[No. 25468-2-III. Division Three. August 30, 2007.]
In the Matter of the Interest of S.G.
[1] Juveniles — Parental Relationship — Termination — Findings of Fact — Sufficiency — Review — Standard of Review. Findings of fact entered by a trial court in support of a judgment terminating parental rights are reviewed to determine whether they are supported by substantial evidence in the record and whether they support the trial court's conclusions of law. [2] Juveniles — Parental Relationship — Termination — Balancing Interests — In General. A parental rights termination proceeding requires a court to balance the parent's fundamental liberty interest in the care and custody of the child against the State's obligation to protect the child's basic safety and health. [3] Juveniles — Parental Relationship — Termination — Statutory Provisions — Two-Step Analysis. A parental rights termination proceeding under RCW 13.34.180, .190 involves a two-step analysis. The first step focuses on the adequacy of the parents. The second step focuses on the child's best interests. [4] Juveniles — Parental Relationship — Termination — Parental Unfitness — As of When. A court's termination of parental rights must be based on current parental deficiencies. [5] Juveniles — Parental Relationship — Termination — Parental Unfitness — Proof — Necessity. A petition to terminate parental rights under RCW 13.34.180, .190 is not cognizable if there has been no finding by a court that the parent is deficient. Absent a finding that the parent is deficient, the court cannot evaluate the sufficiency or efficacy of services offered to the parent, whether there is a likelihood that conditions will be remedied, or whether continuation of the parent-child relationship will diminish the child's prospects for a stable and permanent home. The availability of rehabilitative services is irrelevant to a parent who has not been found to have parental deficiencies, and it is impossible to evaluate the sufficiency or efficacy of services provided to a parent when the State fails to show that the parent required any. [6] Juveniles — Parental Relationship — Termination — Improvement of Parent — State Services — Relationship to Identified Parental Deficiency — Necessity. The services offered or provided to a parent as required by RCW 13.34.180(1)(d) before parental rights may be terminated under RCW 13.34.190 must relate to an identified parental deficiency and may not be required as a means of discovering whether the parent has a deficiency or problem. [7] Juveniles — Parental Relationship — Termination — Drug and Alcohol Dependency — Determination by Requiring Treatment Services — Validity. The State may not require a parent of a dependent child to complete a drug and alcohol rehabilitation program in order to determine whether the parent has a drug or alcohol problem. A parent cannot be denied the right to parent his or her child on the off-chance that the parent may have a problem unknown to the State. [8] Juveniles — Parental Relationship — Termination — Parental Unfitness — Proof — Default Order of Dependency — Effect. The entry of a child dependency order by default against a parent does not relieve the State of proving the parent's deficiencies for purposes of a petition to terminate parental rights. The trial court must evaluate claimed parental deficiencies at every hearing through the dependency and at termination. A termination petition should be filed only when it has been shown that the efforts to cure parental deficiencies have been unsuccessful and additional services will not remedy those deficiencies in the foreseeable future. [9] Juveniles — Parental Relationship — Termination — Statutory Provisions — Factors — Failure of Proof — Effect. A court in a parental rights termination proceeding need not consider the best interests of the child, and parental rights may not be terminated, if the six factors set forth in RCW 13.34.180 have not been established by the State. Nature of Action: Action to terminate a father's parental rights to his child. Superior Court: The Superior Court for Grant County, No. 06-7-00039-5, Evan E. Sperline, J., entered a judgment of termination on July 20, 2006. Court of Appeals: Holding that the father's parental rights were improperly terminated because the State failed to prove that the father had any current parental deficiencies, the court reverses the judgment. Lila J. Silverstein- (of Washington Appellate Project), for appellant. Robert M. McKenna-, Attorney General, and Eugene M. Graff-, Assistant, for respondent. ¶1 SWEENEY, C.J. — The termination of parental rights is a two step process. First, the State must show that a parent is deficient based on specific statutory criteria. Then, having proved parental deficiency, the State must show that termination is in the best interests of the child. Here, the