IN RE: the DEPENDENCY of I.J.S. (2005)

OPINION PUBLISHED IN PART

¶ 1Sylvia Vega and Joshua Smith appeal the trial court orders terminating their parental rights to their son I.J.S. Relying on In re Custody of Smith,¹ the parents contend Washington's termination statutes, RCW 13.34.180 and 13.34.190, are unconstitutional and violate substantive due process because (1) the State is not required to prove the relationship with the parent harms the child and (2) the State must prove dependency guardianship is not a viable alternative to termination regardless of whether a dependency guardianship petition has been filed.   If the statutes are constitutional, Vega and Smith each argue the State did not meet its burden of proving three of the six statutory factors under RCW 13.34.180 by clear, cogent and convincing evidence.²  It is well-established that the State has a compelling interest to protect children from harm.   We conclude Washington's termination statutes require the State to prove the relationship with the parents harms the child but proof of the statutory factors satisfies that burden.   In the absence of a petition for dependency guardianship, the State is not required to prove that guardianship is not an alternative to termination.   We also conclude substantial evidence supports the trial court's decision that all reasonably available services capable of correcting parental deficiencies were offered, there is little likelihood conditions will be remedied in the near future, continuation of the parent-child relationship would diminish I.J.S.'s prospects for early integration into a stable and permanent home, and termination is in I.J.S.'s best interests.   We affirm the trial court orders terminating the parental rights of Vega and Smith to I.J.S.

FACTS

¶ 2I.J.S. was born on January 16, 2002.   Sylvia Vega is his mother and Joshua Smith is his father.   Before I.J.S. was born Vega and Smith lived together at numerous locations and had an unstable lifestyle.   When Vega first met Smith he was in a methadone program, but throughout their approximately four-year relationship Vega and Smith used heroin on a daily basis.   They also used other drugs, including cocaine, ecstasy, acid, marijuana and prescription medications.   Throughout their relationship, Vega depended on Smith for emotional and financial support.

¶ 3Two days before I.J.S. was born, Smith was arrested for three counts of bank robbery and embezzlement.   Smith subsequently pleaded guilty to two counts of second degree robbery, and one count of possession of marijuana with intent to manufacture or deliver and was sentenced to twenty-seven months in prison.

¶ 4On March 2, 2002 Vega called a crisis help line.   Vega said I.J.S.'s father was in prison and she was being evicted.   Vega was afraid she would harm herself and wanted someone to come get I.J.S. to take care of him.   At the request of Child Protective Services (CPS), police officers went to Vega's apartment to take I.J.S. into protective custody.   According to the officers, “the mother's home was dirty, there was moldy food in the home and narcotic parephenalia(sic) in the bedroom and the bathroom.” ³

¶ 5On March 5, Vega signed a three month voluntary placement agreement for I.J.S. and a services contract.   In the services contract, Vega agreed to obtain mental health counseling at the Community Psychiatric Clinic (CPC), submit to urinalysis (UA), and visit I.J.S. for a minimum of one hour a week.   In March and April, Vega visited I.J.S. three times.

¶ 6On March 15, 2002 Vega went to CPC for an evaluation.   Vega was diagnosed by CPC with major depressive disorder and strong suicide ideation.   CPC prescribed an antidepressant, Effexor.   Although the Effexor helped her, Vega started using drugs again.

¶ 7On June 5 Vega signed another three-month voluntary placement agreement for I.J.S. and a services contract with the same requirements (to obtain mental health counseling, submit to urinalyses (UA's), and visitation with I.J.S.).   On June 7 and 10 Vega tested positive for heroin, cocaine, codeine, and morphine.   Vega told the CPS caseworker she was using heroin daily and was also using cocaine and prescription drugs.   Vega also told the caseworker she used heroin and ecstasy with Smith prior to her pregnancy and was using heroin, cocaine, marijuana, pills and alcohol within one month of I.J.S.'s birth.

¶ 8On June 17 Vega attended her first session at CPC. The next week she participated in a second session at CPC, but cancelled the next one.   Approximately a year later, CPC discharged Vega for not participating in counseling sessions.

¶ 9On July 2, the State filed a petition for the dependency of I.J.S. The dependency dispositional order for Vega required her to obtain a drug and alcohol evaluation and participate in treatment recommendations, submit to random UA's, obtain mental health services and attend parenting classes.   The order also provided for supervised visitation with I.J.S. The dispositional order for Smith required him to establish paternity after release from prison, provide the case worker with a release for all services and evaluations received while incarcerated, and contact the case worker every six months.   The order stated that visitation and other services would be assessed after Smith established paternity and was released from prison.   In the order, Smith expressly reserved the right to set a hearing to address visitation when he was in minimum custody or work release.

