IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of No. 83810-5-I (consolidated with M.L.W and I.A.W., No. 83811-3-I)

PUBLISHED OPINION Minor Children.

MANN, J. — T.W. appeals a trial court order terminating her parental rights to two

of her children, I.A.W. and M.L.W. T.W. argues that (1) the Department of Children,

Youth, and Families (Department) failed to provide family therapy as a necessary

service, (2) the Department failed to prove continuation of T.W.’s parental rights

diminished I.A.W. and M.L.W.’s integration into a stable home, and (3) the trial court

erred in denying her older child, M.W.’s, motion to intervene. We affirm.

I

A

T.W. has three children: her son, M.W., was born in 2006, her daughter, I.A.W.,

was born in 2011, and her other daughter, M.L.W., was born in 2014. M.W. and I.A.W.

have no father listed on their birth certificate. It is unknown whether M.L.W. has a father No. 83810-5-I/2

listed on her birth certificate. The children are not Indian children as defined in RCW

13.38.040 and

(4), and the federal and state Indian Child Welfare Acts

do not apply.

The family has been involved with child welfare agencies based on allegations of

negligent treatment and T.W.’s substance use since 2006. This is T.W.’s third

dependency case. 1

In August 2018, the Department filed a dependency petition because of the

family’s Child Protective Services history and recent reports that detailed the children

being left unattended at a park, visiting a neighbor’s home and asking for food, and

being found stealing and unattended at a grocery store. The children also witnessed a

physical altercation between T.W. and her partner that M.W. intervened in, and M.L.W.

was burned by hot oil in an unattended pan. The Department placed the children in

licensed foster care, where they remained throughout the dependency. Agreed orders

of dependency were entered on March 11, 2019.

Throughout the dependency, T.W. was ordered to participate in a psychological

evaluation and agreed service recommendations, substance abuse evaluation and

treatment, urinalysis testing (UA), and in-home services if reunification was imminent.

In late 2019, T.W. completed a psychological evaluation with Dr. Tatyana Shepel,

a clinical psychologist with a specialty in neuropsychology. At both evaluation sessions,

T.W. was under the influence of substances and displayed drowsy behavior and slurred

speech. Dr. Shepel diagnosed T.W. with depression, anxiety disorder, and a

1 In 2006, the first dependency was filed but was dismissed soon after when T.W. promised to

return to Arizona and rely on the support of family members living there. In 2011, the second dependency was filed and lasted one year but was dismissed in 2012 after T.W. completed substance abuse treatment.

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personality disorder. Dr. Shepel recommended treating T.W.’s mental health along with

her substance use. But Dr. Shepel found T.W. not amenable to treatment because she

had an outright denial of problems and did not understand the need to change.

In December 2019, the Department filed a termination petition, alleging that T.W.

was not engaged in substance abuse treatment and that she had not complied with Dr.

Shepel’s recommendations.

In March 2020, T.W. entered Seadrunar, an inpatient substance abuse treatment

program, after her first social worker, Natasha Utevsky, helped her find the program.

Days before the Department’s final reunification planning meeting, T.W. violated a

serious rule at Seadrunar by engaging in an intimate relationship with another

participant. As a result, the reunification plan fell through. T.W. claimed that she was

discriminated against and that they didn’t place her children with her, so she left

Seadrunar.

After T.W. left Seadrunar, social worker Rachael O’Riordan referred T.W. to

Navos for substance abuse and mental health treatment. At Navos, T.W. had a positive

UA, which increased the intensity of treatment. T.W. tested positive for

methamphetamine, cocaine, and cannabis. From April to August 2021, T.W. denied her

drug testing results.

At the request of T.W.’s Office of Public Defense social work team, in April 2021,

social worker Colleen Stark-Bell referred T.W. to chemical dependency provider

Shundra King at For The Culture for substance abuse treatment. King started T.W. with

outpatient treatment, but increased that to intensive outpatient treatment after receiving

positive UA results. King found that T.W. had a disconnect when she began addressing

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T.W. about her positive UAs. But King finally convinced T.W. that inpatient treatment

was necessary. The termination trial had begun in October 2021, but it was paused to

allow T.W. to enter inpatient treatment. T.W. completed the inpatient program at

Turning Point.

Substance use disorder counselor Joshua Sweet testified that although T.W.

gained skills in inpatient treatment, she needed a year in outpatient treatment to

succeed in recovery. T.W. was set to resume intensive outpatient treatment with King

after Turning Point, but she did not come back. T.W. also did not participate in UA

testing. Because T.W. was not participating in intensive outpatient treatment, King

could not give a complete prognosis for T.W.