State required that the dependant child's father participate in services to address parental deficiencies without first proving any deficiencies. We reverse the judgment terminating the father's parental rights. FACTS ¶2 S.G. was born to Angela Rocha and Hector Gallardo-Cruz on June 10, 1998, in San Diego, California. Mr. Gallardo-Cruz is a citizen of Mexico. But he lived much of his life in San Diego as an undocumented resident. S.G.'s parents separated when she was five months old. Ms. Rocha moved with S.G. to Moses Lake, Washington. Ms. Rocha never took S.G. back to California. Mr. Gallardo-Cruz called S.G. on the phone once or twice each month and traveled to Washington once for a visit. He did not pay formal child support but occasionally gave Ms. Rocha cash payments for support. ¶3 On April 7, 2005, the Washington State Department of Child and Family Services (DCFS) received a referral. The referral alleged that Ms. Rocha had a severe chronic drug problem that caused her to neglect S.G. and her other children. The allegations were that Ms. Rocha did not provide for S.G.'s medical, financial, emotional, and other needs, and that S.G. suffered from physical abuse in her mother's care. The State placed S.G. in protective custody on April 11, 2005. ¶4 DCFS petitioned for a declaration of dependency, and the matter proceeded to a hearing on June 21, 2005. The court concluded that S.G. was dependent. A disposition hearing followed. The court ordered Ms. Rocha to participate in several services, including drug and alcohol evaluations, and follow-up treatment. And the court ordered random urinalysis tests (UAs) for drug screening purposes. ¶5 The State published notice of the dependency hearing in The San Diego Business Journal and the Quincy Valley Post-Register. Mr. Gallardo-Cruz did not appear. He told the court that he thought the dependency was only for Ms. Rocha. ¶6 The court entered a default order against Mr. Gallardo-Cruz on August 30, 2005. The court also applied "[t]he provisions of the fact finding and disposition orders entered on June 21, 2005" to the father. Ex. 9, at 3. The court ordered that Ms. Rocha and Mr. Gallardo-Cruz: • not use illegal or non-prescribed mind-altering substances; • maintain a safe and stable home for a period of at least six months before unsupervised visits or return of the child is considered; • provide information as to his or her whereabouts and as to person(s) residing in or frequenting the home (people over 16 years old were required to submit to a criminal history and background check); • sign any needed releases of information every 90 days so the State could assess progress and research the ability to safely parent; • not participate in any illegal activity; • actively participate in visitation; • participate in DCFS approved parenting plan; and • comply with providing random UAs for drug screening purposes. Ex. 8, at 6. ¶7 The State informed Mr. Gallardo-Cruz of these requirements through an Individual Service and Safety Plan (ISSP). He received the ISSP on August 19, 2005. Mr. Gallardo-Cruz told S.G.'s case worker and her guardian ad litem that he wanted his daughter to live with him in San Diego. He has a new wife and stepdaughter with whom he has lived for three and one-half years. His brother and father also live in San Diego. ¶8 In 1997, Mr. Gallardo-Cruz was convicted in Washington for possession of cocaine with the intent to distribute. He has not committed any crime since that time. He also has not consumed drugs or alcohol in five years. The State, nonetheless, required Mr. Gallardo-Cruz to avail himself of the same services it required of Ms. Rocha. So he found a program in California and participated in drug and alcohol rehabilitation at his own expense. Mr. Gallardo-Cruz submitted to UAs on five different occasions; all were negative for alcohol and drugs. ¶9 DCFS petitioned to terminate the rights of both parents on February 9, 2006. The termination proceeded to hearing on July 7, 2006. Ms. Rocha was not present or represented. Mr. Gallardo-Cruz attended by phone and was represented by his attorney. ¶10 DCFS had sent a request through interstate compact asking California's social service agency in May 2006 to perform an assessment of Mr. Gallardo-Cruz's home. The idea was that any concerns coming out of the home study would have to be addressed before S.G. could be placed with her father. The home study had not been performed at the time of the termination hearing. ¶11 Mr. Gallardo-Cruz did not visit his daughter or request telephone contact with her during the dependency. He believed that he could not contact his daughter until he completed the required services. A state social worker testified in response to a question about Mr. Gallardo-Cruz's parental deficiencies: "Well, I have not received any reports that indicate . . . his ability to