¹ VESiON 11 Mil MAY - 6 AM 8 : 28 STATE OF WASHIHGTON RY IN THE COURT OF APPEALS OF THE STATE OF WA ligTON. DIVISION II In re the Welfare of No. 44868 -8 -II A.B., STATE OF WASHINGTON, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Respondent, v. ORDER GRANTING MOTION TO PUBLISH Appellant. Appellant E.I. moves this court for publication of the unpublished opinion filed on April 1, 2014. The court having reviewed the record and files herein, now, therefore, it is hereby ORDERED that the final paragraph that reads, " A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is . so ordered." is deleted. It is further ORDERED that the opinion will now be published. DATED this T day of JI , , 2014. ACTING CHIEF JUDGE FILED COURT OF APP'EALS DIVISION II 2011-1 APR I AM 9: 2 ST E 0 WASHING IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In re the Welfare of No. 44868- 8- II A.B., STATE OF WASHINGTON, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Respondent, v. UNPUBLISHED OPINION . Appellant. JOHANSON, J. — E.I. is the mother of A.B. The juvenile court terminated E.I.'s parental rights to A.B. based on a finding that E.I. had cognitive impairments that would never allow her to parent A.B. on her own. We agree with E.I. that cognitive impairments . alone are not parenting deficiencies, and that the Department of Social and Health Services ( DSHS) failed to meet its burden to prove that E.I. is currently unfit to parent A.B. We reverse the juvenile court' s order terminating E. I.' s parental rights to A.B. and remand for further proceedings. No. 44868 -8 -II FACTS N.B.' s rights were terminated at the same time as E.I.' s. A commissioner of this court affirmed the order terminating N.B.' s parental rights, and a panel of this court denied his motion to modify the ruling. N.B., therefore, is not a subject of this appeal. A commissioner of this court also considered E.I.' s appeal on an accelerated basis under RAP 18. 13A, then referred the appeal for consideration by a panel of judges. because E.I. was very " wishy- washy" when making a decision about how to deal with the car she shared with N.B. after they separated. 1 RP at 66. Fourth, West believed that E.I. could not manage her time and schedule because she was late to visits on a couple of occasions due to a new work schedule. In her fmal report, West referenced two additional incidents which concerned her: ( 1) E. I. once took her older son, J. G.; to work with her fora 10 -hour shift, and 2) she asked permission to bring A.B. to J.G.' s birthday party which was scheduled for 7 PM. The only safety concern West identified during visits was one occasion when E.I. did not stop A.B. from running with a sucker in his mouth. West concluded that E.I. would not be able to care for A.B. as a single parent because she lacked decision - Although was emotionally immature and making and problem- solving skills. West testified that E.I. would probably be able to parent with her family' s support, she concluded that E.I.' s prognosis for improving her parenting skills was poor. Sinnett was E. I.' s assigned caseworker at. DSHS. Sinnett testified regarding the services provided to E. I. She stated that E.I. engaged in the drug and alcohol assessment, but there were no rioted drug or-alcohol issues: ""She also - testifiedthatslie-referred-E:I:to :individual counseling - at the " Center for Child and Family Therapy" but the service ended after three sessions because it was determined that E.I. did not have any clinically significant issues. The first parenting class Sinnett referred . E.I. to was " Parenting Children Who Witness Domestic Violence." E.I. attended and completed that parenting class. Then. Sinnett referred E.I. to " Nurturing Parenting" which E. I. began to and attend _ then dropped. Sinnett later referred E. I. to " Love and Logic" at the . Parenting Place." E. I. also completed Love and Logic. Finally, Sinnett referred E.I. to Nurturing Parenting again but E.I. did not attend. Sinnett stated that E.I. was originally ordered to do a parenting assessment, but that service was later changed to a neuropsychological evaluation. Sinnett changed the recommendation because ( 1) E. T. exhibited a "[ f]lat affect," ( 2) Sinnett would have to be very concrete and specific when discussing services with E.I., and ( 3) Sinnett would often have to E. I. to it later. 2 RP 10. Sinnett was write down what they discussed verbally so could refer at also concerned because E.I. would be positively engaged and then have some trouble following through " at other points in time." 2 RP at 14. When Sinnett received the neuropsychological evaluation, she did not refer E.I. to any additional services because there were no additional services recommended in the report. The other service E.I. was ordered to engage in was DV support services. E. I. was referred to the YWCA " ALIVE" DV program and began working with Brockman, an individual DV advocate. On cross -examination, Sinnett stated that she had no idea what other services might help E.I. E.I. asked Sinnett about additional hands -on parenting programs and Sinnett stated that parent -child interaction therapy and " Safe Care" were at least