¶ 10On August 5 TASC evaluated Vega and diagnosed her as heroin, alcohol and cocaine dependent.   Vega entered detox in early September, but left after two days and continued using drugs.

¶ 11In early September 2002, Vega and Smith each agreed to entry of orders of dependency.   In late September, Vega entered detox again but was discharged in November for failure to participate in the program.

¶ 12In December 2002 Vega successfully completed detox and on December 23 she moved into Genesis House, a long-term inpatient residential treatment facility.

¶ 13The Genesis House program requires nine months of inpatient treatment followed by outpatient treatment.   According to Genesis House staff, Vega needed clinically managed, high intensity care.   While at Genesis House, Vega attended parenting classes and had consistent visitation with I.J.S. for two hours a week.   Visitation was later increased to four hours a week.

¶ 14Vega's participation in the Genesis House program was inconsistent.   She completed phase one and two in early September 2003, but was terminated before completing the program.   Genesis House terminated Vega for unsatisfactory participation and not complying with the rules and requirements of the program.   The Genesis House discharge report described Vega's behavioral changes as superficial and her prognosis for long-term recovery as poor.

¶ 15On April 3, 2003 the State filed a petition to terminate the parental rights of Vega and Smith.   The petition described the parents' drug history and the circumstances related to I.J.S.'s dependency.   Vega was only in the beginning stages of drug treatment and had not obtained mental health services and Smith was in prison and had not established paternity.   The State alleged there was little likelihood either parent could remedy their parental deficiencies in the child's near future.

¶ 16After Smith's release in August 2003, he was assessed for services and told to establish paternity, obtain a drug and alcohol evaluation and participate in recommended treatment, submit to random UA's and attend parenting classes.   Smith temporarily moved in with his ex-wife and their nine-year-old daughter and obtained a job washing windows in high-rise buildings.   Smith established paternity of I.J.S. after the court entered an order requiring him to do so on September 30.   Smith also enrolled in parenting classes.   Smith said he obtained a drug and alcohol evaluation, but did not provide a copy to the State.   Smith's first UA was positive for alcohol but the subsequent 15 or 16 UA's were negative.

¶ 17Against the advice of the Genesis House counselors, Vega resumed her relationship with Smith and relied on him for emotional and financial support.

¶ 18When Vega was terminated from Genesis House, the State facilitated her move to Oxford House, a clean and sober housing facility.   In October 2003 Vega began outpatient drug and alcohol treatment at Therapeutic Health Services.   Vega also attended some Alcoholics Anonymous meetings and enrolled in parenting classes.   Oxford House referred Vega to a number of facilities for mental health counseling.   At the time of trial, Vega did not have a sponsor for outpatient treatment and had not begun mental health counseling.

¶ 19The six-day termination trial began at the end of October 2003.   At the conclusion of the trial, the court terminated Vega's and Smith's parental rights to I.J.S. On January 10, 2003 the court entered findings of fact, conclusions of law and orders of termination as to Vega and Smith.   Vega and Smith appeal the trial court orders terminating their parental rights to I.J.S.

Constitutional Challenge To Termination Statutes

¶ 20The parents contend Washington's termination statutes, RCW 13.34.180 and .190, are unconstitutional and violate substantive due process because the State is not required to prove that the relationship with the parents harms the child or that a dependency guardianship is not a viable alternative.   The parents' contentions are not supported by the statutory scheme or the law.

 ¶ 21A statute is presumed constitutional.⁴  A party challenging a statute has the burden of proving it is unconstitutional beyond a reasonable doubt.⁵  Courts must begin “with the assumption that the legislature, which is a coequal branch of government that is sworn to uphold the Constitution, has indeed considered the constitutionality of its enactments.” ⁶  Because the parents assert a facial challenge, they must also prove “no set of circumstances exists in which the statute, as currently written, can be constitutionally applied.” ⁷

 ¶ 22The Washington and United States Constitutions guarantee that no person may be deprived of life, liberty, or property without due process of law.⁸  It is well established that parents have a fundamental liberty and privacy interest in the care and custody of their children.⁹  But a parent's constitutional due process rights are not absolute.   A statute that allows the State to interfere with a fundamental right is constitutional “only if the State can show that it has a compelling interest and such interference is narrowly drawn to meet the compelling state interest involved.” ¹⁰  In a termination proceeding, the State has a compelling interest to prevent harm to children and has an obligation to intervene and protect a child from harm or the risk of harm.¹¹  “[W]hen parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child.” ¹²

 ¶ 23The parents rely on In re Smith to argue that the termination statutes are unconstitutional because the statutes do not require a threshold showing of harm and the statutes impermissibly use a best interest of the child standard.   In In re Smith the Washington Supreme Court held that the third party visitation statutes did not establish a compelling state interest and unconstitutionally interfered with parental rights.   The Court concluded the statutes did not require the State to show harm and the trial court could grant visitation rights to third parties whenever “visitation may serve the best interest of the child ․' ” ¹³ “[r]egardless of the fact that the parent's fitness is not challenged or that there has been no showing of harm or threatened harm to the child.” ¹⁴  In deciding the statute was unconstitutional, the Court contrasted the third party visitation statutes with the State's obligation to interfere with parents' rights to protect children from harm.¹⁵  Unlike the third party visitation statutes, the legislature in the termination statutes requires the State to intervene and protect a child from harm.   And, although the termination statutes focus on a best interest of the child standard, the State must also prove six statutory factors and that the relationship with the parents actually or potentially harms the child.