parent. And as far as his drug alcohol abuse, I have no information whether he has a current problem." Report of Proceedings (RP) at 143. ¶12 The social worker nevertheless insisted that Mr. Gallardo-Cruz would have to complete a drug and alcohol treatment program before he could gain custody of his daughter. The social worker surmised that reunification with the father would take at least one year, because the "father would need to complete his court ordered services and he would have to initiate a visitation schedule as well." RP at 150-51. The social worker recommended termination because it would cause anxiety for S.G. to wait one year for her father to complete the drug and alcohol services that had been tailored to Ms. Rocha. ¶13 The trial court concluded that "[a]s to the father, there are no specific parental deficiencies currently evidenced." Clerk's Papers (CP) at 15; RP at 295. The court ordered that the parent-child relationship be terminated. Mr. Gallardo-Cruz appeals. DISCUSSION (a) That the child has been found to be a dependant 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 conditions will be remedied so that the child can be returned to the parent 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. RCW 13.34.180(1). ¶17 The court has already concluded that S.G. is dependent (because of the mother's unfitness and by default as to the father). The court has already entered a dispositional order. S.G. had been removed from the custody of a parent for a period of at least six months at the time of the hearing. Here, the dispute is over factors (d), (e), and (f). Services Offered—RCW 13.34.180(1)(d) ¶18 Mr. Gallardo-Cruz first notes that the court concluded that he did not have any parental deficiencies. He argues, then, that it was impossible for services to correct a problem because no problem was found. ¶19 The trial court specifically found that "[a]s to the father, there are no specific parental deficiencies currently evidenced." CP at 15. The availability of rehabilitative services is irrelevant to a parent who has not been found to have parental deficiencies. This statutory factor assumes that such a finding has already been made prior to the hearing for termination and for good reason—the parental rights of a fit parent cannot be terminated. In re A.W., 53 Wn. App. 22, 29, 765 P.2d 307 (1988). ¶20 The court must first conclude that the parent is deficient before it can terminate the parent's legal relationship with his child. Id. Mr. Gallardo-Cruz argues that the necessary services were not offered. And we agree. But the more basic problem is that it is impossible to evaluate the sufficiency or efficacy of services as to Mr. Gallardo-Cruz when, at this point, the State failed to show he required any. Without a problem, there can be no solution. Conditions Will Be Remedied—RCW 13.34.180(1)(e) ¶21 Again, there has been no determination of conditions that need to be remedied. So it is not possible for the court to decide the likelihood that they will be remedied. ¶22 The State submits that services are required to determine problems. Essentially, Mr. Gallardo-Cruz must complete drug and alcohol rehabilitation in order to determine whether he has a drug or alcohol problem. This perspective is neither reasonable nor supported by law. In re Dependency of T.L.G., 126 Wn. App. 181, 198, 108 P.3d 156 (2005). A parent cannot be denied his right to parent his child on the off-chance that he may have a problem unknown to the State. Continuation of the Parent-Child Relationship Diminishes Child's Prospect for a Stable and Permanent Home—RCW 13.34.180(1)(f) ¶23 Mr. Gallardo-Cruz is S.G.'s father. He wants to take her into his home. He argues that she will have a stepmother and a stepsister, as well as extended family. We find neither a finding nor evidence to support a finding that Mr. Gallardo-Cruz's home is not a stable and permanent home for S.G. Again, the only impediment to Mr. Gallardo-Cruz taking custody of his daughter is the State's insistence that he fulfill the services demanded of S.G.'s mother, Ms. Rocha. As discussed above, he should not have to do that until his deficiencies as a parent have been shown. ¶25 The court must evaluate the claimed parental deficiencies at every hearing through the dependency and at termination. A.W., 53 Wn. App. at 28. A termination petition should be filed only when it has been shown that the efforts to cure parental deficiencies have been unsuccessful and additional services will not remedy those deficiencies in the foreseeable future. Id. Here, parental deficiencies were never determined in the first place. The court concluded there were no deficiencies. ¶26 The findings here do not support the legal conclusion of termination. Id. ¶28 We reverse the judgment terminating Mr. Gallardo-Cruz's parental rights. SCHULTHEIS and BROWN, JJ., concur.