Villegas believed C.T.'s mental health would deteriorate if he was
removed from his foster parents. She stated that C.T. had adjusted well at school,
made friends, and participated in extracurricular activities. C.T. felt anxious about not
knowing when he would be adopted. Villegas stated that resolving the issue of C.T.'s
permanent placement was crucial to his mental health.
Sarah Cope, the social worker managing C.T.'s case, provided similar testimony.
She stated that C.T. had adjusted well to his placement with his foster parents and that
he wanted to be adopted by them. Cope believed that termination of Torrescano's
parental rights was in C.T.'s best interests so that he could gain permanency in a stable
home.
Torrescano also testified. She acknowledged that she had been convicted of
third degree assault of a child, but denied that she had burned his hands. Torrescano
believed she was ready to provide a home for C.T. that day. She believed that she did
not need any help or services. She could not think of any reason why C.T. should not
be returned to her immediately. Torrescano stated that she did not take C.T. to a doctor
after the burning incident because of her immigration status and the fear that she might
be deported.
-6-
No. 72656-1-1/7
C.T. was eight-years-old when he testified at the termination trial. He stated that
Torrescano burned his hands on the stove and that it was not an accident. C.T. said he
did not want to live with Torrescano. He stated that he wanted to live with his foster
parents "forever," "[b]ecause they won't hurt me." RP (Sept. 8, 2014) at 78.
After the trial, the court granted the State's petition to terminate Torrescano's
parental rights pursuant to RCW 13.34.180 and .190. The court based its conclusion on
Torrescano's history of inappropriate punishment, her inability to acknowledge that
history and thereby correct it, and C.T.'s resulting emotional trauma:
It is in the best interest of the child that all of the parental rights of
Karina Torrescano-Hernandez be terminated under RCW 13.34.180 and
.190. The mother is not currently safe to be with him. She has engaged
in inappropriate punishment, causing physical harm which appears to
have occurred on more than one occasion. Without the mother being able
to recognize how this particularly extreme last incident could have
occurred, it is unlikely that if he was placed with his mother that he would
not be hurt again. Furthermore, it is in [C.T.'s] best interest, because he is
currently deathly afraid of his mother. He is suffering from adjustment
disorder with anxiety. It would be emotionally damaging for him to have
contact with the mother at this time. Even with months of reintegration
therapy it is dubious that he would ever be able to be with his mother
without being seriously or significantly afraid of her or at least in a
significant state of anxiety.
Clerk's Papers (CP) at 18. Accordingly, on October 21, 2014, the trial court entered an
order terminating Torrescano's parental rights. Torrescano appeals.
ANALYSIS
Fifth Amendment Right Against Self-incrimination
Torrescano argues that during the court-ordered psychological evaluation she was
forced to choose between incriminating herself by admitting she burned C.T.'s hands or
having her parental rights terminated. She contends this violated her Fifth Amendment
No. 72656-1-1/8
right against compelled self-incrimination and requires reversal of the court's order
terminating her parental rights. We conclude that Torrescano's Fifth Amendment
privilege was not self-executing here because the trial court's order requiring a
psychological evaluation did not compel Torrescano to disclose self-incriminating
information.
The Fifth Amendment provides that no person "shall be compelled in any criminal
case to be a witness against himself." U.S. Const, amend. V; see also Wash. Const.
art. I § 9 ("No person shall be compelled in any criminal case to give evidence against
himself.").2 The privilege may be raised in any proceeding, "civil or criminal, formal or
informal, where the answers might incriminate [the questioned person] in future criminal
proceedings." Lefkowitz v. Turlev, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274
(1973). However, the privilege is generally not self-executing and must be expressly
asserted. State v. Jacobsen, 95 Wn. App. 967, 977 P.2d 1250 (1999). But when
compulsion is present, the privilege is self-executing, and an individual "does not waive
the privilege by failing to invoke it." United States v. McLaughlin, 126 F.3d 130, 135 (3d
Cir. 1997). Compulsion exists when a person is threatened with serious penalties if the
evidence sought is not produced. In re Dependency of J.R.U.-S., 126 Wn. App. 786,
794, 110P.3d773(2005).3
The "penalty" exception is available only if "(1) the person gives answers that
would incriminate him or her in a separate criminal proceeding and (2) the State makes
2"The protection provided by the state provision is coextensive with that provided
by the Fifth Amendment." State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008).
