(Cite as: 2003 WL 289430 (Wash.App. Div. 1))

Court of Appeals of Washington,

Division 1.

In re the Dependency of {E.C.} {B.C.}, Minor Children.

STATE of Washington, Department of Social and Health Services, Respondent,

v.

Brian CAMERON, Appellant.

Nos. 50618-8-I, 50619-6-I.

Feb. 10, 2003.

Appeal from Superior Court of King County Docket; Hon. Helen Halpert.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Mary F. Li, Assistant Attorney General--Social & Health Services, Seattle, WA, for Respondent.

Lori L. Irwin, Attorney At Law, Seattle, WA, for Guardian Ad Litem.

Nielsen Broman Koch Pllc, Seattle, WA, for Other Parties.

UNPUBLISHED OPINION

PER CURIAM.

*1 Brian Cameron appeals the trial court's order terminating his parental rights over E.C., his eleven-year-old-daughter, and B.C., his five-year-old son, contending that the State failed to prove the statutory elements for termination set forth in RCW 13.34.180(1)(e) through (f) and RCW 13.34.190, or the requirements of the Indian Child Welfare Act (ICWA). Because the State met its burden of proof under both statutes, we affirm.

FACTS

E.C. was born on March 13, 1991, and her brother, B.C., was born on February 21, 1997, to Helen Feyko and Brian Cameron. [FN1] Cameron and Feyko raised the children together until sometime in 1998, when Feyko, an alcoholic, moved out of the house and began living on the streets. Thereafter, Cameron raised the children on his own. Because Feyko is an enrolled member of a federally recognized Indian tribe, the children are subject to the ICWA.

FN1. Although Feyko was a party to the proceedings below, the order terminating her parental rights was affirmed by a court of appeals commissioner in a separate order. Therefore, the facts will primarily focus on Cameron's case.

In January 2000, two juvenile friends of E.C. reported an incident of inappropriate sexual conduct by Cameron. According to the report, Cameron, who was intoxicated, exposed himself to the girls, invited them to touch him, and masturbated. Eventually, E.C. wrote on Cameron's penis. Cameron was jailed on indecent liberties and child molestation charges, and E.C. and B.C. were removed from his care.

The Department of Social and Health Services (DSHS) filed dependency petitions as to both parents shortly after Cameron's arrest. In addition to the above facts, the petition alleged that the mother was homeless, a late-stage alcoholic, and had been out of the children's lives for over two years. It also alleged that the father was an alcoholic and that there had been previous reports of him neglecting the children, and referred to a claim by Cameron's sister that he had sexually molested her years before. Cameron later pleaded guilty to indecent exposure and was jailed until April 1, 2000. Agreed dependency orders were entered on April 4. Although denying any misconduct, Cameron stipulated that the State could prove the allegations set forth in the dependency petition. A dispositional order was entered for Cameron, requiring prior approval from E.C.'s therapist before Cameron could have any contact with her. It also required Cameron to participate in a sexual deviancy evaluation and follow through with all recommended treatment, participate in drug and alcohol evaluation and follow through with recommended treatment, enroll in parenting classes, and establish and maintain a stable, substance free, and safe living environment.

Shortly afterward, Cameron began regular supervised visits with B .C., but he had no visits with E.C. because her therapist recommended she not have contact with her father, at least until he began sexual deviancy treatment. Visits with B.C continued until the spring of 2001, when they were terminated at the recommendation of Jacquelyn Rainier, B.C.'s therapist. B.C. had been displaying disturbingly violent behavior, which Rainier attributed to the visits with his father. Rainier was also concerned that Cameron had made little progress in treatment.

*2 In July 2000, certified sex offender treatment provider Susan Moores evaluated Cameron. She concluded that Cameron had a sexual deviancy problem and posed a risk of re-offending. Cameron was in denial about his problem, blaming his vctims for the conviction. Moores recommended intensive group and individual sexual deviancy treatment. At the time, Moores would not treat Cameron because he could not pay.

Although Cameron was referred to at least three providers, for unknown reasons, he did not enroll in treatment until several months after his evaluation. According to Cameron, he was having difficulty finding a provider because he could not pay. In January and March 2001, the dependency court ordered DSHS to refer Cameron to low cost treatment resources.