¶ 24In order to terminate the parent-child relationship, the State must prove the six statutory factors set forth in RCW 13.34.180(1) by clear, cogent and convincing evidence.

¶ 25The statutory elements of RCW 13.34.180(1) are that:

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

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

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

Only after the State proves the six statutory factor, does the court consider whether, by a preponderance of the evidence, termination is in the best interests of the child.  RCW 13.34.190(1)(a).

¶ 26Here, there is no dispute that I.J.S. was a dependent child under RCW 13.34.180(1)(a).   A dependent child is defined as a child who:

(a) has been abandoned;

(b) Is abused or neglected ․ by a person legally responsible for the care of the child;  or

(c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development. 16

Establishing the child is dependent under RCW 13.34.180(1)(a) and it is unlikely conditions can be remedied so the child can be returned in the near future under RCW 13.34.180(e) is equivalent to finding harm to the child.   We conclude that unlike the third party visitation statutes in In re Smith, the termination statutes are narrowly drawn because the State must prove that the relationship with the parents harms or potentially harms the child before the court can terminate parental rights.

¶ 27The parents also argue the termination statutes are unconstitutional because the State is not required to prove that a dependency guardianship is a viable alternative to termination.   When a dependency guardianship petition is filed, the trial court must consider whether guardianship rather than termination is in the child's best interests.¹⁷  The parents argue strict scrutiny requires consideration of a dependency guardianship in every termination regardless of whether a petition has been filed.

In 1994, the legislature amended the dependency guardianship statute to ensure that “[d]ependency guardianships now offer sufficient permanency to present a viable alternative to termination in appropriate cases.” ¹⁸  In K.S.C., the Washington Supreme Court reviewed the amended guardianship and termination statutes and held that “[t]he 1994 legislative amendments to RCW 13.34.231 do not require a court to consider a dependency guardianship, whether as an alternative to termination or otherwise, where the State has petitioned for termination and no party has petitioned for a dependency guardianship.” ¹⁹

¶ 29Relying on this court's recent opinion in In re Dependency of A.C.,²⁰ the parents argue that because dependency guardianship is a viable alternative to termination, strict scrutiny requires the trial court to consider dependency guardianship in every case regardless of whether a petition is filed. The parents' reliance on In re A.C. is misplaced.   Our decision in A.C. is consistent with the Court's decision in K.S.C. and is distinguishable from this case.

¶ 30The trial court in A.C. was “faced with competing petitions for guardianship and termination.” ²¹  The mother had filed a dependency guardianship petition naming her sister and brother-in-law as guardians and the State had filed a petition to terminate the mother's parental rights.   In A.C., we adopted the “factors for consideration where both options are presented ” ²² and decided the dependency guardianship is mandatory if the first five factors in the statute are satisfied and the court finds that “guardianship, rather than termination of the parent-child relationship or continuation of efforts to return the child to the custody of the parent, would be in the best interest of the child.” ²³

 ¶ 31If both a dependency guardianship and a termination petition are filed, the trial court must first consider the dependency guardianship as an alternative to termination.   But here, the parents admit no party has petitioned for a dependency guardianship for I.J.S. As in K.S.C., “[t]here is no evidence of any petition to create a dependency guardianship, no evidence of any order creating such a guardianship, and no indication that any hearing relating to one has ever been held.” ²⁴  “[W]hen faced solely with a petition for termination of parental rights, the court's inquiry is whether the allegations in RCW 13.34.180 are proved by clear, cogent and convincing evidence, and whether termination is in the best interest of the child.” ²⁵

 ¶ 32In addition, the record does not support the parents' argument that a dependency guardianship for I.J.S. was a viable alternative.   I.J.S.'s paternal grandfather was the only person mentioned as a potential guardian.   Early on, the State asked the grandfather whether he was willing to consider a dependency guardianship.   At first, he said he was willing to do so, but the next day he called and told the caseworker he did not want to assume this responsibility because he was already caring for three other grandchildren with special needs.   At trial, the grandfather testified he would be willing to allow Smith or Vega to live in his home and he would supervise their care of I.J.S., but that he did not want to be primarily responsible for I.J.S.

