The opinion
Filed
Washington State
Court of Appeals
Division Two
July 26, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Interest of No. 47545-6-II
E.J.W.,
A minor child.
J.W. and S.W.,
Appellants,
v.
STATE OF WASHINGTON; DEPARTMENT
OF SOCIAL AND HEALTH SERVICES
CHILDREN’S ADMINISTRATION, UNPUBLISHED OPINION
Respondents.
Worswick, J. — J.W. and S.W. appeal the juvenile court’s termination of their parental
rights to their son, E.W. Both argue that the juvenile court (1) violated their Fifth Amendment
rights against self-incrimination by basing its termination order on J.W.’s and S.W.’s refusal to
admit they abused their children, (2) abused its discretion by denying J.W.’s and S.W.’s motions
for a protective order, and (3) erred by finding that the Department established the elements of
RCW 13.34.180(1)(f) by clear, cogent, and convincing evidence. We disagree and affirm the
termination order.
FACTS
I. BACKGROUND
E.W. is the biological child of J.W. and S.W. and the youngest of six children. S.W. had
two adopted twins and one biological child from a previous marriage. J.W. had two biological
No. 47545-6-II
children from a previous marriage. All of the children resided with J.W. and S.W. prior to being
removed from their care in October 2011. The children were removed from the care of J.W. and
S.W. after law enforcement intervened due to concerns of abuse and neglect of S.W.’s adopted
twins. E.W. was four years old at the time he was removed from his parents’ care.
Child Protective Services (CPS) investigative social workers inspected the family home
on October 7, 2011. During the investigation, both parents referred to the adopted twins as
“monsters.” Clerk’s Papers (CP) at 318. The adopted twins were thin and pale, and appeared
malnourished. The refrigerator and pantry were locked and a surveillance system had been
installed inside the home. The bedroom of the adopted twins was filthy, unsanitary, and lacking
electricity. The door handle inside the bedroom had been removed and a sliding lock had been
installed on the hallway side of the door. The social workers observed a hole in the wall between
two of the bedrooms, which the younger children used to pass food to the twins. The social
workers were told that the twins were disciplined with a 2”x 4” board. The board was later
located and noted to have blood on it.
When CPS social workers first investigated the house, E.W. appeared healthy and
chubby. The social workers expressed concern that E.W. was a victim of emotional abuse as a
result of witnessing the physical abuse in the home, and they worried that E.W.’s young age
would make him a vulnerable target once the other children were removed from the home.
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No. 47545-6-II
The State, through the Department of Social and Health Services (Department) filed a
petition on October 12, 2011, and E.W. was found dependent on October 4, 2012. Disposition
orders as to both parents were entered on October 31, 2012.1
In February 2013, S.W. was convicted of four counts of second degree assault—domestic
violence and one count of unlawful imprisonment—domestic violence, all arising out of S.W.’s
acts involving the twins. Similarly, in February 2013, J.W. was convicted of five counts of
second degree assault—domestic violence, one count of third degree assault of a child—
domestic violence, and one count of unlawful imprisonment—domestic violence.2 Both parents
were sentenced to approximately 20 years of incarceration. At the time of the termination trial,
both parents’ convictions had been affirmed by this court and remanded for resentencing. S.W.
and J.W. indicated an intent to file petitions for review to our Supreme Court, seeking review of
their criminal convictions.
After entering foster care, E.W. was referred to individual counseling with Tracey
LeBlanc. LeBlanc served as E.W.’s therapist from December 2011 to March 2013. According
to LeBlanc, E.W. exhibited ambivalence about wanting to see his parents and cognitive
disassociation when stressed. E.W. engaged in repetitive trauma play that centered on food,
1
In separate actions, S.W. relinquished her rights to the adopted twins and her biological son,
and J.W. relinquished his rights to his two biological sons.
2
The juvenile court noted:
This court is not relying on those convictions as a basis for termination of parental
rights. It is a factor to be considered when determining the parents’ present views
and attitudes when assessing the likelihood that conditions will be remedied in the
near future so that the parents could safely visit and parent this child while
incarcerated.