3The parties agree that other circumstances indicating compulsion, such as
custodial interrogation, are not relevant here. See Jacobsen, 95 Wn. App. at 973.
No. 72656-1-1/9
express or implied assertions that exercise of the Fifth Amendment privilege will result
in the imposition of a penalty " State v. Post. 118 Wn.2d 596, 610, 826 P.2d 172
(1992). We note that, here, Torrescano never made any incriminating statements.
During her psychological evaluation, she denied any wrongdoing whatsoever. She also
testified at the termination hearing, where she continued to deny that she burned C.T.'s
hands. Torrescano contends that it is irrelevant whether she actually made any
incriminating statements, citing Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20
L.Ed. 2d 1082 (1968) and Spevack v. Klein, 385 U.S. 511. 87 S. Ct. 625. 17 L. Ed. 2d
574 (1967) for the proposition that a person need not make self-incriminating
statements for the right to be self-executing. See Appellant's Reply Br. at 11. But in
both Gardner and Spevack, the petitioners expressly asserted their Fifth Amendment
right against self-incrimination and the Supreme Court held they were punished for
asserting the privilege. See Gardner, 392 U.S. at 274; Spevack. 385 U.S. 512-13.
Where, as here, a person does not invoke the privilege, he or she must show they made
incriminating statements. Post. 118 Wn.2d at 610.
Torrescano failed to show any "concrete, imminent threat" of a certain penalty.
J.R.U.-S. 126 Wn. App. at 795. In J.R.U.-S.. we held that "while termination of parental
rights is a consequence of sufficient gravity to qualify as compulsion, the penalty cases
have generally required a showing that a penalty would follow directly and more or less
automatically from the refusal to answer questions." J.R.U.-S., 126 Wn. App. at 794.
We further explained that "there is no compulsion absent a certain and serious penalty,
such as an express threat to file a termination petition if the parent invoked the
privilege." J.R.U.-S.. 126 Wn. App. at 795. We concluded the parents in J.R.U.-S. were
-9-
No. 72656-1-1/10
not compelled to respond to questions in a court ordered psychological evaluation
because "there was no evidence that a termination petition or any other serious adverse
consequence was certain, or even likely, to follow from the parents' refusal to answer
questions in the evaluation." J.R.U.-S.. 126 Wn. App. at 795.
Here, Torrescano cannot show that failure to respond to questions in her
psychological evaluation would "directly and more or less automatically" result in
termination of her parental rights. J.R.U.-S, 126 Wn. App. at 794. The parents in
J.R.U.-S. were fundamentally dissimilar than Torrescano because no charges had been
filed against them and no termination petition had been filed. Here, Torrescano had
already been convicted of assault of a child in the third degree and termination
proceedings were underway when she voluntarily agreed to undergo a psychological
evaluation. While a threat to file a termination petition would have been improper
compulsion in J.R.U.-S.. Torrescano cannot show any similar compulsion here.
Termination was not contingent on her admitting guilt, nor was termination threatened if
she refused to answer any questions in her psychological evaluation. She was never
expressly required to answer any questions in any way. See In re A.N., 298 Mont. 237,
995 P.2d 427, 435 (2000) (treatment plan required parent to affirmatively explain the
cause of a child's injuries and cooperate with law enforcement to resolve the criminal
charges gave parent a "Hobson's choice of either successfully completing the
requirements of [the] treatment plan, thereby incriminating himself in the criminal
proceeding, or refusing to complete the treatment plan, with the substantially certain
penalty of having his parental rights terminated"). Because the court did not expressly
require Torrescano to either admit guilt or face termination, we conclude she was not
-10-
No. 72656-1-1/11
compelled to make self-incriminating statements. Her Fifth Amendment privilege
therefore, was not self-executing.
The out-of-state authority Torrescano relies on supports our conclusion. In
J.R.U.-S., we cited two Minnesota cases illustrating the difference between requiring a
parent to engage in a psychological evaluation and threatening that parent with a
penalty if he or she refused to admit guilt. In re Welfare of J.G.W.. 433 N.W.2d 885
(Minn. 1989); In re Welfare of J.W.. 415 N.W.2d 879 (Minn. 1987). JAAA involved a
disposition order in a dependency proceeding that "ordered the parents to obtain
psychological evaluations and to explain the death of their 2-year-old nephew, who had
been in their care, consistent with the medical findings." J.G.W., 433 N.W.2d at 885.