¶ 33The parents have not met their burden of proving Washington's termination statutes are unconstitutional.   The State has a compelling interest to prevent harm to children and the dependency and termination statutes allow the State to intervene to protect a child from harm.   To terminate the parent-child relationship the State must meet its burden of proving the statutory factors.   A court must consider a dependency guardianship as an alternative to termination only when a petition for a dependency guardianship has been filed.   In A.C. we did not hold that a dependency guardianship should be considered in the absence of dependency guardianship petition.   We conclude Washington's termination statutes, RCW 13.34.180 and RCW 13. 34.190, do not violate the parent's substantive due process rights.   We also conclude strict scrutiny does not require the trial court to consider dependency guardianship as an alternative if a petition has not been filed.²⁶

¶ 34The balance of this opinion has no precedential value.   Accordingly, pursuant to RCW 2.06.040 it will not be published.

Sufficiency of Evidence for Termination

¶ 35Even if the termination statutes are constitutional, Vega and Smith each argue the State did not prove three of the six statutory factors by clear, cogent and convincing evidence:  first, that all services reasonably available and capable of correcting their parental deficiencies in the near future were offered or provided;  second, that there is little likelihood that conditions will be remedied so that I.J.S. could be returned to his parents in the near future, and third, that continuation of the parent-child relationship clearly diminishes I.J.S.'s prospects of early integration into a stable and permanent home.   Vega and Smith also challenge the trial court's finding that termination was in the best interest of I.J.S.

¶ 36The State must prove the six statutory factors by clear, cogent and convincing evidence.   Evidence meets this standard when the ultimate facts at issue are “highly probable.” 27  “A determination that termination is in the best interests of the child must be supported by a preponderance of the evidence” 28 and must be decided on the facts and circumstances of the individual case.29  This court will not disturb the trial court's findings if substantial evidence supports finding the State has met the requisite burden of proof.30  The trial court's findings of fact must be upheld if they are supported by substantial evidence such that a reasonable trier of fact could find the necessary facts by clear, cogent and convincing evidence.31  Because the trial court has the advantage of observing witnesses, deference is particularly important in appellate review of termination decisions.32

Services Capable of Correcting Parental Deficiency in Forseeable Future

¶ 37Both RCW 13.34.231(1)(d) and RCW 13.34.231(4) require the State to offer or provide services capable of correcting parental deficiencies within the near future.   It is well settled that additional services that might have been helpful need not be offered when a parent is unable or unwilling to make use of the services provided.33

¶ 38Vega and Smith each challenge the trial court's finding that:

There is no question that extensive services have been offered to the parents.   While some question was raised about providing hands on parenting, there was no evidence that these services would make any difference in the parenting ability of the mother and father, considering their long standing drug dependency.34

¶ 39Unchallenged findings and the record support the trial court's determination that Vega and Smith's primary parental deficiency was drug dependency and it interfered with their ability to parent successfully. 35

¶ 40Vega started using drugs at age 12 or 13, and was using heroin on a daily basis as well as cocaine, alcohol, marijuana, and other drugs when she lived with Smith.   Vega testified that she used drugs with Smith and within their circle of friends as well as on her own after Smith's incarceration.   At the TASC evaluation in 2002, she was diagnosed with a heroin and cocaine addiction and admitted she used heroin on a daily basis.

¶ 41Numerous services were offered to Vega, including drug and alcohol evaluation and treatment, mental health counseling, clean and sober housing, parenting classes, and visitation.   Vega did not begin to utilize the services offered by the State until almost 10 months after I.J.S. was removed from her care.   After another nine months, she completed the first two phases of treatment at Genesis House but was terminated before completing phase three. 36  At the time of trial, Vega's UA's were negative and she was living at a clean and sober facility, Oxford House, but had just begun outpatient treatment.   Vega testified she would not relapse but she had no plan for such a contingency.   In the approximately 18 months after CPS removed I.J.S. from the home, Vega completed only one step of a twelve step program, had difficulty describing the elements of the first step and could not name the other steps.   The trial court concluded Vega had unrealistic expectations regarding relapse, and that “[w]ithout support, relapse is inevitable, despite [Vega's] refusal to acknowledge that possibility.” 37

¶ 42In addition to drug dependency, Vega has a history of depression and panic attacks.   Vega was diagnosed with major depressive disorder and strong suicide ideation.   While mental health treatment was offered and consistently recommended, it is undisputed Vega did not participate in mental health counseling.   Vega also does not challenge the trial court's finding that:

The mother will need at least a year of additional treatment in mental health counseling and effective participation in a twelve-step program, together with a network of clean and sober support and an effective outpatient program before she will be able to take on the additional stress of parenthood.38

¶ 43This unrefuted finding also supports the trial court's conclusion that given her other deficiencies, there is no evidence that hands on parenting instruction would have made a difference in Vega's parenting ability.