CP at 323.
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No. 47545-6-II
saving smaller animals from bigger animals, and punishment. LeBlanc diagnosed E.W. with
posttraumatic stress disorder (PTSD). During his sessions with LeBlanc, E.W. expressed fear of
his father, reported that he heard the twins being hit with a board, and stated the twins were not
fed enough food or were fed moldy food. E.W. exhibited outbursts, defiance, physical
aggression, bullying toward young children and pets, and destruction of other’s property.
LeBlanc further stated that E.W. had slowly improved as his feelings of safety and sense of
belonging increased, at the time of the termination trial, some of E.W.’s extreme behaviors had
subsided; he was seeking comfort from others and allowing others to comfort him.
E.W. was originally placed in a foster home, and in March 2013, E.W. was placed in the
care of his maternal aunt and uncle in Illinois. However, E.W. returned to Washington foster
care in November 2013 due to E.W.’s disruptive behaviors and the lack of services in Illinois.
E.W.’s paternal grandparents sought to be a placement, but withdrew their request after assessing
how J.W. and S.W. interacted with others involved in the case. E.W.’s maternal grandparents
also requested to be a placement, but their requests were denied. The social workers stated that
in order to continue his improvement, E.W. needed stability and permanence, and needed to
settle into a home, be able to experience emotions, and have the opportunity to have positive
sibling relationships.
II. SERVICES
Both J.W. and S.W. were ordered to complete psychological evaluations, mental health
evaluations, domestic violence evaluations, and anger management assessments. Initially, the
parents declined to engage in the psychological evaluations upon advice of counsel due to their
pending criminal charges and trial. Over the course of the dependency, the Department offered
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No. 47545-6-II
the following services: referral for mental health assessment and recommended treatment,
referral for psychological evaluation and recommended treatment, and a referral for anger
management evaluation and treatment.
Social worker Shelley Arneson attempted many meetings with J.W. and S.W. after E.W.
was removed from the home. She described these meetings as unproductive, largely because
J.W. and S.W. were focused on a conspiracy theory involving both J.W.’s and S.W.’s ex-spouses
and the four older children. Arneson identified three parental deficiencies in both J.W. and S.W.
First, they had poor parenting skills which included inappropriate discipline and a poor
understanding of a teenager’s nutritional, emotional, and therapeutic needs. Second, they
engaged in domestic violence that included poorly managed anger management with episodes of
rage directed at the children, and setting up dysfunctional power dynamics between the siblings
that involved having some children spy on and report wrongdoing of others to the parents so that
physical punishment and emotional degradation would occur in front of siblings. And third, they
had untreated mental health issues where they both exhibited a lack of empathy for their
children, limited insight into their own behavior, and limited understanding of the needs of
others.
According to Arneson, neither parent could safely parent a child. Arneson did not refer
J.W. and S.W. to traditional parent education programs because she felt that the parents had not
demonstrated sufficient insight into any issues that lead to the removal of their children and,
therefore, would likely not benefit from the course work.
In February 2012, the Department referred the parents to Sound Family Solutions LLC
for family therapy sessions, but the referral was denied due to Medicaid funding rules and
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No. 47545-6-II
because the treatment provider determined that the parents needed to be closer to reunification
with E.W. Also in February 2012, Arneson made a referral to Children’s Home Society of
Washington for individual counseling. Due to the parent’s incomes and assets, Children’s Home
Society required payment based on a sliding scale, but the parents informed the Department that
they could not afford to participate.
In April 2012, Arneson made a referral to Northwest Family Psychology where providers
could work individually with the parents. J.W. and S.W. went to all six sessions. J.W. and S.W.
demonstrated an understanding of how to interact with E.W. if visitation was approved, but
failed to identify any issues in the family home that led to their children’s removal.