two additional hands -on parenting services: Sinnett clid- riot refer-Et - either. service because -she- had -referred- her-to- hands=on . - - to- parenting coaching with West. However she .did acknowledge that " Safe Care" could have been appropriate. Sinnett also supervised some of the visits between E. I. and A.B. During her testimony the only negative incident Sinnett testified•about was that on one occasion A.B. was coloring by scribbling with crayons and markers. E.I. tried to get him to color a picture and told him the fire truck should be red. Sinnett testified that this incident demonstrated that E.I. was demanding of A.B. beyond his developmental capability. Sinnett also testified that A.B. was doing very well, and meeting all of his developmental milestones. She opined that there was little likelihood E.I. would be able to remedy her parental deficiencies. And she testified that there were no adoption resources identified for A.B. and that the only identified potential placement being considered by DSHS was placement with one of A.B.' s paternal relatives. Sinnett opined that termination was in A.B.' s best interests. Brockman testified regarding her work with E.I. during the dependency. Brockman began working one -on -one with E.T. after she received the referral from DSHS in December 2011, but E.I. had already been attending support groups through the program. Initially, Brockman worked with E.I. on recognizing patterns of abusive relationships, identifying healthy relationships, and safety planning. During her work with E.I., Brockman never observed E.I. to be cognitively impaired nor did she observe any difficulty with E.I.' s comprehension of the topics they were discussing. Over time, Brockman observed E.I. make significant progress in understanding the harm of her relationship with N.B. Brockman also commended E.I.' s decision to separate from N.B. and make the conscious decision to maintain that separation. Brockman also-testified - thatE.I. had-.. decided iiot-to enter- into- any-relationships and to-- continue-working- with Brockman on identifying warning signs and unhealthy behavior so she would be safe if she entered into a new relationship in the future. Brockman explained the circumstances surrounding the car that concerned West. Brockman stated that the car was registered in E. I.' s name but it was used by N. B. E. I. retrieved the car from impound when N.B. was arrested and used the car while N.B. was incarcerated. Although the car was helpful to her in managing her schedule, E.I. felt uncomfortable keeping the car, so she returned the car to N.B.' s mother. After she returned the car, E.I. was able to purchase a vehicle of her own. Brockman also testified regarding West' s concern that E.I. brought J. G. to work with her during a 10 -hour shift at a galley on a Navy base. Contrary to West' s understanding, E.I. had J. G. with her during a day off when E.I.' s boss called her and asked if she could cover for some people who had not shown up at work. E.I. made sure that it was acceptable to bring J. G. and that there was a safe place for him to stay while she worked. There was an office with a Naval officer present where J. G. could watch television or videos, so E.I. brought him to work with her. E.I.' s boss was able to relieve her after approximately two hours. Brockman noted that E.I. also had unsupervised visitation with J. G. Although J. G.' s father was the primary residential parent, E.I. was able to take J. G. places unsupervised and sometimes J. G. spent nights at E. I.' s home. In addition, Brockman testified regarding E.I.' s housing situation. She explained that when E.I. originally separated from N.B., she was living in an apartment that was paid for based on their combined incomes. When she was living alone, she could no longer afford the apartment and bills on her individual income. During the same period, E.I. was briefly Tiirloughed" from-lierjobandwithout steadyincomehe=was-unable-toTibtaiihaisng=asszstarice:- . - Due to her financial situation, E.I. chose to move in with her parents. Brockman testified that she had visited the apartment at the time E.I. was living alone and the apartment was well taken care of and E. I. did not appear to have any problem living on her own. It was only E.I.' s financial situation at the time, primarily a result of her decision to end her abusive relationship with N.B., which caused her to leave the apartment and move in with her parents. Brockman also observed that E.I. was very self-sufficient in pursuing resources that may offer her housing assistance and was resourceful enough to seek out that assistance on her own. with people with learning disabilities, Wetzel did not believe that E.I. had a learning disability that impeded her ability to function independently. E. I. introduced many reports created by the visit supervisors. According to the visitation notes, the visits between E.I. and A.B. were positive. E.I. played wiih A.B. on push cars; bikes, and wagons. They colored and played with Play -Doh. E.I. talked to A.B., asked him questions, and helped him identify lots of toys with words. A.B. clearly liked cars, so E.I. often picked him up and