¶ 44For the first time on appeal, Vega argues the State failed to meet its obligation to provide maximum parent-child contact because the State refused to allow I.J.S. at Genesis House.39

¶ 45Vega's first request to place I.J.S. with her was seven days after she started inpatient treatment at Genesis House.   The State denied the request because Vega needed to concentrate on treatment.   Her second request was in March 2003.   The State concluded Vega was still at the beginning of treatment and her progress was not sufficiently stable to warrant placing I.J.S. with her at Genesis House.40  While Vega was in treatment at Genesis House, the statute facilitated the maximum visitation.   Substantial evidence supports the State's decision to not place I.J.S. with Vega at Genesis House during the first three months of her intensive inpatient treatment.

¶ 46Smith successfully completed several programs while in prison, including an intensive drug treatment program, anger management, family dynamics, and effective parenting.   After his release, the trial court found Smith frustrated the State's efforts to provide drug treatment because he self-selected a drug evaluation provider, the parameters of the evaluation were unknown and Smith did not provide a copy of the evaluation to the State.

¶ 47Smith argues the trial court erred in finding he had not visited I.J.S. often enough, that he did not understand I.J.S.'s needs and that he did not have a bond with I.J.S. Smith also contends the State did not provide all necessary services because the State did not provide hands on parenting training.

¶ 48Smith was arrested two days before I.J.S. was born in January 2002.   Smith was in prison until August 2003.   At the time of the dependency and disposition orders, Smith had not established paternity.   In the dependency disposition order, Smith reserved the right to set a hearing to address visitation while he was on work release, but he never requested a hearing.   Smith did not ask for hands on parenting training and the trial court did not order it.   Smith did not establish paternity until September 2003.

¶ 49Smith was incarcerated for the first eighteen months of I.J.S.'s life, and did not have a parent-child relationship or bond with I.J.S. Smith began visitation in August 2003 and visited consistently until the trial, but this was only a period of six to eight weeks.   According to the testimony, I.J.S. acted toward Smith in the same way he acted toward strangers.41

¶ 50Substantial evidence supports the trial court's conclusion that Smith did not have a parent-child bond with I.J.S. and hands on parenting would not make any difference.42

Likelihood Conditions Will be Remedied

¶ 51RCW 13.34.180(1)(e) requires the State to prove “there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future.”   The focus of this factor is “whether parental deficiencies have been corrected.” 43  If all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future are offered or provided and the deficiencies are not substantially improved within twelve months of the dependency order, there is a rebuttable presumption this factor is established.44  The foreseeable future is measured from the child's point of view.45

¶ 52Substantial evidence supports the trial court's findings that Vega is still in the beginning stage of recovery for drug addiction, had not begun mental health treatment and had spent no time with I.J.S. in an unstructured, unsupervised setting.   The record also supports the trial court's finding that Smith did not have a father/child bond or parenting history with I.J.S. Before Smith's arrest, he was a drug dealer and used heroin on a daily basis.   After his release, Smith was asked to obtain a drug and alcohol evaluation and follow treatment recommendations.   Smith said he obtained an evaluation but would not release it.   Without an evaluation from an approved provider, the State was unable to assess Smith's drug dependency.

¶ 53At the time of trial, I.J.S. was 21 months old and had been out of the home for all but the first two months of his life.   There was testimony that each parent would require at least one year to reach a point where they might be in a position to care for I.J.S. The evidence established there is little likelihood Vega and Smith's parental deficiencies will be remedied so I.J.S. can be returned to Vega or Smith in the near future.

Effect of Continuing Relationship on Prospects for Early Integration

¶ 54The State must prove that “continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.” 46  This finding “necessarily follows from an adequate showing “ ‘[t]hat there is little likelihood that conditions will be remedied so that the child can be returned to the parents in the near future.’ ” 47

¶ 55The trial court specifically addressed the effect of continuing the parent/child relationship and prospects for early integration in findings of fact 1.43-1.45.

1.43 Continuation of the parent-child relationship between the child and his mother and father clearly diminishes the child's prospects for early integration into a stable and permanent home.   Since the child cannot be returned to his mother and father in the near future, he cannot be integrated into a stable and permanent home unless his parents' parental rights are terminated and he is freed for adoption.

1.44 Here, there is no parent and child relationship with the father and little relationship with the mother, and then only with short visits in a supervised, structured environment.   The only stable environment that the child has ever known is with the foster parents.