Arneson testified that E.W.’s visitation with his parents would be a barrier to establishing
healthy relationships between E.W. and his siblings and could be a barrier to E.W.’s own healthy
emotional development. The juvenile court ordered that one visit with S.W. could occur prior to
S.W.’s criminal trial. On August 16, 2012, S.W. and E.W. met in a therapeutic setting for
approximately one half hour. E.W. greeted S.W. by first name when he saw her and was happy
to see her. S.W. engaged in appropriate play with E.W., refrained from discussing the case with
him, and ended the visit on a positive note.
After the visit, E.W. exhibited increased anxiety, behavioral changes, and increased
repetitive trauma play. E.W. expressed how seeing his mom broke his heart and that he loves his
parents but is also afraid of both his parents. According to Arneson, the Department did not
support visitation with the parents due to E.W.’s PTSD and anxiety. Both LeBlanc and Arneson
expressed concern that neither J.W. nor S.W. could validate what E.W. claims to have witnessed
in the home and thus would be unable to validate his feelings.
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No. 47545-6-II
The juvenile court allowed J.W. and S.W. to send cards and letters to E.W. once a month.
The letters were sent to the social worker, who then forwarded the correspondence to E.W.’s
therapist, who determined if the content was appropriate and if E.W. was emotionally stable
enough to receive the information. S.W. sent many letters. E.W. wrote to S.W. once in July
2014. J.W. also sent a few letters to E.W., but none of his letters were read to E.W. because
E.W.’s therapist did not believe E.W. was emotionally stable enough to hear from his father.
A. S.W.
S.W. completed a psychological evaluation with Dr. Zenger in December 2012. S.W.
monopolized the conversation with Dr. Zenger, focusing on her accomplishments and how she
was a victim of family members and her ex-husband. S.W. conveyed conspiracy theories about
how hers and J.W.’s ex-spouses and the older children were lying to hurt her. S.W. claimed she
had no personal problems, and she showed a grandiose sense of self and a sense of entitlement.
S.W. failed to identify any parenting or personal weaknesses. S.W. spoke positively of E.W. but
described the other five children very negatively.
Dr. Zenger opined that S.W. was a significant risk to parent a child. According to Dr.
Zenger, such a consistent and focused negative attitude about a child is a risk factor for
maltreatment of children, and that for a child to feel safe and nurtured, a parent should avoid
such intense negative criticism. According to Dr. Zenger, S.W. lacks insight and empathy,
which are needed to function as a parent. And a parent who lacks empathy, does not take
responsibility, and needs excessive admiration, is often resistant to change and would require
intense long-term counseling. Such counseling would only be effective if the parent could
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No. 47545-6-II
identify personal problem areas and take some responsibility for the maltreatment or negligent
treatment that she has subjected her child to.
B. J.W.
J.W. completed a psychological evaluation with Dr. Poppleton in January 2013. J.W.
also discussed conspiracy theories involving his and S.W.’s ex-spouses and the four older
children. He denied all allegations about the condition of the home and his treatment of the
children. He viewed his older biological children as having wronged him and attributed all the
problems in his home to the twins. J.W. was intent on trying to get the opportunity to tell E.W.
his version of the truth, and was unable to identify any issues that brought his family into the
court system or find ways to remediate any parenting deficiencies so that he could safely parent
E.W. and meet E.W.’s developmental needs.
Dr. Poppleton opined that J.W. cannot safely parent a child. According to Dr. Poppleton,
J.W. needs acceptance, does not like to be confronted, and does not respond appropriately to
anger. J.W. has a history of using corporal punishment, and he lacks impulse control, blames
others, and lacks empathy. It was Dr. Poppleton’s opinion that without a change in the
orientation of his viewpoints and inability to take responsibility for why the children were
removed from the home, J.W.’s future ability to safely parent was minimal.
III. TERMINATION TRIAL
An amended petition for termination as to both parents was filed on December 3, 2014.