The State's attorney in J.W. expressly stated that if the parents persisted in invoking
their Fifth Amendment privilege, the State would file a termination petition. J.W., 415
N.W.2d at 882. The court held that the threat to file a termination petition was an
impermissible penalty for invoking the Fifth Amendment privilege and that "the
protection afforded by the privilege has been activated." J.W., 415 N.W.2d at 883. The
court explained that a trial court could not expressly require the parents to incriminate
themselves in therapy. J.W.. 415 N.W.2d at 883. But the court nevertheless held that it
was constitutionally permissible to require the parents to attend therapy generally, even
if that therapy ultimately results in the termination of parental rights because the parents
choose to forego incriminating disclosures:
We hold that the trial court's order, to the extent it requires
appellants to incriminate themselves, violates appellants' Fifth
Amendment rights and is unenforceable . . . But this is as far as the
privilege extends protection. While the state may not compel therapy
treatment that would require appellants to incriminate themselves, it may
-11-
No. 72656-1-1/12
require the parents to otherwise undergo treatment. Therapy, however,
which does not include incriminating disclosures, may be ineffective; and
ineffective therapy may hurt the parents' chances of regaining their
children. These conseguences lie outside the protective ambit of the Fifth
Amendment.
J.W., 415 N.W.2d at 883 (emphasis added). The Supreme Court of Minnesota
repeated this rationale in J.G.W.:
[In J.W.I we also said that while the state could not directly compel
the parents to incriminate themselves as part of the treatment plan, the
state could require the parents to undergo treatment successfully and the
parents' failure to admit their guilt might as a practical matter make them
fail in treatment... As we put it, "[T]he risk of losing the children for failure
to undergo meaningful therapy is neither a 'threat' nor a 'penalty' imposed
by the state" but is "simply a consequence of the reality that it is unsafe for
children to be with parents who are abusive and violent."
J.G.W.. 433 N.W.2d at 886 (quoting JLW, 415 N.W.2d at 884).
Torrescano also relies heavily on In re Interest of Clifford M., 6 Neb. App. 754
577 N.W.2d 547 (1998). In Clifford, a juvenile court required a parent to enroll in a
therapy program "which the court was aware required her to make incriminating
statements as a prerequisite to enrollment." Clifford. 577 N.W.2d at 557. The court
held that this requirement violated the parent's right against self-incrimination. Clifford.
577 N.W.2d at 554-55. But the court nevertheless agreed with both JAAA and J.G.W
that this was different than requiring a parent to engage in meaningful therapy that
might involve admitting to past wrongdoing:
[T]here is a very fine, although very important, distinction between
terminating parental rights based specifically upon a refusal to waive
protections against self-incrimination and terminating parental rights based
upon a parent's failure to comply with an order to obtain meaningful
therapy or rehabilitation, perhaps in part because a parent's failure to
acknowledge past wrongdoing inhibits meaningful therapy. The latter is
constitutionally permissible; the former is not.
-12-
No. 72656-1-1/13
Clifford. 577 N.W.2d at 544 (emphasis added).
Like in J.W. and J.G.W.. here, Torrescano was never expressly required to admit
guilt. Nor was she ordered to enter a therapy program that required her to make self-
incriminating statements prior to enrollment, as in Clifford. Here, the court ordered a
psychological evaluation. As a part of that evaluation, Dr. Morgan asked Torrescano to
address the methods of discipline she had used with C.T. in the past. As a practical
matter, these questions invited Torrescano to disclose self-incriminating information,
without which her therapy might be less effective. Even failing to engage in meaningful
therapy may ultimately weigh in favor of terminating Torrescano's parental rights. But
this consequence falls outside of the Fifth Amendment's protection. See J.G.W., 433
N.W.2d at 886 ("[T]he risk of losing the children for failure to undergo meaningful
therapy is neither a 'threat' nor a 'penalty' imposed by the state" but is "simply a
consequence of the reality that it is unsafe for children to be with parents who are
abusive and violent." (quoting J.W.. 415 N.W.2d at 884)). Torrescano failed to show
sufficient compulsion triggering a self-executing Fifth Amendment right against self-
incrimination.