held him so he could look out the window and watch the cars drive by. E.I. responded to A.B.' s cues such as fussing or acting tired, and she was able to redirect any inappropriate behavior. The visitation reports demonstrate that E.I. regularly responded to safety concerns appropriately. Neither of the incidents that West or Sinnett identified as problematic was in the visitation reports submitted into evidence. E.I. testified that it was a hard decision for her to leave N.B. because they were a family but it was a positive decision. E.I. also explained that she and Brockman had developed a safety plan so E.I. knew exactly what to do if N.B. became a danger to her or her children. E.I. testified that she currently .. lived withkiex parentg'-for-finaric al=reasons- but - hen - ire- was— w s able to; -sh• - would seek her own apartment. She also stated that her parents were a good resource and support for her, as well as her best friend who also had children. When asked what she would do if the termination petition was dismissed and the dependency continued, E.I. responded, My plan is for my child to be home and returned to me and at least give me the chance to work in - ome dependency; because obviously since I' ve been working h with them for these past two years or whatnot, obviously they must not know who I am and what I' m capable of, what I' m capable of doing, or what I can do for myself and my child. 2 RP at 94. E.I. also agreed she would continue participating in services if necessary. A.B.' s court- appointed special advocate ( CASA). stated that she believed E.I.' s parenting deficiencies were difficulty making decisions and perceiving the needs of a child at different ages. The CASA stated that she believed termination was in A. B.' s best interests. She also noted that DSHS was investigating a placement with a paternal relative. At the conclusion of the fact - fmding hearing, the juvenile court made an oral ruling terminating E. I.' s parental rights as to A.B. The juvenile court stated, "[ I]t literally makes me sick to have to terminate her parental rights. because she' s a kind, good, sweet person who has neurological deficits, the type of thing that can' t be really cured by a course of therapy." 2 RP at 175- 76. The juvenile court specifically found that E. I.' s witnesses testified " truthfully and accurately," but that E.I.' s cognitive impairments resulted in a lack of judgment and insight as it related to the subtle needs of children. 2 RP at 176. The juvenile court also entered written findings of fact and conclusions of law. The juvenile court found E.I. to be currently unfit because her cognitive impairments prevented her from making intuitive judgments, grasping child development, perceiving subtle dangers to eliifidren; understariding the -impact - f-things- onchildren; =r-communicating- effectively-withher o o child. The juvenile court also found that there were no services that could be offered to E.I. because her cognitive impairments could not be changed. The juvenile court concluded that DSHS proved the statutory requirements for termination by clear, cogent, and convincing evidence, and that termination was in the best interests of the child. The juvenile court entered an order terminating E.I.' s parental rights to A.B. E.I. appeals. ANALYSIS E.I. argues that the juvenile court erred by finding that DSHS proved all the statutorily required factors for termination by clear, cogent, and convincing evidence. Specifically, she argues that DSHS failed to prove ( 1) that all necessary services reasonably capable of correcting her parenting deficiencies were expressly and understandably offered or provided, ( 2) that she was currently unfit to parent A.B., ( 3) that there was little likelihood that conditions would be remedied such that A.B. could be returned to E.I. in the near future, and ( 4) that continuation of the parent and child relationship clearly diminished.A.B.' s prospects for early integration into a stable and permanent home. Because we hold that DSHS failed to meet its burden to prove that E.I. was currently unfit to parent A.B., we do not address the remaining issues E.I. raises on appeal. The juvenile court may terminate a parent' s rights as to his or her child if DSHS establishes by clear, cogent, and convincing evidence that the parent is currently unfit. In re . Welfare ofA.B., 168 Wn.2d 908, 925, 232 P. 3d 1104 ( 2010). The juvenile court must also find that DSHS " proven sixfactors byclear, cogent; and - " has - convincing-evidence: a) [ t] hat 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 conditions 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 [ DSHS] makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided[; 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. Former RCW 13. 34. 180( 1)( a) -( f) 2009); A.B., 168 Wn. 2d ( at 911. Then, DSHS must prove by a preponderance of the evidence that termination of parental rights is in the child' s best interests. RCW 13. 34. 190( 1)( b). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown to be "' highly probable.'" In re Sego, 82 Wn.2d 736, 739, 513 P. 2d 831 ( 1973) ( quoting Supove v. Densmoor, .225 Or. 365, 372, 358 P. 2d 510 ( 1961)). We will not disturb the juvenile court' s findings of fact if they are supported by substantial evidence. Sego, 82 Wn.2d at 739. Substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth of the declared premise. Bering v. SHARE, 106 Wn.2d 212, 220, 721 P. 2d 918 ( 1986), cert. dismissed, 479 U.S. 1050 ( 1987). "[ E] vidence that may be sufficiently ` substantial' to support an ultimate-fact -in issue based upon a "`preponderance -of-the- evidence'- may-not-be -sufficient to - support an ultimate fact in issue, proof of which must. be established by clear, cogent and . convincing evidence." Sego, 82 Wn.2d at 739 ( footnote omitted). We do not make credibility determinations or weigh evidence. Sego, 82 Wn.2d at 739 -40. CURRENT UNFITNESS Identifying parenting deficiencies is not the equivalent of proving parental unfitness. In re Dependency of Schermer, 161 Wn.2d 927, 943, 169 P. 3d 452 ( 2007) ( citing In re Welfare of KK, 119 Wn.2d 600, 609, 836 P. 2d 200 ( 1992), cert. denied, 507 U.S. 927 ( 1993)). A dependency determination requires a showing of parental deficiency by a mere preponderance of the evidence. Schermer, 161 Wn.2d at 942. Under RCW 13. 34. 030( 6), a child is a dependent child if the child ' a) [ h] as been abandoned; b) Is abused or neglected ...; 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. Dependencies are subject to a " relatively lenient preponderance standard" because dependencies serve " the important function of allowing state intervention in order to remedy family problems and provide needed services." Schermer, 161 Wn.2d at 942. A dependency finding under RCW 13. 34. 030( 6)( c) need not be based on proof of actual harm, but instead can rely on a danger of harm to the child. Schermer, 161 Wn.2d at 951. A juvenile court has broad discretion in determining when there exists a risk of harm. Schermer, 161 Wn.2d at 951. But "[ a] dependency proceeding and a termination proceeding have different objectives, statutory requirements, and safeguards." KK, 119 Wn.2d at 609 ( citing In re Hiebert, 28 Wn. App. 905, 908, 627 P. 2d 551 ( 1981)). While identifying parenting deficiencies is sufficient to support 'a-dependency; it -s -unconstituti- nal- to- permanently terminate-a-parent' s -rights without a- - -- i o finding of unfitness. KK, 119 Wn.2d at 609. Further, DSHS is held to the higher burden of proving current unfitness in a termination proceeding by clear, cogent, and convincing evidence, rather than the more lenient preponderance of the evidence standard applied in dependency proceedings. RCW 13. 34. 190( 1)( a)( i). Therefore, a finding of current unfitness requires more than the determination that DSHS has proved, by a preponderance of the evidence, that a parenting deficiency exists, as in a dependency proceeding. See RCW 13. 34. 030( 6); Schermer, 161 Wn.2d at 943. To meet its burden to prove current unfitness in a termination proceeding, DSHS is required to prove that the parent' s parenting deficiencies prevent the parent from providing the child with " basic nurture, health, or safety" by clear, cogent, and convincing evidence. See RCW 13. 34. 020; see also ii) (parent has that " the parent generally former RCW 13. 34. 180( 1)( e)( a condition render[ s] incapable of providing proper care for the child for extended periods of time or for periods of Here, the juvenile court made the following factual finding regarding the parenting deficiencies that rendered E.I. currently unfit: E.I.] has neurological and cognitive deficits that do not allow her parent to [ sic] the child. Because of these deficits, she cannot make the intuitive judgments that parents have to make. She is not able to grasp child development, and while she is able to perceive obvious dangers to herself, she is unable to perceive the subtle dangers that impact children. She cannot understand the impact and effect things have on children, or communicate effectively with the child. Clerk' s Papers. at 57. The trial court relied on this finding to conclude that DSHS had met its burden to prove that E. I. was currently unfit to parent A.B. - The juvenile court' s findings of fact are not supported by evidence substantial enough to support the conclusion that the DSHS met its burden to-prove - current unfitness by-clear; - ogent; and - onvincing evidence. - c c

² We also note that . third party custody statutes place " a high threshold burden on a petitioner the seeking noriparental custody." In re Custody of B.MH., 179 Wn.2d 224, 235 -36, 315 P.3d 470 2013). To meet this heightened standard, a party seeking to interfere with a parent' s liberty interest in the custody of her children must show that the parent is either unfit or custody with the parent would result in actual detriment to the child' s growth and development. H., 179 B. M. Wn. 2d at 235. For the purposes of nonparental custody, our Supreme Court has stated, " A parent is unfit if he or she cannot meet a child' s basic needs." B.M.H., 179 Wn.2d at 236 ( citing RCW 26. 44. 010); see also generally In re Aschauer, 93 Wn.2d 689, 694, 611 P. 2d 1245 ( 1980) ( "[ the mother] lacks the necessary capacity for giving parental care ").