“No … Rule Required [Mother to Comply with Social Services Orders] with a Smile on Her Face”

From In re D.R. (Wash. Ct. App. Oct. 15, 2013) (nonprecedential) (some paragraph breaks added, some removed):

B.R. gave birth to a son, D.R., on December 10, 2006. Just before D.R.’s second birthday, Department of Social and Health Services (DSHS) removed him from B.R.’s care and initiated a dependency proceeding after a neighbor reported seeing the child’s uncle dangle him by the leg over a second story balcony. [Footnote: The uncle is the brother of Ms. B.R.’s eldest child’s father, and not actually related by blood or marriage to Ms. B.R. or D.R.]

The incident happened while B.R. was in the kitchen cooking and asked the uncle to hold D.R. so he would stop crying. When B.R. saw the uncle holding her son over the balcony, she ran over, grabbed D.R., and severely scolded the uncle.

Despite the uncle’s egregious conduct, and despite an agreement with DSHS to remove the uncle, B.R. did not ask him to move out. The uncle did move out for a time, but B.R. let him return not long after he moved out. B.R. explained that she did not force the uncle out because she did not believe that he posed an ongoing risk to D.R…. The situation resolved itself during the dependency when the uncle moved out and B.R. cut off all contact with him.

B.R. was required, as a condition of getting her child back, that she complete various evaluations, classes, and counseling sessions, all of which she completed successfully….

Despite this success, the trial court found that B.R. still remained unfit because:

The mother is currently unfit to parent this child because she continues to minimize the dangerous behavior of the uncle that was the reason that brought the child into foster care.

Even though the mother has complied with all services ordered by the court, her attitude and behavior have not changed sufficiently for the child to be placed with her.

The mother continues to behave in a hostile and belligerent manner toward the Department and service providers.

Two psychologists diagnosed the mother as having a personality disorder, a diagnosis that is consistent with her behavior and that is not likely to change in response to services.

The … psychologists … found that B.R. suffered from an Axis II severe personality disorder, not-otherwise-specified. The disorder manifested itself in particular with the way that B.R. interacted with DSHS staff. The personality disorder and B.R.’s bad attitude in turn caused these providers to conclude in their written reports that B.R. was not likely to succeed in all of her court-ordered services, which in turn made reunification within the near future unlikely. However, when informed at trial that B.R. had successfully completed the assigned services, both experts changed their opinions concerning her amenability to treatment….

In order to terminate the parent-child relationship, one of the factors the State must prove by clear, cogent, and convincing evidence is that “there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future.” … Because the record does not contain clear, cogent, and convincing evidence linking the conditions identified in Finding of Fact 2.14 to Ms. B.R.’s ability to parent, we reverse….

[As to the uncle incident, w]e do not believe that a one-time mistake by a nonparent, who DSHS did not deem dangerous enough to investigate, can support the termination of a mother’s constitutional right to raise her child. There are cases where parents’ rights to their children can be terminated because of the parent’s failure to recognize and mitigate the risk posed by a nonparent relative, but this is not one of those cases.

Instead, DSHS failed to introduce any evidence that the uncle presented an ongoing risk to D.R. that needed to be abated…. Here, the record establishes nothing about the uncle’s dangerousness outside of this one-time incident. While this incident justified the filing of the emergency shelter care order and initiation of the dependency, it alone was not sufficient to justify termination of B.R.’s parental rights….

The second and third conditions identified by the trial court are tied together. The second condition stated: “Even though the mother has complied with all services ordered by the court, her attitude and behavior have not changed sufficiently for the child to be placed with her.” The third condition stated: “The mother continues to behave in a hostile and belligerent manner toward the Department and service providers.” …

B.R.’s attitude and distrust of DSHS are not proper bases for termination…. While B.R. had a duty to comply with all ordered services, no statute or rule required her do so with a smile on her face.

The final condition identified by the trial court was: “Two psychologists diagnosed the mother as having a personality disorder, a diagnosis that is consistent with her behavior and that is not likely to change in response to services.” Accepting this finding as true, it too fails to support the trial court’s order terminating parental rights…. [T]he mental health professionals testified … did not find that [the] personality disorder in and of itself put D.R. at risk or made B.R. inattentive to D.R.’s needs….