Ineffective Assistance of Counsel
Next, Torrescano argues that if her Fifth Amendment right against self-
incrimination was not self-executing because there was no compulsion, then her
counsel was constitutionally ineffective for failing to expressly assert that right. We
conclude that her counsel was constitutionally effective. First, allowing Torrescano to
provide her version of events by denying any wrongdoing is a reasonable trial strategy.
-13-
No. 72656-1-1/14
Second, even if counsel had asserted Torrescano's Fifth Amendment right, Torrescano
cannot show a reasonable probability that the outcome would have been different.
Parents have a constitutional right to appointed counsel in termination
proceedings. In re Welfare of J.M.. 130 Wn. App. 912, 921, 125 P.3d 245 (2005). To
determine whether counsel was ineffective, we apply the same test articulated in
Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See,
e.g.. In re Dependency of S.M.H.. 128 Wn. App. 45, 61, 115 P.3d 990 (2005). "To
prevail on a claim of ineffective assistance of counsel, counsel's representation must
have been deficient, and the deficient representation must have prejudiced the
defendant." State v. Aho. 137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland 466
U.S. at 687. "To establish ineffective representation, the defendant must show that
counsel's performance fell below an objective standard of reasonableness. To establish
prejudice, a defendant must show that but for counsel's performance, the result would
have been different." State v. McNeal. 145 Wn.2d 352, 362, 37 P.3d 280 (2002)
(citation omitted). Failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim. Strickland, 466 U.S. at 700.
First, Torrescano has failed to overcome the strong presumption that counsel's
performance was effective. We are reluctant to find ineffective assistance of counsel
except in the most extreme cases. "[S]crutiny of counsel's performance is highly
deferential and courts will indulge in a strong presumption of reasonableness." State v.
Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To show deficiency, Torrescano
must establish that no legitimate strategic or tactical reasons supported her attorney's
choice to not assert her Fifth Amendment privilege. See State v. McFarland. 127 Wn.2d
-14-
No. 72656-1-1/15
322, 336-37, 899 P.2d 1251 (1995). But choosing not to assert this privilege was a
legitimate strategy in this case. By answering Dr. Morgan's questions and testifying at
the termination trial, Torrescano was able to present her version of events—that C.T.
burned his own hands. Throughout the dependency proceedings, the criminal trial, her
psychological evaluation, and the termination proceedings, Torrescano maintained that
she did not burn C.T.'s hands. It was a reasonable trial strategy to forego her Fifth
Amendment privilege and present this testimony so as to discredit C.T.'s testimony and
demonstrate that the home environment did not warrant terminating Torrescano's
parental rights.4
But even if Torrescano could show that her counsel's performance was deficient,
she cannot show a reasonable probability that the outcome would have been different
had counsel asserted Torrescano's Fifth Amendment privilege. As discussed above,
requiring Torrescano to participate in a psychological evaluation did not violate her Fifth
Amendment right against self-incrimination. All of the cases supporting that conclusion,
discussed above, involve litigants who expressly asserted their Fifth Amendment right
against self-incrimination in response to court-ordered therapy. See J.R.U.-S, 126 Wn.
App. at 794; JJAA, 415 N.W.2d at 883; J.G.W.. 433 N.W.2d at 886. Accordingly, even if
Torrescano's attorney had asserted her Fifth Amendment privilege in response to the
psychological evaluation, the outcome likely would have been the same. Torrescano
failed to show prejudice.
4We note that Torrescano also argues that failure to preserve error for appeal
can constitute ineffective assistance of counsel. This is irrelevant because we have
addressed the alleged error on the merits above.
-15-
No. 72656-1-1/16
Notice
Torrescano argues the State's failure to provide adequate notice of her parental
deficiencies violated due process. She claims the State never gave her prior notice that
denying she burned C.T.'s hands could constitute a parental deficiency. We disagree.
Torrescano received sufficient notice.