It is not clear what steps DSHS took to comply with these orders, but Cameron eventually found work and in May 2001, he enrolled in treatment with Susan Moores. As part of treatment, Moores established a strict set of rules, one of which prohibited Cameron from having unsupervised contact with children and to avoid areas, such as parks, where children congregated. On August 29, 2001, Moores terminated Cameron from the program because he had broken the rules by moving next to a park. Moores was also concerned over reports that Cameron had been discharged from his job and issued a trespass notice from the premise due to a report of inappropriate communication with a child there. Moores noted that Cameron still displayed a high level of denial, even after months of treatment, and she felt he was lying when he claimed to be unaware of her rules. He had made no progress in treatment.

On September 13, 2001, DSHS petitioned the court to terminate both parents' rights. Around that time, Moores referred Cameron to one other treatment provider while Maybelle Ocampo, the DSHS caseworker assigned to Cameron, referred him to threeothers. Cameron did not enroll in treatment with any of these individuals. In February 2002, Ocampo provided Cameron the names of nine other treatment providers. By the spring of 2002, Cameron had not found another treatment provider.

A termination trial as to both parents was held in late May 2002. At the trial, the State presented evidence that both parents were homeless, with the mother continuing to live on the streets and the father residing in a shelter. Cameron had completed drug and alcohol treatment and was enrolled in parenting classes. He had not seen E.C. since his arrest because he had failed to enroll or make progress in sexual deviancy treatment. He had not seen B.C. in the past year, since visits were terminated.

Rainier, who was the therapist for both children, testified that B.C. was a special needs child who displayed severe behavioral problems, particularly at the beginning of the dependency and after visits with Cameron. B.C. had a very low IQ, was delayed in his speech ability, and probably suffered from fetal alcohol effect. E.C. was having problems in school and she had displayed behavioral problems while in foster care. Rainier felt that E.C. probably suffered from anxiety and depression. Rainier concurred with the opinion of E.C.'s prior therapists that E.C. not have contact with Cameron at least until he enrolled in sexual deviance treatment. Rainier felt that termination of both parents' rights was in the children's best interests.

*3 Elizabeth Weldin, the court-appointed special advocate (CASA), also believed that termination was in the children's best interest. Weldin felt that E.C. had been substantially impacted by the uncertainty in her life that the dependency had created. Although he was less aware of his situation, termination was also in B.C.'s best interest as well. She could think of no reasonably available services that could remedy the problem so that the process of reunification could begin.

Maybelle Ocampo, who began as Cameron's caseworker in September 2001, described the various efforts at finding Cameron another therapist after Moores terminated him. Moores provided Cameron the names of three providers during the fall of 2001 and instructed him to contact her if he needed assistance. She never heard from him about the providers. She provided Cameron nine other names in February 2002 and gave him similar instructions. Ocampo was aware that Cameron was financially unstable and might need financial help. She was prepared to request state funds to help Cameron pay for treatment. But before a funding request could be made, Cameron needed to be accepted into a treatment program and the provider's fees clearly identified. Because Cameron never contacted her to indicate he was accepted by a provider, Ocampo could not proceed with the request. Ocampo, who was a social worker specializing in working with tribal members and culture, recommended termination of both Feyko's and Cameron's parental rights. She cited the lengthy period of dependency and the father's failure to complete sexual deviancy treatment as factors relevant to her conclusion.

Cameron testified at trial and indicated that he was unaware of Moores' rules when she terminated him from treatment. Although unsure whether he had a problem, Cameron wanted to enter sexual deviancy treatment. Cameron testified that he contacted each of the treatment providers he was referred to, but none would accept him, apparently because hey did not have room. Cameron felt he could find treatment within six months, and he asked the court to continue the trial to allow him to do this.

At the close of the evidence, the trial court ordered the termination of Cameron's and Feyko's rights over both children, finding that the State met its burden of proving the termination factors set forth in RCW 13.34.180 and .190 and under the ICWA.

DECISION

Termination Factors Under State Law and Indian Child Welfare Act.

Courts have long recognized that a biological parent has a fundamental liberty interest in the care, custody, and control of his or her child. [FN2] But the State also has an obligation to protect the child when a parent's action or inaction endangers a child's physical or emotional welfare. [FN3]

FN2. In re Dependency of A.V.D., 62 Wn.App. 562, 815 P.2d 277 (1991). That fundamental right is not absolute, however. In re Welfare of Young, 24 Wn.App. 392, 600 P.2d 1312 (1979).