1.45 The legislature has provided that the rights of the child to a safe, stable and permanent home take priority over the legal rights of the parents.   Here, the child is in a stable, nurturing, caring and permanent environment with foster parents who are able to provide the child with the services that he needs.   The father, on the other hand, has a history of incarceration, of substance abuse and dealing, and of instability.   He has seen the child for 22 hours in the last 22 months and no parent/child has ever been created.   Similarly, the mother has a history of significant substance abuse and instability, and no significant parent/child relationship has been created.   Her commitment to future sobriety, while stated strongly at trial, has not been supported by objective acts.48

According to the Court Appointed Special Advocate (CASA) since July 2002, I.J.S. has lived with the same stable, loving family and has an “extremely close bond with his foster parents,” 49 who want to adopt I.J.S.

¶ 56In the CASA's opinion “[b]reaking his bond with his foster parents now would likely have a long-term adverse impact on his future ability to form emotional attachments.  [I.J.S.]'s biological parents are unlikely to achieve sufficient progress in a reasonable amount of time to warrant a decision to return home.   Furthermore, they have not demonstrated the ability to sustain the necessary level of stability in their own lives to provide a safe and healthy environment for their child.   Failure to terminate parental rights would erode the stability that this child has experienced most of his life with his foster family and would cause this child to endure increasing confusion and destabilization as he becomes more aware of his situation.” 50  Substantial evidence supports the trial court's findings that continuation of the parent-child relationship would diminish I.J.S.'s ability to integrate into a permanent home.

Child's Best Interests

¶ 57If the factors in RCW 13.34.180 are proved by clear, cogent and convincing evidence, the trial court then considers whether the State has proved by a preponderance of the evidence that termination of the parent-child relationship is in the child's best interests.51  The dominant consideration in determining the best interests of the child is the child's welfare, and the parental relationship must be subordinate to this consideration.52  A child has “the right to a safe, stable, and permanent home and a speedy resolution of any proceedings under this chapter.”  53

¶ 58Vega alleges the best interest of the child standard was not met because several witnesses testified that she and I.J.S. had an obvious parent-child bond.   But the record shows that most of this testimony addressed whether Vega acted appropriately with I.J.S. While there was testimony that I.J.S. became more bonded with Vega over time, there was other testimony that I.J.S. behaved toward both parents like they were strangers.

¶ 59Smith argues the trial court's determination regarding I.J.S.'s best interests was premature because the State failed to provide all necessary services.   As discussed, the evidence supports the trial court's findings that the State offered Smith all necessary and available services.   When a parent has not been able to address parental deficiencies over a lengthy dependency, a court is “fully justified” in finding termination is in the child's best interests.  In re A.W., 53 Wash.App. at 33, 765 P.2d 307.   We conclude the State proved the factors in RCW 13.34.180 by clear, cogent and convincing evidence and affirm the trial courts decision that termination is in the best interest of I.J.S.

CONCLUSION

¶ 60Washington's termination statutes are constitutional, the State met its burden of establishing the statutory factors of RCW 13.34.180 by clear, cogent and convincing evidence and substantial evidence supports the trial court's decision to terminate Vega and Smith's parental rights to I.J.S. We affirm the orders to terminate Vega's and Smith's parental rights to I.J.S.

FOOTNOTES

1.   137 Wash.2d 1, 969 P.2d 21 (1998), aff'd sub nom Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

2.   Vega and Smith each filed a separate appeal and the cases were consolidated.   Smith adopted that part of Vega's supplemental brief addressing the constitutional challenge to the termination statutes.   Smith and Vega each makes a different argument regarding why the trial court's findings are not supported by substantial evidence.

3.   Clerk's Papers (CP) at 97.

4.   State v. Coria, 120 Wash.2d 156, 163, 839 P.2d 890 (1992);  Haley v. Medical Disciplinary Bd., 117 Wash.2d 720, 739, 818 P.2d 1062 (1991).

5.   In re Osborne, 119 Wash.App. 133, 147, 79 P.3d 465 (2003).

6.   Osborne, 119 Wash.App. at 147, 79 P.3d 465, citing Island County v. State, 135 Wash.2d 141, 147, 955 P.2d 377 (1997).

7.   City of Redmond v. Moore, 151 Wash.2d 664, 669, 91 P.3d 875 (2004).

8.   U.S. Const. amends.   V, XIV;  art.1, section 3, Wash. Const.

9.   Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);  In re Smith, 137 Wash.2d 1, 27, 969 P.2d 21 (1998).