Just as King started as T.W.’s substance abuse counselor, Trenecsia Wilson

became her mental health counselor. Wilson found that T.W. had an underlying issue

of guardedness and minimizing that led her to have continuous issues. After Wilson

reached out to schedule more sessions, T.W. did not return.

T.W. had a strong bond of affection with her children. The family had regular

visits up to 12 hours each week. However, as the dependency went on, emotions

during the visits escalated because the children were still living in foster care despite

T.W.’s claim that she was doing everything she needed for them to return to her. The

children showed both emotional and physical reactions to T.W.’s unfulfilled promises.

I.A.W. would lose control of her bladder. M.L.W.’s confusion led her to believe that

removal was her fault and that if she had been a “better kid,” she could go home with

T.W. I.A.W. and M.L.W. were in therapy during the dependency. Joan Freeman, I.A.W.

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and M.L.W.’s guardian ad litem (GAL), testified that if the dependency were to continue

for another year, it would decrease the children’s sense of security and stability.

To help her understand I.A.W. and M.L.W.’s needs, and how she could meet

them as a parent, social worker Stark-Bell referred T.W. to Lauren Brown, a therapist

that provides in-home services. Brown oversaw T.W.’s completion of the Triple P

parenting education service. Brown concluded that T.W. had basic parenting skills. But

Brown remained concerned about the dynamic between T.W. and her children because

T.W. continued to deny her substance use.

Brown recommended family therapy for T.W., I.A.W., and M.L.W. Stark-Bell did

not, however, make the referral because, after consulting Christine Patuvak, I.A.W. and

M.L.W.’s therapist, Stark-Bell determined that family therapy would not be appropriate

for T.W. at that time because T.W. was still not admitting to substance use despite

positive testing results.

B

The original termination filing involved all three children. But by the time of trial

M.W. was 15 years old, and under RCW 26.33.160(1)(a) he had to agree to adoption. 2

On October 13, 2021, M.W.’s termination petition was dismissed after he did not agree

to adoption.

On October 18, 2021, the Department and the court appointed special advocate

(CASA) filed a joint pretrial motion requesting that M.W. not be allowed legal

participation in the trial. In response, M.W. argued that he should be allowed to

intervene to address the sibling relationship and the best interests of his sisters. The

2 RCW 26.33.160(1)(a) requires the consent of the adoptee if they are 14 years of age or older.

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Department and CASA argued that M.W. did not have a legal interest in his siblings’

cases.

The trial court denied M.W.’s motion to intervene. The trial court found that

M.W.’s intervention request was much like that of the older siblings in In re Dependency

of J.D.P.,

,

(2021). The trial court determined that, as

in J.D.P., M.W.’s interests in ongoing contact with his siblings are considered in

dependency and adoption proceedings, so they are not properly considered in the

termination proceeding.

The trial court also denied permissive intervention. The trial court found that

M.W. had not shown a common question of law or fact that would support permissive

intervention. The termination trial went forward without M.W.’s participation.

The termination trial lasted 24 days between October 2021 and February 2022.

Seventeen witnesses testified at the trial and over 200 exhibits were admitted into

evidence. The trial court found that despite numerous services and programs offered to

T.W., she had not progressed in her core parental deficiencies of substance abuse and

mental health. The trial court also observed that T.W. was still in denial and not being

honest with herself or the court when it came to her substance use and substance use

disorder. Given this, the trial court did not believe that T.W. could successfully remedy

her substance abuse in the near future for her children. The trial court also found that

family therapy was not a necessary service because reunification was not imminent.

On February 18, 2022, the trial court terminated T.W.’s parental rights to I.A.W. and

M.L.W.

T.W. appeals.

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II

An appellate court’s role in reviewing a trial court’s decision to terminate parental

rights is to determine whether substantial evidence supports the trial court’s findings of

fact by clear, cogent, and convincing evidence. In re Parental Rights to K.M.M.,

,

(2016). Evidence is substantial if, when viewed in the

light most favorable to the prevailing party below—here, the Department—it is such that

a rational trier of fact could find the fact in question by a preponderance of the evidence.

In re Dependency of M.P.,

,

(1994). Termination

proceedings are highly fact-specific and, as such, deference to the trial court is

particularly important. In re Welfare of Hall,

,

(1983).

We defer to the trial court’s determinations of witness credibility and the persuasiveness

of the evidence and will not disturb those findings unless clear, cogent, and convincing

evidence does not exist in the record. In re Dependency of K.R.,

,

(1995). We review whether the trial court’s findings of fact support its

conclusions of law de novo. K.M.M.,

.