FN3. RCW 13.34.020; In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).

To prevail in a petition to terminate parental rights the State must prove the six factors of RCW 13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence. [FN4] In addition, the State must prove by a preponderance of the evidence that termination is in the child's best interests. [FN5] Moreover, the parties agree that the ICWA applies, which provides in part:

FN4. RCW 13.34.180 states in pertinent part:

"(1) A petition seeking termination of a parent and child relationship may be filed in juvenile court by any party to the dependency proceedings concerning that child. Such petition shall conform to the requirements of RCW 13.34.040, shall be served upon the parties as provided in RCW 13.34.070(8), and shall allege all of the following unless subsection (2) or (3) of this section applies:

"(a) That the child has been found to be a dependent child;

"(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

"(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency; "(d) That the 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;

"(e) That there is little likelihood that onditions will be remedied so that the child can be returned to the parent in the near future. A parent's failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors:

"(i) Use of intoxicating or controlled substances so as to render the parent incapable of providing proper care for the child for extended periods of time and documented unwillingness of the parent to receive and complete treatment or documented multiple failed treatment attempts; or

"(ii) Psychological incapacity or mental deficiency of the parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documentation that there is no treatment that can render the parent capable of providing proper care for the child in the near future; and

"(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home."

FN5. RCW 13.34.190.

*4 Any party seeking to effect a foster care placement of, or termination of parental rights to an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. [FN6]

FN6. 25 U.S.C. sec.1912(d). The parties agree that Cameron has standing to invoke the ICWA's requirements even though he is not a tribal member. In re Welfare of M. S.S., 86 Wn.App. 127, 131 n. 1, 936 P.2d 36 (1997); see also, In Interest of H.D., 11 Kan.App.2d 531, 729 P.2d 1234, 1236 (1986)

 Like the state statute, a clear, cogent, and convincing evidence burden of proof applies to the element of 25 U.S.C.1912(d). [FN7] The ICWA further provides:

FN7. In re Dependency of A.M, 106 Wn.App. 123, 134-35, 22 P.3d 828, review denied, 144 Wn.2d 1015 (2001).

No termination of parental rights may be ordered in such proceeding in the absence of a determination supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. [FN8]

FN8. 25 U.S.C. sec.1912(f).

 Cameron challenges only the fourth through sixth factors of the state termination statute and subsections (d) and (f) of the ICWA. He also argues that termination of his parental rights was in neither of the children's best interest. Under both statutes, we must determine whether the juvenile court's findings of fact on the various factors are supported by substantial evidence under the applicable burden of proof. [FN9] We defer to the trial court's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences. [FN10] Deference to the trial court is particularly important in review of termination decisions. [FN11]

FN9. In re Dependency of H.W., 92 Wn.App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998).

FN10. See In re Welfare of Aschauer, 93 Wash.2d 689, 695, 611 P.2d 1245 (1980).

FN11. In re Dependency of K.R., 128 Wash.2d 129, 144, 904 P.2d 1132 (1995).

Services Offered or Provided/Active Efforts at Rehabilitation.

Cameron first argues the evidence was insufficient to show that all necessary and reasonably available services were offered or provided, or, under the corresponding section of the ICWA, that the Department made "active efforts" at providing him rehabilitative or remedial services. This court has held that "ay difference in the requirements of sec.1912(d) and RCW 13.34.180(d) and (e) are largely semantic; if anything, the showing required by our state statute is more stringent than that contained in sec.1912(d)."  [FN12] Therefore, the factors of RCW 13.34.180(1)(d) and (e) and 25 U.S.C. sec.1912(d) will be analyzed together.

FN12. A.M., 106 Wn.App. at 137-38.

Cameron contends that DSHS's efforts were insufficient to offer and provide him sexual deviancy treatment, which all agree was the primary focus of the dependency. We disagree. Cameron was provided a sexual deviancy evaluation with Suzanne Moores who recommended lengthy and intensive treatment for him. Although there was a delay in enrollment, Cameron eventually received treatment from Moores and participated for about three months, until Moores terminated him for noncompliance. Thereafter, Ocampo referred Cameron to twelve other providers, and she was prepared to arrange for funding. Unfortunately, this process never began because there was not a provider reasonably available who was willing or able to treat Cameron. DSHS's efforts of referring Cameron to Moores, providing several referrals after his termination, and exploring funding options for treatment, satisfied its duty of offering and providing services and of making active efforts at rehabilitation.