10.   Smith, 137 Wash.2d at 15, 969 P.2d 21.

11.   Santosky, 455 U.S. at 766, 102 S.Ct. 1388.

12.   In re Sumey, 94 Wash.2d 757, 762, 621 P.2d 108 (1980).

13.   In re Smith, 137 Wash.2d at 7, 969 P.2d 21, quoting RCW 26.10.160(3).

14.   In re Smith, 137 Wash.2d at 17, 969 P.2d 21.

15.   Sumey, 94 Wash.2d at 762, 621 P.2d 108.

16.   RCW 13.34.030(5).

17.   RCW 13.34.231(6).

18.   In re A.C., 123 Wash.App. 244, 251, 98 P.3d 89 (2004).

19.   K.S.C., 137 Wash.2d at 931, 976 P.2d 113.

20.   A.C., 123 Wash.App. 244, 98 P.3d 89.

21.   A.C., 123 Wash.App. at 246, 98 P.3d 89.

22.   A.C., 123 Wash.App. at 252, 98 P.3d 89 (emphasis added).

23.   A.C., 123 Wash.App. at 251, 98 P.3d 89 (emphasis added).

24.   K.S.C., 137 Wash.2d at 928, 976 P.2d 113.

25.   K.S.C., 137 Wash.2d at 930, 976 P.2d 113.   In the absence of a petition for dependency guardianship, if the court finds the allegations in RCW 13.34.180 and .190 are not met, the alternative is to continue the child's dependency and foster placement.

26.   We would reach the same result under an as-applied constitutional challenge because the State met its burden of proving the relationship with Vega and Smith harmed I.J.S. and substantial evidence supports the trial court's findings.

FN27. K.S.C., 137 Wash.2d at 925, 976 P.2d 113..  FN27. K.S.C., 137 Wash.2d at 925, 976 P.2d 113.

FN28. In re H.W. & V.W., 92 Wash.App. 420, 425, 961 P.2d 963 (1998), citing In re A.J.R., 78 Wash.App. 222, 228, 896 P.2d 1298 (1995)..  FN28. In re H.W. & V.W., 92 Wash.App. 420, 425, 961 P.2d 963 (1998), citing In re A.J.R., 78 Wash.App. 222, 228, 896 P.2d 1298 (1995).

FN29. In re A.V.D., 62 Wash.App. 562, 572, 815 P.2d 277 (1991)..  FN29. In re A.V.D., 62 Wash.App. 562, 572, 815 P.2d 277 (1991).

FN30. In re Dependency of S.V.B., 75 Wash.App. 762, 768, 880 P.2d 80 (1994)..  FN30. In re Dependency of S.V.B., 75 Wash.App. 762, 768, 880 P.2d 80 (1994).

FN31. K.S.C., 137 Wash.2d at 925, 976 P.2d 113..  FN31. K.S.C., 137 Wash.2d at 925, 976 P.2d 113.

FN32.  See In re Aschauer, 93 Wash.2d 689, 695, 611 P.2d 1245 (1980)..  FN32.  See In re Aschauer, 93 Wash.2d 689, 695, 611 P.2d 1245 (1980).

FN33. In re Dependency of T.R., 108 Wash.App. 149, 29 P.3d 1275 (2001)..  FN33. In re Dependency of T.R., 108 Wash.App. 149, 29 P.3d 1275 (2001).

FN34.  CP at 79..  FN34.  CP at 79.

FN35.  Unchallenged findings are considered verities on appeal.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994);  Gotcher v. Rowell, 2 Wash.App. 615, 468 P.2d 1004 (1970)..  FN35.  Unchallenged findings are considered verities on appeal.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994);  Gotcher v. Rowell, 2 Wash.App. 615, 468 P.2d 1004 (1970).

FN36. “[S]ervices were offered at the beginning of the dependency, but were not utilized until her third detox was successful and her entry into Genesis House.   That was nearly ten months after the child was placed in the custody of the state.”   Finding of Fact 1.36.   CP at 79..  FN36. “[S]ervices were offered at the beginning of the dependency, but were not utilized until her third detox was successful and her entry into Genesis House.   That was nearly ten months after the child was placed in the custody of the state.”   Finding of Fact 1.36.   CP at 79.

FN37.  Finding of Fact 1.23, CP at 77..  FN37.  Finding of Fact 1.23, CP at 77.

FN38.  Findings of Fact 1.26, CP at 78..  FN38.  Findings of Fact 1.26, CP at 78.

FN39. RCW 13.34.136(b)(ii).   The State must encourage the maximum visitation possible between parent and child, but may limit or deny visitation if necessary to protect the child's health, safety or welfare..  FN39. RCW 13.34.136(b)(ii).   The State must encourage the maximum visitation possible between parent and child, but may limit or deny visitation if necessary to protect the child's health, safety or welfare.