After this court affirmed their convictions and remanded the case for resentencing, J.W. and
S.W. moved the juvenile court for a continuance on the basis that their criminal cases were
ongoing because their resentencing hearings had not been completed and they intended to file
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No. 47545-6-II
petitions for review in our Supreme Court. J.W. and S.W. requested, in the alternative, that the
juvenile court enter a protective order barring the State from using any testimony by J.W. or
S.W. in any future criminal proceedings. The juvenile court applied the Olympic Pipeline
Company3 factors and denied the motions, explaining:
Given the fact that they both testified in the criminal proceeding, the fact that they
have been convicted, the fact that there’s a strong statutory interest in proceeding
forward with the trial and establishing some degree of finality on the decision
regarding [E.W.], the fact that the cases are not identical, there’s some overlap
factually, but the nature of the cases is fundamentally different, even though there,
again, may be some factual overlap, the Court’s inclination will be to deny the
motion for the continuance.
At this time, I’m going to deny the motion for the protective order, but I
will take that up on a break time to look at it again. So I’m going to deny it at this
time without prejudice, but I’ll look at it in some more detail when we take a break.
Verbatim Report of Proceedings (VRP) (March 9, 2015 AM) at 12-13.
The next day, J.W. and S.W. renewed their motion to continue, reiterating their concern
that they’d be forced to make a choice either to not testify at the termination trial and preserve
their Fifth Amendment rights, or to testify and have the State use their testimony against them in
their criminal case if they won their appeals and received a new trial. Again, the juvenile court
denied their motion, concluding that J.W.’s and S.W.’s rights were not being violated and noting
that proceeding with the termination trial was in E.W.’s interest.
The Department’s witnesses testified as described above. The juvenile court found
Arneson, LeBlanc, Dr. Zenger and Dr. Poppleton to be credible and persuasive. The Department
did not call either J.W. or S.W. as witnesses in its case in chief. Rather, both J.W. and S.W.
elected to testify on their own behalf. S.W. asserted her Fifth Amendment right nine times
3
King v. Olympic Pipeline Company, 104 Wn. App. 338, 348, 16 P.3d 45 (2000).
9
No. 47545-6-II
during her testimony. J.W. asserted his Fifth Amendment right six times during his testimony.
Both parents asked the court not to terminate their parental rights.
S.W. described the 10 classes and programs she had been able to engage in while
incarcerated and indicated an intent to begin more programs. She testified: “I’m normal. I have
no mental health issues,” and identified her deficiencies as having low self-esteem, feelings of
abandonment, correcting any negative talk within her brain, and coping with being yelled at as a
child. S.W. appeared unable to identify ways in which she could have approached her care for
her children differently and did not identify any risks that J.W. posed. Her only
acknowledgement as to anger was that she would no longer implode and could now better handle
the verbal abuse by her brother, and verbal, physical, and sexual abuse by her ex-husband. S.W.
identified herself as a victim and failed to see that any of her children had been victims in her
home.
J.W. described the services he engaged in while in prison. He attended seven individual
counseling classes for anxiety and stress related to treatment that he received while in prison, and
he attended six other programs. J.W. focused on his grief and loss, and blamed his and S.W.’s
ex-spouses for the chaos in his home. J.W. could not identify any past choices with respect to
his children that he would make differently other than wishing he had a better psychological
background to deal with high needs children. When asked how he would respond to E.W. when
E.W. discussed hearing children cry, hearing children being punished, and helping the twins who
he thought were starving, J.W. responded that none of that happened.
On April 2, 2015, the juvenile court entered an order terminating the parental rights of
both S.W. and J.W. to E.W. The court made detailed findings of fact. Based on its findings, the
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No. 47545-6-II
court concluded that the elements of RCW 13.34.180(1)(a) through (f) had been established by
clear, cogent, and convincing evidence. The court further concluded that the Department
established by clear, cogent, and convincing evidence that the parents could not maintain a
meaningful role in E.W.’s life, it was in the best interests of E.W. to terminate the parents’ rights,
and no other options such as guardianship were available as provided in RCW 13.34.180(5). The
court also concluded that the Department established by clear, cogent, and convincing evidence
that the Department made reasonable efforts and barriers exist to prevent reunification as
provided in RCW 13.34.145(5)(b). The court also concluded that the Department established
that the mother and father were unfit and unable to parent, and that termination of the mother and
father’s parental rights were in E.W.’s best interest.
J.W. and S.W. appeal.