*5 Focusing primarily upon Ocampo's efforts and on his difficulty locating a therapist, Cameron argues that DSHS should have and could have done more to locate and enroll him into a treatment program. He faults DSHS for failing to "use its considerable connections, expertise, or influence" to ensure that a treatment provider would accept him. But Cameron was given the opportunity for treatment, which he failed to take advantage of because he could not follow Moores' rules. This, the trial court found, constituted willful noncompliance with a service. A parent's unwillingness or inability to make use of the services provided can excuse the State from offering extra services that might have been helpful under the state termination statute as well as the ICWA.  [FN13] Thereafter, Ocampo assisted Cameron in finding a replacement provider, but none could be found. There is nothing in the record to suggest there were other available therapists willing to treat Cameron, nor is there evidence of what, if any additional steps DSHS could have taken to so that Cameron could begin treatment. Under these circumstances, Ocampo cannot be faulted for not doing more where it was apparent that Cameron had to make some effort to address his problem. The State provided the service elements of RCW 13.34.180(1)(d) and of 25 U.S.C.1912(d) by clear, cogent, and convincing evidence.

FN13. A.M., 106 Wn.App. at 136 (citing, In re Dependency of P.A.D ., 58 Wn.App. 18, 26, 792 P.2d 159 (1990)).

Likelihood of Remedying the Problem in the Near Future/Active Efforts Unsuccessful.

Cameron next argues that the State failed to prove the fifth factor of the state termination statute, or that active efforts had proved "unsuccessful" under the ICWA. [FN14] The focus of RCW 13.34 .180(1)(e) is whether parental deficiencies have been corrected through services. [FN15] If adequate services have been offered or provided and parental deficiencies are not substantially improved within 12 months of dependency, a rebuttable presumption arises that this factor is established. [FN16]

FN14. RCW 13.34.180(1)(e); 25 U.S.C. sec.1912(d).

FN15. K.R., 128 Wn.2d at 144.

FN16. RCW 13.34.180(1)(e).

Clear, cogent, and convincing evidence supports the trial court's findings and conclusions regarding these factors. Although Cameron made laudable efforts to address his substance abuse problems and he had enrolled in parenting classes, he failed to make any improvement with regard to his sexual deviancy issues, which all parties agree was the reason for state intervention in his family. Moores believed that Cameron remained a risk of re-offending and was still in a state of denial, even after months of treatment. Substantial evidence supports the trial court's finding that rehabilitative efforts had proved unsuccessful.  [FN17]

FN17. 12 U.S.C.1912(d).

The State also proved there was little likelihood of remedying the problem so that Cameron could resume custody of the children in the near future. For almost a year after being terminated from treatment, a replacement for Moores could not be located. This did not bode well for Cameron's prospects for completing, or even enrolling in, treatment in the near future. Even if, as Cameron posited, a provider could be found within six months, his failure in Moores' program casts doubt on his prospects for future success. Moreover, assuming Cameron were able to find and fully comply with treatment, the evidence indicated that it would take two to three more years for him to complete that treatment and alleviate the risk he posed to children. This, as the trial court found, was "far too long" for the children to wait.

*6 Cameron argues that the trial court overestimated the time for him to complete treatment at two to three years, contending this figure came from Moores' opinion of the "typical" program, an estimate that did not necessarily address him personally. [FN18] He also stresses that no one recommended he complete treatment before resuming visits--all the therapists required was for treatment to begin. But while Moores spoke in general terms about the typical treatment time frame consisting of two to three years, it was clear from the context that she had this case in mind. Thus, the trial court had reasonable grounds for concluding that it would take two to three years in Cameron's case. And though none of the therapists required Cameron to complete treatment before visiting his children, there clearly was no chance for reunification until Cameron completed or substantially completed treatment. Hence, the court had substantial evidence from which to conclude that Cameron was at least two years away from remedying his sexual deviancy problem. The State proved the factors of RCW 13.34.180(1)(e) and 25 U.S.C.1912(d) by clear, cogent, and convincing evidence.

