(Cite
as: 46 Wash.App. 748, 732 P.2d 528)
Court
of Appeals of Washington,
Division
1.
In
re the DEPENDENCY OF Chenelle ROBERTS,
DEPARTMENT
OF SOCIAL & HEALTH SERVICES, Respondent,
v.
Paula
STRATMEYER, Appellant.
No.
16566-6-I.
Feb.
9, 1987.
**529
*749
Neil M. Fox, Appellate Defender, Seattle, for Paula stratmeyer.
Sara Sappington, Asst. Atty. Gen., Seattle, for Department of Social
and Health Services of the State of Washington.
SCHOLFIELD, Chief Judge.
Paula Stratmeyer appeals, challenging the sufficiency of the evidence in
support of the trial court's order terminating her parental rights
with regard to her daughter, Chenelle Roberts. We
affirm.
FACTS
Chenelle Roberts, born October 24, 1977, is an enrolled member
of the Nooksack Indian tribe. Paula Stratmeyer is
the child's natural mother. Her putative father's whereabouts
are unknown.
Stratmeyer, who has been diagnosed as a paranoid schizophrenic, has
a long history of mental illness as well as a
long history of involvement with the Department
of Social and Health Services (DSHS) Child Protective Services. Aside
from the petition filed in the instant case on May
11, 1983, DSHS filed dependency petitions three times before, in
October 1978, August 1979 and December 1980. Each
time the petitions were dismissed, however, after Stratmeyer agreed to
take the medication prescribed for her mental illness and to
participate in various counseling programs.
**530
On May 10, 1983, Ronald Stratmeyer had a seizure at
home. When a fire department emergency unit arrived,
they found Paula Stratmeyer hysterical, the residence dirty and unkempt,
and Chenelle, age 5, locked out of the house.
The child was covered with open lesions.
Chenelle was put in foster care and eventually placed with
her maternal grandparents. Arrangements were made for weekly
visits supervised by DSHS. Stratmeyer, however, often arrived late for
these visits or not at all, usually without *750
an explanation. Between May 1983 and the time
of trial, April 1985, Stratmeyer visited her daughter only 10
times. Chenelle was described as withdrawn and anxious
during these visitations, in contrast to her otherwise outgoing and
engaging behavior.
At trial, a clinical social worker, Stanley Case, who worked
with Chenelle for 1 year in play therapy, testified that
the child reenacted with her dolls feelings of abandonment, abuse
and neglect. He opined that Chenelle's over-anxiousness and
mild articulation disorder were a result of a "deprivational environment".
Case testified that Chenelle's prognosis was "very good"
if Stratmeyer's parental rights were terminated, but if not, there
was a high risk of future emotional problems due to
a combination of environmental stresses and Chenelle's biological vulnerability to
mental illness. He concluded that the child would
"be at extremely high risk if placed with her mother."
A DSHS caseworker with a background in Indian child welfare,
Elaine Fiddler, also testified. Fiddler filed the termination
petition because she felt Chenelle "was at extreme risk of
psychological and emotional damage", and there was no way that
Stratmeyer could provide for the child's emotional and physical needs.
Fiddler testified there were no services reasonably available
that would correct Stratmeyer's parenting deficiencies, and Chenelle would be
"at extreme risk of neglect and emotional abuse" were she
returned to her mother. Caseworkers Ernie Gowen and Chris Robinson
testified that Stratmeyer lacked appropriate parenting skills.
Gretchen Winters, Chenelle's guardian ad litem, observed that the less
the child saw her mother, the more she improved.
Winters said Chenelle had told her repeatedly that she
no longer wanted anything to do with her mother. Winters
concluded that Stratmeyer's parental rights should be terminated.
Paula Stratmeyer testified on her own behalf. She
said she was not having parenting problems, was "doing very
well", and did not know why Chenelle had been taken
from *751
her. She told the court that she had
difficulty arranging
visitations because of transportation problems and because she had no
telephone.
The trial court found that Stratmeyer had substantially refused to
take advantage of the services offered by DSHS, believing they
were not needed, and that she demonstrated a lack of
insight about the problems that existed when the child was
removed from her home. The court found that
Stratmeyer was unable to meet her child's needs or adequately
parent her child on a consistent, ongoing basis, and that
there was little likelihood that these conditions would be remedied
in the near future. The court found further
that Chenelle had a strong and immediate need for emotional
safety, stability and consistency due to her unstable upbringing, and
that these needs could not be met in her mother's
home.