ANALYSIS
The juvenile court may order termination of a parent’s rights as to his or her child if the
Department establishes the six elements in RCW 13.34.180(1)(a) through (f) by clear, cogent,
and convincing evidence. Clear, cogent and convincing evidence exists when the ultimate fact in
issue is shown to be highly probable. In re the Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d
831 (1973). The Department must also prove by a preponderance of the evidence that
termination of parental rights is in the child’s best interests. RCW 13.34.190(1)(b).
Because the juvenile court has the advantage of observing the witnesses, deference to the
court is particularly important in termination proceedings. In re the Welfare of Aschauer, 93
Wn.2d 689, 695, 611 P.2d 1245 (1980); In re Dependency of K.R., 128 Wn.2d 129, 144, 904
P.2d 1132 (1995). “Where the trial court has weighed the evidence, review is limited to
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No. 47545-6-II
ascertaining whether the findings of fact are supported by substantial evidence, and if so,
whether the findings support the conclusions of law and the judgment.” In re Dependency of
P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). “‘Substantial evidence’ is evidence in sufficient
quantity to persuade a fair-minded, rational person of the truth of the declared premise.” In re
Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009). Where, as here, the proof
required is clear and convincing, “the question on appeal is whether there is substantial evidence
to support the findings in light of the highly probable test.” P.D., 58 Wn. App. at 25. Moreover,
we defer to the juvenile court’s credibility determinations when reviewing an order terminating
parental rights. T.B., 150 Wn. App. at 607.
I. FIFTH AMENDMENT
J.W. and S.W. argue that their Fifth Amendment rights were violated when the juvenile
court terminated their parental rights “based in large part on the parents’ failure to admit abusing
their children.”4 Br. of Appellant (J.W.) at 219. We disagree.
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. Similarly, the Washington
Constitution provides, “No person shall be compelled in any criminal case to give evidence
against himself.” Wash. Const. art. I, § 9. The availability of the Fifth Amendment privilege
does not turn on the type of proceeding in which its protection is invoked, but upon the nature of
4
J.W. and S.W.’s argument requires us to either determine or assume that the trial court’s
decision was in fact “based in large part on the parents’ failure to admit abusing their children.”
Br. of Appellant (J.W.) at 21. We do not evaluate the weight the trial court gave to its respective
findings. Rather, we defer to the trial court’s evaluation of the persuasiveness of the evidence.
In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
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No. 47545-6-II
the statement or admission and the exposure it invites. State v. King, 130 Wn.2d 517, 524, 925
P.2d 606 (1996).
The privilege against self-incrimination 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. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d
274 (1973). One whose conviction is on appeal has a continuing right to claim a Fifth
Amendment privilege. State v. Dictado, 102 Wn.2d 277, 287, 687 P.2d 172 (1984). Generally,
if a person desires not to incriminate himself or herself, he or she must invoke the protection of
the Fifth Amendment privilege against self-incrimination rather than answer. State v. Post, 118
Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992).
At trial, J.W. and S.W. invoked the Fifth Amendment a handful of times during cross-
examination. However, nothing in the record supports J.W.’s and S.W.’s claims that the juvenile
court based its termination decision on J.W.’s and S.W.’s invocation of their Fifth Amendment
right. J.W. and S.W. rely on In re Welfare of J.G.W., 433 N.W.2d 885 (Minn. 1989) and In re
Dependency of J.R.U.-S., 126 Wn. App. 786, 110 P.3d 773 (2005), to support their position,
however those cases are factually distinguishable. Here the juvenile court neither “require[d] the
parent[s] to admit guilt as a part of a court-ordered treatment plan” as described in J.G.W., 433
N.W.2d at 886, nor made “an express threat to file a termination petition if the parent[s] invoked
the [Fifth Amendment] privilege,” as described in J.R.U.-S., 126 Wn. App. at 795. Rather, the
juvenile court’s findings of fact regarding J.W.’s and S.W.’s testimony are substantially
supported by J.W.’s and S.W.’s affirmative answers on the record.