FN40.  Vega, in her supplemental brief, relies on two studies, Sonya J. Leathers, Parental Visiting and Family Reunification:  Could Inclusive Practice Make a Difference?, 81 CHILD WELFARE 595, 596, 606-07 (July 2002);  Appendix B and Inger P. David, John Landsverk, Rae Newton, & William Ganger, Parental Visiting and Foster Care Reunification, 18 CHILD & YOUTH SERV. REV., 363 (1996), Appendix C. The State's motion to strike Appendix B and C is granted.   The studies were not introduced below or considered by the trial court.  K.S.C., 137 Wash.2d at 932, 976 P.2d 113..  FN40.  Vega, in her supplemental brief, relies on two studies, Sonya J. Leathers, Parental Visiting and Family Reunification:  Could Inclusive Practice Make a Difference?, 81 CHILD WELFARE 595, 596, 606-07 (July 2002);  Appendix B and Inger P. David, John Landsverk, Rae Newton, & William Ganger, Parental Visiting and Foster Care Reunification, 18 CHILD & YOUTH SERV. REV., 363 (1996), Appendix C. The State's motion to strike Appendix B and C is granted.   The studies were not introduced below or considered by the trial court.  K.S.C., 137 Wash.2d at 932, 976 P.2d 113.

FN41.  Smith also challenges the trial court's finding that he was classified as a high risk to reoffend and did not have a stable lifestyle.   Bryan Stading, a Department of Correction's classification counselor, testified that Smith was at high risk to reoffend.   Smith began engaging in criminal activity and using drugs at age 13 and admitted that before his arrest, he was a marijuana dealer and regular heroin user.   Prior to his arrest, Smith and Vega had an unstable lifestyle and moved to others states to evade arrest. After Smith's release, he lived with his father, then his exwife, and was about to move into an apartment on his own.   The State was not able to verify whether he had adequately addressed his drug dependency.   At the time of trial, his actions to establish a stable lifestyle were so recent as to support the trial court's finding that Smith was likely to reoffend and did not have a stable lifestyle..  FN41.  Smith also challenges the trial court's finding that he was classified as a high risk to reoffend and did not have a stable lifestyle.   Bryan Stading, a Department of Correction's classification counselor, testified that Smith was at high risk to reoffend.   Smith began engaging in criminal activity and using drugs at age 13 and admitted that before his arrest, he was a marijuana dealer and regular heroin user.   Prior to his arrest, Smith and Vega had an unstable lifestyle and moved to others states to evade arrest. After Smith's release, he lived with his father, then his exwife, and was about to move into an apartment on his own.   The State was not able to verify whether he had adequately addressed his drug dependency.   At the time of trial, his actions to establish a stable lifestyle were so recent as to support the trial court's finding that Smith was likely to reoffend and did not have a stable lifestyle.

FN42. In re Ferguson, 32 Wash.App. 865, 869-70, 650 P.2d 1118 (1982).   Where additional services would be futile, clear cogent and convincing evidence supports a finding that reasonable services have been offered..  FN42. In re Ferguson, 32 Wash.App. 865, 869-70, 650 P.2d 1118 (1982).   Where additional services would be futile, clear cogent and convincing evidence supports a finding that reasonable services have been offered.

FN43. In re Dependency of K.R., 128 Wash.2d 129, 144, 904 P.2d 1132 (1995)..  FN43. In re Dependency of K.R., 128 Wash.2d 129, 144, 904 P.2d 1132 (1995).

FN44. RCW 13.34.180(1)(e)..  FN44. RCW 13.34.180(1)(e).

FN45. A.C., 123 Wash.App. at 249, 98 P.3d 89, citing In re Welfare of Hall, 99 Wash.2d 842, 851, 664 P.2d 1245 (1983), In re Dependency of T.R., 108 Wash.App. 149, 166, 29 P.3d 1275 (2001)..  FN45. A.C., 123 Wash.App. at 249, 98 P.3d 89, citing In re Welfare of Hall, 99 Wash.2d 842, 851, 664 P.2d 1245 (1983), In re Dependency of T.R., 108 Wash.App. 149, 166, 29 P.3d 1275 (2001).

FN46. RCW 13.34.180(1)(f)..  FN46. RCW 13.34.180(1)(f).

FN47. In re Dependency of J.C., 130 Wash.2d 418, 427, 924 P.2d 21 (1996)..  FN47. In re Dependency of J.C., 130 Wash.2d 418, 427, 924 P.2d 21 (1996).

FN48.  CP at 81-82. (emphasis omitted).  FN48.  CP at 81-82. (emphasis omitted)

FN49.  CP at 58..  FN49.  CP at 58.

FN50.  CP at 58..  FN50.  CP at 58.

FN51. RCW 13.34.190(1)(2)..  FN51. RCW 13.34.190(1)(2).

FN52. In re J.W., 90 Wash.App. 417, 427, 953 P.2d 104 (1998)..  FN52. In re J.W., 90 Wash.App. 417, 427, 953 P.2d 104 (1998).

FN53. RCW 13.34.020..  FN53. RCW 13.34.020.

SCHINDLER, J.