A

T.W. argues that family therapy was a necessary service because the service

would have helped the entire family understand the impact of T.W.’s substance abuse

and communicate openly and honestly. We disagree.

RCW 13.34.180(1)(d) requires a petition seeking termination of a parent and

child relationship to include a provision of ordered and necessary services. Family

therapy was neither ordered nor necessary for T.W. Court-ordered services for T.W.

included substance abuse treatment, mental health counseling, and parent education.

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Family therapy was not included in ordered services and T.W. does not argue

otherwise.

Family therapy was also not a “necessary” service as that term is used in RCW

13.34.180(1)(d) because necessary services are those which are “needed to address a

condition that precludes reunification of the parent and child.” K.M.M.,

(internal quotation omitted). T.W. could have reunified with M.L.W. and I.A.W. if

she could have achieved stability in sobriety and addressed her mental health issues.

Because she did not, T.W. could not reunify with M.L.W. and I.A.W. and family therapy

was largely irrelevant.

Family therapy was also not necessary for reunification because, according to

Brown, T.W. did have basic parenting skills. The reason Brown suggested family

therapy was to deepen the relationship between T.W. and her children and address the

trauma caused by T.W.’s denial of issues despite the children not being returned home.

But if she were sober and stable in her mental health, Brown testified that T.W. could

meet the basic needs of her children for food, shelter, hygiene, and attention.

Refinement of the parent-child relationship was to assist in making a transition

successful, not to help make it happen. As the trial court noted, in-home services were

ordered to begin when return home was “imminent,” and at the time of termination, that

was far off.

T.W. claims that social worker Stark-Bell’s delay of family therapy was an abuse

of power and in disregard of therapist Brown’s recommendation. But the trial court

weighed the testimony of many individuals, including Brown, in concluding family

therapy was not a necessary service to achieve reunification. Brown called family

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therapy a “make or break” service for a reunification that was not on the horizon at the

time of termination. Every provider who worked with T.W., including Brown and T.W.’s

substance abuse and mental health counselors, agreed that T.W.’s denial of issues and

lack of sobriety impeded her functioning. When termination was ordered, T.W. was not

in substance abuse treatment and was not providing UAs.

The trial court did not err in concluding that family therapy was not an ordered or

necessary service under RCW 13.34.180(1)(d).

B

T.W. argues that termination of her parental rights was not necessary for I.A.W.

and M.L.W.’s integration into a permanent home because the children were well

adjusted in their long-term foster home while maintaining a strong and loving bond with

T.W. We disagree.

RCW 13.34.180(1)(f) requires the Department to establish by clear, cogent, and

convincing evidence that continuation of the parent-child relationship diminishes the

children’s prospects for early integration into a stable and permanent home. In re

Dependency of A.M.F.,

, 417,

(2023). The Department can

prove this element by establishing either that: (1) the parent-child relationship prevents

the child from placement in an existing permanent home or (2) the parent-child

relationship has a damaging and destabilizing effect on the child that would negatively

impact the child’s integration into any permanent and stable placement. In re Welfare of

R.H.,

,

(2013). The Department proved, and the

trial court found, that both alternative ways of demonstrating this element had been met.

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T.W. claims that because the children were in a stable placement at the time of

the termination, and could remain there without change while the dependency

continues, RCW 13.34.180(1)(f) cannot be shown. T.W.’s claim has been rejected

repeatedly. For example, in In re Dependency of A.D.,

,

(2016), the mother suffered from depression and her children were placed in

foster care. The mother argued that because her children were already in a stable

placement, maintaining her legal relationship to them had no impact. A.D.,

. While the trial court agreed with the mother, this court reversed concluding

that RCW 13.34.180(1)(f) was satisfied where the Department demonstrated that, but

for the legal relationship between the parent and children, there was a high probability

that the children could find a permanent adoptive home. A.D.,

(citing R.H.

; see also In re Dependency of A.C.,

,

(2004)); A.M.F., 1 Wn.3d at 418 (RCW 13.34.180(1)(f) satisfied where

without the termination of parental rights, the child would not be eligible for adoption).

Substantial evidence supports the trial court’s finding that M.L.W. and I.A.W. are

together in a long-term placement that will be their adoptive home, and that adoption

cannot be final without termination.

The Department also proved that the parent-child relationship has a damaging and

destabilizing effect on the children that would negatively impact the children’s

integration into any permanent and stable placement. When a parent’s interactions with

a child make that child emotionally unstable so that they cannot integrate into another

home, RCW 13.34.180(1)(f) is satisfied. In re Dependency of K.D.S.,

,

(2013). I.A.W. and M.L.W. showed both emotional and physical

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reactions to T.W.’s unfulfilled promises as the dependency continued. I.A.W. would

lose control of her bladder and M.L.W.’s confusion led her to believe that removal was

her fault. I.A.W. and M.L.W. were in therapy during the dependency, and the children’s

GAL testified that if the dependency were to continue for another year, it would

decrease the children’s sense of security and stability. Even though her children felt

insecure and unstable, T.W. continued to deny her substance use and failed to

participate in further treatments.