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No. 47545-6-II
Volunteered statements are not barred by the Fifth Amendment. State v. King, 78 Wn.
App. 391, 399, 897 P.2d 380 (1995). J.W. and S.W. testified at trial and participated in
evaluations with experts; they voluntarily made statements about themselves, their parenting
abilities, and their home. At no point were J.W. or S.W. compelled to respond in any particular
manner, or to respond at all. The record clearly shows that J.W. and S.W. were aware of their
Fifth Amendment right to not answer questions; the court’s reliance on J.W.’s and S.W.’s
affirmative, voluntary statements was proper.
Following cross-examination, the juvenile court asked S.W. a series of questions and
specifically asked why she believed the Department was bringing the termination proceeding.
S.W.’s response was that the social workers had been hostile towards her from day one and no
one ever asked for her side of the story. When J.W. was asked if he thought E.W. was impacted
by anything he saw or heard in the home, J.W. responded, “Well, according to the multiple
reports I’ve been hearing, he seems to think so.” VRP (March 12, 2015 PM) at 894. The
Department followed up, “Do you believe that?” J.W. responded, “No.” VRP (March 12, 2015
PM) at 894. When asked about Dr. Poppleton’s testimony that J.W. lacked empathy and insight,
J.W. responded, “I don’t know where he’s getting that from.” VRP (March 12, 2015 PM) at 892.
The Department asked J.W. about E.W.’s descriptions of his home life:
[Department]: So you didn’t understand that there were concerns about [E.W.]’s
fear of you?
[J.W.]: That is correct.
[Department]: Would you—if—now that you’ve heard all of this over the last
few days, now do you understand some of [E.W.]’s fear of you?
[J.W.]: I understand his—that—his fear of me, yes.
[Department]: And what do you understand that fear to be based on?
[J.W.]: His beliefs somehow.
[Department]: But you don’t believe that he’s correct in his beliefs; is that right?
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No. 47545-6-II
[J.W.]: It was my life and he was my son, and I know what went on in the
house. I don’t understand how he could have witnessed these things.
[Department]: Because you’re saying that none of those things happened?
[J.W.]: Correct.
VRP (March 12, 2015 PM) at 895. J.W.’s and S.W.’s affirmative testimonies support the juvenile
court’s findings.
Furthermore, “[i]t is well settled that in civil litigation the exercise by a party of his or her
Fifth Amendment privilege does not protect the invoking party from adverse inferences that may
logically be drawn from its exercise.” Diaz v. Washington State Migrant Council, 165 Wn. App.
59, 85, 265 P.3d 956 (2011). Any inferences drawn from J.W.’s and S.W.’s exercise of their
right to remain silent were consistent with the rest of the evidence presented by the various
experts and witnesses proving J.W.’s and S.W.’s inability to identify any parental deficiencies.
Neither their arguments, nor the record, support J.W.’s and S.W.’s contention that their
parental rights were terminated because they invoked their Fifth Amendment right against self-
incrimination. Rather, the juvenile court terminated J.W.’s and S.W.’s parental rights because
they were unable to acknowledge any parental deficiencies; a conclusion supported by their
voluntary statements. Accordingly, J.W and S.W’s claim that the juvenile court violated their
Fifth Amendment rights fails.
II. PROTECTIVE ORDERS
J.W. and S.W. argue that the juvenile court erred by denying their motions for protective
orders barring the State from using their testimony in any future criminal case.5 We disagree.
5
Because the protective order was not the focus of J.W.’s and S.W.’s motions below, the record
on this issue is relatively underdeveloped. The juvenile court denied the motion without
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No. 47545-6-II
We review a court’s determination on a motion to grant a protective order for abuse of
discretion. Olympic Pipeline Co., 104 Wn. App. at 348. A trial court abuses its discretion only
if no reasonable person would have taken the view adopted by the trial court. Olver v. Fowler,
161 Wn.2d 655, 664, 168 P.3d 348 (2007).
J.W. and S.W. did not offer the juvenile court any authority or argument in support of
their motion for protective orders, focusing instead on their motion to continue. Their request for
protective orders were made as an alternative to their motion to continue based on their concerns
that their Fifth Amendment rights would be implicated should they testify without immunity.