The court terminated Stratmeyer's parental rights, concluding that DSHS had
established by clear, cogent and convincing evidence the requirements of
RCW 13.34.180 and had proved beyond a reasonable doubt the
requirements of the Indian Child Welfare Act of 1978 (ICWA).
STANDARD
OF REVIEW
Stratmeyer contends the State failed to prove its case beyond a reasonable
doubt, as required by the ICWA. She also argues that the ICWA requires
de novo review of the trial court proceedings, and she objects to hearsay
evidence admitted **531
below and to the reliability of the expert testimony.
The ICWA, 25 U.S.C. §
1901 et
seq.,
contains the minimum standards for the removal of Indian children
from their families. 25 U.S.C. §
1902. Section 1914 provides that:
Any
Indian child who is the subject of any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed, and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that *752
such action violated any provision of sections 1911, 1912, and
1913 of this title.
Stratmeyer maintains that this provision requires de novo appellate
review of state termination proceedings. We disagree.
The provision does no more than establish who has
standing to challenge those proceedings.
Furthermore, de novo review of such matters is contrary to
Washington law. See
Todd v. Superior Court,
68 Wash.2d 587, 594-95, 414 P.2d 605 (1966). In
fact, in deprivation proceedings, the trial court is accorded broad
discretion, and its decision is entitled to great deference on
review. In
re Tarango,
23 Wash.App. 126, 595 P.2d 552 (1979); see
also In re Aschauer,
93 Wash.2d 689, 695, 611 P.2d 1245 (1980).
This deference to the trial court's advantage in having the
witnesses before it is particularly important in deprivation proceedings.
In
re Aschauer, supra.
Thus, the findings of the trial court will
not be disturbed on appeal if they are supported by
substantial evidence. In
re Sego,
82 Wash.2d 736, 739, 513 P.2d 831 (1973).
Nevertheless, the State
must prove its case by clear, cogent and convincing evidence, the equivalent
to saying that the ultimate facts in issue must be shown by the evidence
to be "highly probable." In
re Sego, supra
at 739, 513 P.2d 831; RCW 13.34.190. RCW 13.34.180 sets forth six factors
which the State must allege and prove in a deprivation hearing:
(1)
That the child has been found to be a dependent
child under RCW 13.34.030(2); and
(2)
That the court has entered a dispositional order pursuant to
RCW 13.34.130; and
(3)
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 under RCW 13.34.030(2);
and
(4)
That the services ordered under RCW 13.34.130 have been offered
or provided and all necessary services, *753
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future have been offered or provided; and
(5)
That there is little likelihood that conditions will be remedied
so that the child can be returned to the parent
in the near future; and
(6)
That continuation of the parent and child relationship clearly diminishes
the
child's prospects for early integration into a stable and permanent
home;
Additionally, where an Indian child is involved, the ICWA requires
that:
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.
(Italics ours.) 25 U.S.C. §
1912(f). Stratmeyer appears to suggest that this requirement
replaces or supersedes RCW 13.34.180 where an Indian child is
the subject of a deprivation proceeding. We hold
that where an Indian child is involved, the ICWA merely
imposes an additional burden on the State to prove beyond
a reasonable doubt that continued custody by the parent "is
likely to result in serious emotional or physical damage to
the child."
**532
SUFFICIENCY OF THE EVIDENCE
In the case at bar, it is uncontested that Chenelle was declared a dependent
child and placed in foster care more than 2 years prior to the hearing.
This satisfies the first three conditions of RCW 13.34.180 as set forth
above. The three remaining factors are supported by substantial evidence,
even in light of the applicable standard of proof.
Relevant to factors 4 and 5, the trial court found
that, between 1978 and 1981, DSHS offered homemaker services, *754
mental health counseling and crisis
team intervention, parenting classes, an evaluation for Stratmeyer and her
child, foster care and visitation. During the current
dependency, the court found DSHS had offered or provided services
including a psychological evaluation and mental health treatment for Stratmeyer,
psychological evaluation and counseling for Chenelle, parenting classes, referrals to
financial aid, visitation, help with transportation and foster care.
The court also found that Stratmeyer had a 10-year history
of mental health problems, was diagnosed as a paranoid schizophrenic
with a seizure disorder, and was prescribed medication to control
her mental health problems. The court found further
that, although Stratmeyer was now on medication and claimed that
her problems had improved, she had a history of temporary
improvement followed by noncompliance with mental health treatment and refusal
to take her medications. The court determined that
Stratmeyer's stated goals for future education and employment and plans
to care for her child were vague and unrealistic in
view of her mental health problems and past history of
noncompliance.