The trial court did not err in concluding that RCW 13.34.180(1)(f) was satisfied.

C

T.W. argues that she was entitled to have the court consider a guardianship

under recent 2022 amendments to RCW 13.34.180(1)(f) requiring the court to consider

whether a guardianship is available. We disagree.

Effective June 9, 2022, the legislature amended RCW 13.34.180(1)(f). Under the

amended statute, when determining whether the continuation of the parent and child

relationship clearly diminishes the child’s prospects for early integration into a stable

and permanent home, the court must consider “the efforts taken by the [D]epartment to

support a guardianship and whether a guardianship is available as a permanent option

for the child.”3

Courts generally presume that statutes apply prospectively unless the legislature

expresses a contrary intent. In re Marriage of Hawthorne,

,

(1988). There is an exception for remedial statutes where retroactive

application would further its remedial purpose. Hawthorne,

. A

3 See In re Dependency of G.C.B., No. 84772-4-I, slip op. at 15 (Wash. Ct. App. Sept. 11, 2023).

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statute is remedial and has retroactive application when it relates to practice, procedure,

or remedies and does not affect a substantive or vested right. Hawthorne,

.

The amendment to RCW 13.34.180(1)(f) was not effective until after the trial

court terminated T.W.’s parental rights. As a result, there is nothing in the record before

us to suggest that a guardianship was available or that a petition for guardianship had

been filed. T.W. argues that the 2022 amendments to RCW 13.34.180(1)(f) are

remedial in nature and thus apply retroactively because the appeal is pending. But it

appears the 2022 revision of RCW 13.34.180(1)(f) is not remedial because it creates a

new right of action in favor of T.W. by requiring the court to consider whether the

Department affirmatively made efforts to “support a guardianship,” and whether a

guardianship is available as a permanent option before terminating her parental rights.

Because the amended statute is not remedial, it does not apply retroactively.

III

A

T.W. argues that the trial court erred in denying M.W.’s motion to intervene as a

matter of right. We disagree.

Civil Rule 24 governs motions to intervene in dependency and termination

proceedings. J.D.P., 17 Wn. App. 2d at 762. A party seeking intervention as a matter

of right must establish that (1) the application for intervention was timely, (2) the

applicant claims an interest which is the subject of the action, (3) the applicant is so

situated that the disposition will impair or impede the applicant’s ability to protect the

interest, and (4) the applicant’s interest is not adequately represented by existing parties

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to the litigation. J.D.P., 17 Wn. App. 2d at 762. Denial of a motion to intervene as a

matter of right is reviewed for error of law. J.D.P., 17 Wn. App. 2d at 762. The parties

do not dispute that M.W. timely moved for intervention. Thus, we address the three

remaining factors in turn.

First, M.W. cannot claim an interest which is the subject of the action because

siblings do not have a right to be involved in a termination proceeding of a parent and

another sibling. This court determined in J.D.P. that siblings of a dependent child,

although they may have strong feelings about their contacts with that child, have no

legal interest beyond what is found in dependency statutes for limited contact facilitation

by the Department. 17 Wn. App. 2d at 762. We held that siblings do not have a legal

right to intervene at termination:

While certainly the older siblings may have a natural interest in the fate of their younger siblings, as discussed above, the [Juvenile Court’s Act ch. 13.34 RCW] focuses on the interests of siblings in dependency and placement proceedings, not in termination proceedings. There is already a forum for the older dependent siblings to address their relationships with the younger siblings: their own dependency proceedings. A dependent child’s contact with siblings is addressed in the statutes describing dependency procedures, not termination procedures.

J.D.P., 17 Wn. App. 2d at 762.

This case is factually consistent with J.D.P. because M.W. is in the same position

as that of the older siblings in J.D.P. In J.D.P., the mother had four children. 17 Wn.

App. 2d at 749. Because of the mother’s substance use disorder, the Department filed

for termination of parental rights to the younger siblings while they were placed in foster

care. J.D.P., 17 Wn. App. 2d at 751-52. The older siblings moved to intervene in the

termination proceeding of their younger siblings. J.D.P., 17 Wn. App. 2d at 752. But as

explained above, the court denied intervention as a matter of right because “a

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dependent child’s contact with siblings is addressed in the statutes describing

dependency procedures, not termination procedures.” J.D.P., 17 Wn. App. 2d at 762.