We have held that because the Fifth Amendment allows a person not to answer official questions
put to him in a civil proceeding where the answer might incriminate him in future criminal
proceedings, protective orders may be appropriate in some civil dependency cases. In re
Dependency of Q.L.M. v. State, 105 Wn. App. 532, 544, 20 P.3d 465 (2001). However, because
the grant of immunity is normally a prosecutorial function, only in certain limited circumstances
does a court have inherent authority to grant a protective order of immunity. 105 Wn. App. at
544.
Given the lack of authority or argument offered by J.W. and S.W. at trial, a reasonable
person could have agreed with the juvenile court in denying J.W.’s and S.W.’s motion for a
protective order. Therefore, we hold that the juvenile court did not abuse its discretion.
prejudice, noting that he would look at it in more detail during a break. The issue was never
brought up again.
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No. 47545-6-II
III. RCW 13.34.180(1)(f) AND 13.34.145(5)(b)
J.W. and S.W. also argue that the juvenile court erred by concluding that the Department
met its burden under RCW 13.34.180(1)(f) in light of the factors enumerated at RCW
13.34.145(5)(b).6 Particularly, J.W. and S.W. argue that the Department failed to make
reasonable efforts to keep the family together by failing to (1) provide visitation particular to the
needs of J.W. and S.W., (2) coordinate services for J.W. and S.W. while they were incarcerated,
and (3) adequately investigate an alternative placement for E.W. where S.W. and J.W. could
maintain a bond with him. We disagree.
RCW 13.34.180(1)(f) requires that before a juvenile court terminates an incarcerated
person’s parental rights under RCW 13.34.180(1), the Department must prove by clear, cogent
and convincing evidence, and the court shall consider (1) whether the parent maintains “a
meaningful role in the child’s life based on factors identified in RCW 13.34.145(5)(b),” (2)
whether the Department made “reasonable efforts” as defined in the statute, and (3) whether
“particular barriers” described in RCW 13.34.145(5)(b) impeded the parent from “accessing
visitation or other meaningful contact with the child.” RCW 13.34.180(1)(f).
The juvenile court’s resolution of the RCW 13.34.180(1)(f) factors must be informed by
evidence presented and conclusions reached regarding the six factors contained in RCW
13.34.145(5)(b). In re Dependency of A.M.M., 182 Wn. App. 776, 787, 332 P.3d 500 (2014).
These factors include:
(i) The parent’s expressions or acts of manifesting concern for the child,
such as letters, telephone calls, visits, and other forms of communication with the
child;
6
On October 22, 2015, J.W. motioned this court to adopt S.W.’s argument on this issue. This
court granted his motion on October 27, 2015.
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No. 47545-6-II
(ii) The parent’s efforts to communicate and work with the department or
supervising agency or other individuals for the purpose of complying with the
service plan and repairing, maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of the
department or the supervising agency;
(iv) Information provided by individuals or agencies in a reasonable
position to assist the court in making this assessment, including but not limited to
the parent’s attorney, correctional and mental health personnel, or other individuals
providing services to the parent;
(v) Limitations in the parent’s access to family support programs,
therapeutic services, and visiting opportunities, restrictions to telephone and mail
services, inability to participate in foster care planning meetings, and difficulty
accessing lawyers and participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the child’s life is in
the child’s best interest.
RCW 13.34.145(5)(b). These incarceration factors are meant to require juvenile courts to
consider whether an incarcerated parent could maintain a meaningful role in the child’s life and
to require the Department to make reasonable efforts to help the incarcerated person remedy
parental deficiencies. In re Termination of M.J., 187 Wn. App. 399, 408, 348 P.3d 1265 (2015).
“A consideration of evidence ultimately means a weighing or balancing of facts, along
with a resolution of that weighing. In many instances, particularly where the evidence is
uncontested or the [Department]’s case is very strong, the court’s conclusion will need no further
explication.” 187 Wn. App. at 409 (internal quotation marks omitted).