All of these findings are supported by substantial evidence in
the record, and since Stratmeyer has not assigned error to
any of these findings of fact, they are verities on
appeal. Davis
v. Department of Labor & Indus.,
94 Wash.2d 119, 615 P.2d 1279 (1980). These
findings of fact are sufficient alone to support the trial
court's ultimate determination in findings of fact 1.8 and 1.14
that all reasonably available services capable of correcting her parental
deficiencies within the foreseeable future had been offered or provided,
and there was little likelihood that conditions would be remedied
so that Chenelle could be returned to her mother in
the near future.
The final factor the State had to prove, RCW 13.34.180(6),
states:
That
continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent
home.
*755
Both Case and Fiddler testified that Chenelle had a particularly
great need for a stable, sensitive environment. Caseworkers
Gowen and Robinson testified that Stratmeyer lacked appropriate parenting skills,
and Fiddler was of the opinion that Stratmeyer could not
provide even the minimal requirements for the child's individual needs.
In short, there was substantial evidence to support
the court's determination in finding of fact 1.19 that factor
6 had been proved by the State.
Finally, the court concluded that, in compliance with §
1912(f) of the ICWA, the State had proved beyond a
reasonable doubt that Stratmeyer's continued custody would likely result in
serious emotional and psychological damage to Chenelle. In
support of that conclusion, Stanley Case testified that Chenelle would
be "at extremely high risk" of having future emotional problems
if placed with her mother. Likewise, Elaine Fiddler
told the court that the child was at extreme risk
of psychological and emotional damage were she
not provided with a stable environment and noted the child's
improvement during the dependency.
Fiddler opined that Chenelle would be at extreme risk of
neglect and emotional abuse if returned to her mother and
concluded that it would be in the child's best interest
if the parental rights were terminated. The guardian
ad litem also commented on Chenelle's dramatic improvement during foster
care and likewise told **533
the court that Stratmeyer's parental rights should be terminated.
Stratmeyer takes issue with the expert qualifications of these witnesses,
particularly Stanley Case. She points to the requirement
in 25 U.S.C. §
1912(f) that the determination to terminate parental rights be based
upon "testimony of qualified expert witnesses".
The phrase "qualified
expert witness" is meant to apply to expertise beyond the normal
social worker qualifications. In
re Fisher,
31 Wash.App. 550, 553, 643 P.2d 887 (1982). The use of the plural form,
"expert witnesses", in the ICWA does not mean, however, that
the testimony of more than one qualified expert witness is required. D.A.W.
*756
v. State, 699
P.2d 340, 342 (Alaska 1985).
In In
re Fisher, supra,
one state witness had been employed as a caseworker supervisor
for the foster care program in the Indian Center for
3 years. Another witness was a mental health counselor for
the Puyallup tribe and had been
employed as a foster care caseworker by the Seattle Indian
Center for 2 1/2 % years. The court
concluded that these were "qualified expert witnesses" for the purposes
of the ICWA. Fisher,
31 Wash.App. at 553, 643 P.2d 887.
Elaine Fiddler was well
qualified within the meaning of the statute. She had attended numerous
workshops on Indian child welfare, was a member of the local Indian Child
Welfare Advisory Committee for Pierce County as well as the state committee.
Both organizations were involved in drafting the ICWA. Fiddler's qualified
opinion alone was sufficient to support the trial court's conclusion that
the requirements of 25 U.S.C. § 1912(f) were proved beyond a reasonable
doubt. See In
re Fisher, supra; D.A.W. v. State, supra.
This objection, moreover, was not raised in the trial court
below. Likewise, Stratmeyer argues on appeal for the
first time that this court should not consider hearsay evidence
admitted below and objects that the expert testimony was speculative
and not grounded upon facts in evidence.
With few exceptions, error
raised for the first time on appeal will not be considered. Eldredge
v. Kamp Kachess Youth Servs., Inc.,
90 Wash.2d 402, 583 P.2d 626 (1978). This rule is equally applicable to
appeals from deprivation proceedings. See
In re Young,
24 Wash.App. 392, 396-97, 600 P.2d 1312 (1979). The court in Young
refused to entertain appellant's objection that the expert testimony was
both speculative and hearsay because the appellant did not object to the
evidence at trial. See
also In re Fisher,
supra 31 Wash.App.
at 552, 643 P.2d 887 (citing RAP 2.5(a), where the court excluded the
appellant's first assignment of error for failure to raise an objection
below).
*757
We decline to reach the merits of these remaining arguments,
which were not raised before the court below.
The trial court's judgment is affirmed.
PEKELIS and COLEMAN, JJ., concur.
46 Wash.App. 748, 732 P.2d 528
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