FN18. Finding of Fact 1.42 provides: "Even if the father were to start sexual deviancy treatment--and there is no evidence to suggest that he would be accepted into treatment--the treatment program takes two to three years, a period of time far too long to wait in the life of these children."

Continued Custody Likely to Result in Physical or Psychological Damage.

Cameron next argues that the State failed to prove beyond a reasonable doubt that his continued custody over E.C. and B.C. was likely to result in serious emotional or physical damage to the children. [FN19] He also challenges the trial court's findings that he posed a risk to the children, which support the court's conclusion as to this statutory factor. The State met its burden with regard to E.C. and, contrary to Cameron's assertion, substantial evidence supports the trial court's finding that he posed a risk to her. E.C. was a victim of Cameron's sexually inappropriate misconduct and, given Cameron's continued risk of reoffending, the court reasonably concluded she remained at risk at the time of trial. And Cameron can hardly dispute that being victimized in this manner would cause psychological harm to any eleven-year-old girl in E.C.'s position. Further evidence of the risk to E.C., beyond sexual victimization, was presented through the testimony of the children's therapist, the CASA, as well as the caseworker specializing in Indian child custody cases. All described the severe problems E.C. displayed and the emotional and psychological damage that she continued to suffer due in large part to the prolonged uncertainty and impermanence of this dependency. In light of Cameron's bleak prospects for improvement in the near future, the court had a basis for concluding that E.C.'s problems would only worsen if the dependency were allowed to drag on indefinitely. The State proved that continued custody posed a risk to E.C., both of future abuse and the lack of stability in her life.

FN19. 25 U.S.C. sec.1912(f).

Although a much closer question, the State met its burden with regard to B.C. as well. B.C. was not involved in Cameron's crime, but Moores testified that offenders such as Cameron posed a risk of "crossover" offending: that is committing various types of sex crimes against various classes of victims. From this the court could conclude that B.C. was at risk of future victimization. B.C. was less aware of his situation and did not suffer from the uncertainty of dependency to the degree that E.C. did. But as with E.C., there was a consensus among witnesses that continuing his relationship with Cameron was detrimental to him, based on the need for permanence and stability. The court also heard testimony that contact with Cameron had a detrimental effect on B.C., requiring visits to be suspended. Finally, even if the danger of psychological damage was less clear with regard to B.C., that danger was very clear with regard to his sister. Given the therapist's opinion that separating B.C. from his sister would have "horrible" consequences for him, the court had a tenable basis for concluding that returning B.C. to Cameron's custody would result in severe psychological damage.

Continued Parent-Child Relationship Diminished Prospects for Early Integration Into Stable and Permanent Home.

*7 Cameron next argues the State failed to meet its burden of proing that continuing his relationship with the children "clearly diminish{ed} the children's prospects for early integration into a stable and permanent home."  [FN20] Stressing the relatively stable foster home where the children lived at the time of trial, Cameron argues that continuing his relationship with them (as opposed to custody) would do nothing to disrupt that stability and, therefore, would not diminish the children's prospects for early integration into a stable and permanent home. We disagree. Contrary to Cameron's assertion, the children's therapist strongly believed that the dependency was harmful to the children. Moreover, no matter how stable, foster care is inherently temporary, and courts will rarely view foster care as a "stable and permanent home" justifying a delay in termination proceeding. [FN21] Given Cameron's low prospects for improvement in the near future, the danger of indefinite foster care for the children was extremely high in this case. In light of this, the State proved by clear, cogent, and convincing evidence that continuing the parent and child relationship diminished the children's prospects for early integration into a stable and permanent home.

FN20. RCW 13.34.180(1)(f).

FN21. See In Re A.V.D, 62 Wn.App. 562, 569-70, 815 P.2d 277 (1991).

Best Interests.

Cameron lastly argues that the trial court should not have terminated his rights because the State failed to prove by a preponderance of the evidence that termination was in either child's best interests. [FN22] But his argument primarily focuses on his attachment with the children and the progress that he made in other aspects of dependency. Unfortunately, time ran out for Cameron to prove that he could address the primary reason his children were removed from his care. Ocampo, the children's therapist, and the CASA all concluded that based on the danger posed to the children, the impermanence and uncertainty of foster care, and the lack of any evidence that things would change in the near future, termination was in the best interest of both children. The trial court did not err in terminating Cameron's parental rights.

FN22. RCW 13.34.190.