Termination proceedings are accorded strict due process protections. In re
Matter of Darrow, 32 Wn. App. 803, 806, 649 P.2d 858 (1982). The due process
protections afforded a parent in a termination case include "[n]otice, open testimony,
time to prepare and respond to charges, and a meaningful hearing before a competent
tribunal in an orderly proceeding." In re Dependency of H.W., 70 Wn. App. 552, 555
n.1,854P.2d 1100 (1993) (quoting In re Moselev. 34 Wn. App. 179, 184, 660 P.2d 315
(1983)). "The parents must be clearly advised in adequate time to meet [the termination
petition] to prevent surprise, helplessness and disadvantage. Moreover, definite
allegations of the purpose of the hearing are necessary to enable the parents to
determine intelligently whether to admit or contest the petition." In re Welfare of Martin,
3 Wn. App. 405, 410, 476 P.2d 134 (1970).
The initial dependency petition and the amended dependency petition indicated that
Torrescano's inconsistent explanation of C.T.'s wounds was a basis for parental
deficiency. The first dependency petition notified Torrescano of her parental
deficiencies. The petition provides: "The child, [C.T.] has significant, unexplained burns
to the palms of both hands. The mother's explanation regarding the burns is not
consistent with the child's injuries." Exhibit (Ex.) 1 at 3. The petition also alleged that
C.T. stated his mother burned his hands. It also indicated that Torrescano told law
-16-
No. 72656-1-1/17
enforcement and Child Protective Services that C.T. burned himself. The amended
dependency petition stated that medical experts concluded the age of the wounds were
not consistent with the mother's explanation of when the wounds occurred and that it
was unlikely C.T. would have burned himself. The petition stated that the "burns are
clearly inscribed suggesting very rapid, brief contact or contact being held in a fixed
position." Ex. 3 at 6. The amended petition also indicated that medical staff observed
multiple scars on C.T.'s body and that C.T. stated his mother hit him with various
objects. Torrescano also specifically stipulated that she had been charged with assault
of a child in the second degree and that any conviction or plea agreement would
become part of the basis for dependency. Taken together, the dependency petitions
indicate that (1) C.T. suffered burns and other injuries, (2) C.T. said that Torrescano
caused these injuries, and (3) Torrescano's statements were inconsistent with C.T.'s
statements and the conclusions of medical staff.
The termination petition made similar allegations. It stated that C.T. was removed
from Torrescano's custody due to his injuries. It provided that Torrescano's parental
deficiencies included "mental health issues, lack of parenting skills and domestic
violence." CP at 100. It noted that her conviction for third degree assault of C.T.
contributed to these parental deficiencies. The petition specifically alleged domestic
violence as one of Torrescano's parental deficiencies and that her conviction for burning
C.T.'s hands was related to this deficiency. Denying this incident occurred is obviously
relevant to whether "there is a likelihood that conditions will be remedied so that [C.T.]
can be returned to" Torrescano. RCW 13.34.180(1 )(e). For notice to be sufficient, the
allegations must be specific enough to "prevent surprise, helplessness and
-17-
No. 72656-1-1/18
disadvantage." In re Dependency of A.M.M.. 182 Wn. App. 776, 791, 332 P.3d 500
(2014) (quoting Martin, 3 Wn. App. at 410). Under these circumstances, Torrescano
cannot claim she was surprised, rendered helpless, or disadvantaged. Torrescano
received ample prior notice that denying that she burned C.T.'s hands could serve as a
basis for finding parental deficiency.
Torrescano's reliance on A.M.M.. is misplaced. In that case, we found a trial court's
order terminating parental rights failed to provide sufficient notice to the parent when it
included a parental deficiency that had not been identified in either the dependency or
termination petitions. A.M.M., 182 Wn. App. at 791-93. Specifically, the termination
petition alleged that the parent's substance abuse constituted a deficiency, but the trial
court ultimately held that the parent's substance abuse in conjunction with her lack of
knowledge regarding her children's developmental needs justified termination. A.M.M.,
182 Wn. App. at 792. The termination petition did not indicate that ignorance regarding
the children's developmental needs would justify termination. A.M.M.. 182 Wn. App. at
791-92.