A. Visitation
RCW 13.34.180 does not require the Department provide visitation. 187 Wn. App. at
412. Rather, the Department has an obligation to consider what it can do to preserve the family
unit. To that end, visitation may be necessary unless it is not in the best interest of the child. 187
Wn. App. at 412. Thus, while visitation will frequently be part of the services the Department
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No. 47545-6-II
must provide an incarcerated parent, it is not an absolute obligation in all cases. 187 Wn. App. at
412.
Here, the Department offered abundant evidence as to why visitation was limited because
it was not in the best interest of E.W. The Department, the CASA guardian ad litem, and E.W.’s
therapists all opposed any form of visitation during the dependency. Arneson testified that the
Department did not support visitation with the parents based on the therapist’s recommendations
due to E.W.’s PTSD and anxiety, continued disclosures in therapy about witnessing or hearing
abuse and neglect of the older siblings in his parents’ home, disassociation after disclosing
events or being in chaotic situations, fear of his father and his father’s temper, and difficulty of
reconciling the kindness he received from his mother versus how the other children were treated
in the family home. The juvenile court noted that following the lone visit between E.W. and
S.W. during the dependency, E.W. had an increase in anxiety, more behavioral challenges, and
an increase in repetitive trauma play.
“Where it is not in the best interests of the child, visitation should not be forced upon the
child.” 187 Wn. App. at 413. Given the particular needs of E.W., the juvenile court did not err
in its evaluation of the Department’s efforts to arrange visitation between E.W. and his parents.
B. Services
The juvenile court made an express written finding that services “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.” J.W. and S.W. offer no argument or evidence showing this
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No. 47545-6-II
finding was not supported by substantial evidence. Rather, the record shows that social worker
Arneson facilitated numerous referrals to programs and services for the parents.
Furthermore, the Department need not offer services when a parent is unable to benefit
from the services. In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011). Even
when the Department “inexcusably fails” to offer services to a willing parent, termination will
still be deemed appropriate if the services would not remedy the parent’s deficiencies in the
foreseeable future, which depends on the age of the child. In re Dependency of T.R., 108 Wn.
App. 149, 164, 29 P.3d 1275 (2001). When the record establishes that the offer of services
would be futile, the juvenile court can find that the Department offered all reasonable services.
In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008).
Here, the juvenile court found that S.W. and J.W. had “not responded positively to any
issues identified by the Department or by treatment providers; and, thus, have not been able to
make any progress in services that would assist them in acknowledging and correcting their
deficiencies.” CP at 329. The court acknowledged that the types of services available in prison
are not necessarily geared towards the intense services needed by S.W. and J.W., but found that
there were some services which could have some therapeutic effect if S.W. and J.W.
demonstrated any indication of insight and took some responsibility for the trauma inflicted on
their children. The juvenile court did not err by concluding that the Department lived up to its
statutory duty to provide reasonable services.
C. Alternative Placement
The uncontested findings show that the Department made reasonable efforts to consider a
permanent placement that would allow J.W. and S.W. to maintain a relationship with E.W. The
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No. 47545-6-II
juvenile court expressly found the “Department considered other family members as permanent
placement option [sic]; so that the child could maintain some attachment to family of origin.”
CP at 328. S.W. and J.W. neither challenge this finding nor offer any argument or evidence
supporting their contention. For these reasons, we hold that the juvenile court properly
concluded that the Department met its burden under RCW 13.34.180(1)(f) in light of the factors
enumerated at RCW 13.34.145(5)(b).
CONCLUSION
In conclusion, we hold that the juvenile court did not enter its order terminating J.W.’s
and S.W.’s parental rights to E.W. in violation of their Fifth Amendment rights, the juvenile
court did not abuse its discretion by denying J.W.’s and S.W.’s motion for protective orders, and
the juvenile court did not err in concluding that the Department met its burden under RCW
13.34.180(1)(f). For these reasons, we affirm the juvenile court’s termination of J.W.’s and
S.W.’s parental rights to E.W.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Lee, J.
21