In A.M.M., one of the grounds for terminating parental rights was unrelated to what
the State had alleged in its termination petition. Here, however, Torrescano's denial is
directly related to deficiencies the State alleged. The State provided sufficient notice
that domestic violence was an alleged parental deficiency. The trial court's findings
show that Torrescano's denial of any wrongdoing indicated that she may still pose a
physical threat to C.T. and therefore termination was justified:
The mother continues to deny that she abused [C.T.] in any way,
and has denied any inappropriate discipline, and denied the need for any
services whatsoever. . . [N]ot being able to understand a need for
-18-
No. 72656-1-1/19
treatment even now or acknowledge it at a time where she has already
gone through the criminal proceedings renders her a continuing unfit
parent. Should [C.T.] be placed with mother now or in the near future, he
would be a severe risk of serious physical injury.
CP at 17 (emphasis added). Unlike in A.M.M., the trial court here did not base its
termination ruling on any deficiency unrelated to what was alleged in the dependency or
termination petitions. Those petitions specifically alleged domestic violence as a
deficiency, and Torrescano's unwillingness to acknowledge a need for treatment
regarding that deficiency indicated C.T. might still be in danger of physical harm. As
noted above, one relevant factor for termination is whether "there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the near
future." RCW 13.34.180(1 )(e). Torrescano's denial is relevant to this inquiry and she
received sufficient notice that it could be relevant to termination.
The State's Offered Services
Torrescano argues that the State failed to meet its burden under RCW
13.34.180(1 )(d) by refusing to offer any services tailored to correct her parental
deficiencies. The trial court found that any future services would be futile, and that
finding is supported by substantial evidence. The record shows that the State met its
burden under RCW 13.34.180(1)(d).
RCW 13.34.180(1 )(d) that "services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future have been expressly and understandably offered or provided." RCW
13.34.180(1 )(d). Torrescano argues the trial court erred when it excused the State from
-19-
No. 72656-1-1/20
providing any further services because Torrescano denied burning C.T.'s hands. But
the State does not have to provide services where to do so would be futile, or where a
parent is unwilling or unable to take advantage of those services. In re Dependency of
Ramguist. 52 Wn. App. 854, 861, 765 P.2d 30 (1988); see also In re Welfare of M.R.H..
145 Wn. App. 10, 25-26, 188 P.3d 510 (2008).
The record supports the trial court's conclusion that additional services would
have been futile here. Dr. Morgan testified that additional services would be ineffective.
Torrescano stated she required no additional services and was prepared to reunite with
C.T. immediately without any additional help. Torrescano continued to deny she burned
C.T. Dr. Morgan stated that, during his evaluation, Torrescano denied applying
unreasonable discipline. Under these circumstances, substantial evidence supports the
trial court's determination that future services would be ineffective.
Even if future services could have corrected Torrescano's parental deficiencies,
those services must be capable of correcting the parental deficiencies "within the
foreseeable future." RCW 13.34.180(1)(d). Dr. Morgan testified that, even if
Torrescano could engage in therapy in good faith, it would take a long period of time to
reach a point where she could make significant changes to make sure events like C.T.'s
burns "didn't happen again." RP (Aug. 19, 2014) at 16. Dr. Morgan concluded that
Torrescano could not be safely reunited with C.T. in the foreseeable future even with
treatment. Sarah Cope, C.T.'s social worker, also concluded that Torrescano's
deficiencies could not be remedied by additional services in the foreseeable future.
Substantial evidence supports the trial court's finding that additional services would not
remedy Torrescano's parental deficiencies in the foreseeable future.
-20-
No. 72656-1-1/21
Torrescano relies heavily on In re Dependency of T.L.G.. 126 Wn. App. 181, 108
P.3d 156 (2005). Torrescano claims that, like the parents in T.L.G.. she is willing to
participate in additional services and therefore the court erred when it found that
additional services would be futile. In T.L.G., we held that the State failed to offer or
provide all necessary services in part because "parental deficiencies were not identified,
no treatment services were offered, and there [was] no finding [that] they would have
been unable to benefit." T.L.G.. 126 Wn. App. at 203. Here, by contrast, the State did
identify Torrescano's parental deficiencies and provided initial treatment services.
Unlike in T.L.G., the trial court here entered a finding that Torrescano was unable to
benefit from additional services. As discussed above, substantial evidence supports
that finding. The State satisfied the requirements of RCW 13.34.180(1 )(d).
Likelihood Torrescano's Deficiencies Could Be Remedied
Next, Torrescano contends that the State failed to prove that "there is little
likelihood that conditions will be remedied so that the child can be returned to the parent
in the near future." RCW 13.34.180(1 )(e). For reasons similar to those discussed
above, we conclude the State met its burden here.
Torrescano claims that although Dr. Morgan and Sarah Cope testified that
additional services would take a long period of time before remedying her parental
deficiencies, they did not specify an amount of time. But under RCW 13.34.180(1 )(e),
whether a parent's deficiencies could be remedied in the near future must be
considered from the child's perspective. See In re Welfare of Hall. 99 Wn.2d 842, 851,
664 P.2d 1245 (1983). In a termination proceeding, "what constitutes 'near future'
-21-
No. 72656-1-1/22
depends on the child's age and the placement circumstances." In re Welfare of T.B.,
150 Wn. App. 599, 609-610, 209 P.3d 497 (2009).
Here, the State demonstrated that Torrescano's deficiencies could not be
remedied in the near future. As discussed above, testimony at trial demonstrated that
additional services would be ineffective due to Torrescano's denial of any wrongdoing.
C.T.'s placement circumstances support the trial court's conclusion that Torrescano's
deficiencies could not be remedied in the near future. C.T. has been living in foster care
since September 2012. Testimony at trial from therapists, the GAL, and from C.T.
demonstrate that C.T. adjusted well in his foster care placement. He feels happy and
safe with his foster parents and wants to be adopted by them. He remains afraid of his
mother, and this fear caused anxiety and nightmares throughout Torrescano's criminal
proceedings and dependency proceedings. Multiple witnesses testified that C.T. still
experiences anxiety because he does not know whether he will be adopted. C.T.'s
therapists agreed that achieving permanence was in C.T.'s best interests. Even if
treatment would be effective for Torrescano, the record supports the trial court's finding
that it would not remedy her deficiencies in the near future, particularly in light of C.T.'s
placement circumstances. See, e.g.. Hall. 99 Wn.2d at 851 ("Three months may not be
a long time for an adult decisionmaker. For a young child it may be forever.'" (quoting
Joseph Goldstein, Anna Freud, & Albert J. Solnit, Beyond the Best Interests of
the Child 43 n.* (1973))). We conclude that the State satisfied RCW 13.34.180(1 )(e).
-22-
No. 72656-1-1/23
The Best Interests of CT.
Finally, Torrescano argues that the trial court erred when it concluded that
termination of her parental rights was in C.T.'s best interests when the State failed to
establish its burden under RCW 13.34.180(1 )(d) and (1)(e). Because we conclude that
the State satisfied these statutory elements, as discussed above, the trial court did not
err when it concluded that termination of Torrescano's parental rights was in C.T.'s best
interests.
The primary consideration in termination proceedings is the welfare of the child.
In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113(1999). Once a trial
court finds that each element of RCW 13.34.180 has been proven by clear and
convincing evidence, it must then decide, by a preponderance of the evidence, that
termination is in the best interests of the child. RCW 13.34.190. The trial court has
broad discretion in determining the best interests of the child, and its decision is entitled
to great deference on review. In re Welfare of Young. 24 Wn. App. 392, 395, 600 P.2d
1312(1979).
The record supports the trial court's conclusion here. As discussed above,
substantial evidence supports the trial court's finding that further treatment would be
ineffective for Torrescano. Further, even if that treatment could be effective, it would not
remedy her deficiencies in the near future. Given C.T.'s placement circumstances and
continuing emotional trauma regarding his mother's actions, the trial court properly
concluded that termination of Torrescano's parental rights was in C.T.'s best interests.
See, e.g.. In re Dependency of T.R., 108 Wn. App. 149, 167, 29 P.3d 1275 (2001) ("a
court is 'fully justified' in finding termination in the child's best interests rather than
-23-
No. 72656-1-1/24
'leaving [the child] in the limbo of foster care for an indefinite period while [the parent
seeks] to rehabilitate himself.'" (quoting In re Dependency of A.W., 53 Wn. App. 22, 33,
765 P.2d 307 (1988)).
CONCLUSION
For the foregoing reasons, we affirm the trial court's order terminating
Torrescano's parental rights.
WE CONCUR:
^X,J-
-24-