Like the mother in J.D.P., T.W. had three children. Because of T.W.’s substance

use disorder, the Department placed I.A.W. and M.L.W. in foster care and filed for

termination of parental rights. M.W. was the oldest sibling and he sought to intervene in

the termination proceeding. Thus, like the holding in J.D.P., M.W. did not have a legal

interest beyond what is found in dependency statutes.

Even if M.W. had a right to intervene in his sisters’ termination proceeding, it is

not T.W.’s right to argue. M.W. could have appealed the trial court’s order denying his

intervention and prohibiting his legal participation in his sisters’ termination proceeding.

See, e.g., Westerman v. Cary,

,

(1994) (a

prosecutor appeals the superior court’s denial of his motion to intervene). T.W. lacks

standing to argue M.W.’s alleged constitutional right.

Second, the disposition will not impair or impede M.W.’s ability to protect his

interest because he had other avenues to participate in the termination trial if he wished

to. Even though the trial court denied M.W.’s motion to intervene as a matter of right,

the Department and CASA’s joint motion suggested that M.W. could participate in the

termination trial by providing testimony or a declaration. M.W. chose not to do so.

Further, while T.W. claims that M.W. and his sisters’ legal relationship is not

protected absent a separate legal agreement, the evidence showed that M.W. was

having liberal visits with his sisters at his discretion. Stark-Bell testified that I.A.W. and

M.L.W.’s foster parents even offered to be the caregivers to M.W. to facilitate his bond

with his sisters, but M.W. preferred to remain where he was. Thus, while T.W.’s claim

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that M.W.’s right to see his sisters cannot be forced upon his sisters’ adoptive family

absent a legal agreement is legally correct, as a factual matter, the adoptive family was

supportive of M.W. maintaining his bond with his sisters.

Third, M.W.’s interest is adequately represented by existing parties to the

litigation because all the parties involved in the termination proceeding are legally

represented. M.W. was 15 years old and he did not agree to adoption; therefore, his

termination petition was dismissed. Thus, only I.A.W. and M.L.W. were subject to the

termination petition. I.A.W., M.L.W., and T.W. were legally represented. There was no

interest not being represented.

The trial court did not err in denying M.W.’s motion to intervene as a matter of

right.

B

T.W. argues that the trial court erred in denying M.W.’s permissive intervention

because T.W. and M.W. shared an interest in maintaining a legally binding family

relationship with I.A.W. and M.L.W. We disagree.

Under CR 24(b)(2), a trial court may grant permissive intervention where the

applicant’s claim and the main action have a question of law or fact in common. J.D.P.,

17 Wn. App. 2d at 763. “The decision of a trial court to allow or deny permissive

intervention in a dependency is within the court’s informed discretion and will not be

disturbed absent an abuse of discretion.” J.D.P., 17 Wn. App. 2d at 763. A trial court

abuses its discretion when no reasonable person would take the position taken by the

trial court. J.D.P., 17 Wn. App. 2d at 763.

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T.W. and M.W. did not have a shared interest in maintaining a family relationship

with I.A.W. and M.L.W. As the Department correctly points out, T.W. was not a crucial

connector between the siblings. So, the relationship between M.W. and his siblings was

not relevant to whether termination was in the children’s best interests.

The trial court did not err in denying permissive intervention.

C

T.W. argues in the alternative that M.W. has a constitutional right to family

integrity that entitled M.W. to intervene. We disagree.

T.W. bases her constitutional argument on her claim that M.W. has a right to

“family integrity” which she describes as applicable in sibling to sibling relationships.

T.W. cites Santosky v. Kramer,

,

,

(1982), which held that termination matters should be decided based on clear, cogent,

and convincing evidence. The quote T.W. relies on addresses the interest that: “[T]he

child and his parents share . . . in preventing erroneous termination of their natural

relationship.” Santosky,

. But the right expressed in Santosky is

expressed in the singular—the right the child and his parents share. Santosky does not

address a right between siblings or one sibling’s right to have a say over another

sibling’s relationship with their parents.

T.W. also cites In re Dependency of MSR,

,

(2012), in

support of her claim that Washington recognizes a due process right to maintain the

integrity of family relationships. MSR, however, examined what rights children have in a

proceeding where their own legal relationship with their parent may be terminated in the

context of whether counsel must be appointed for the child at termination. 174 Wn.2d at

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15-20. While T.W. is correct that the court noted a child’s interest in “maintaining the

integrity of family relationships, including the child’s parents, siblings, and other familiar

relationships,” those interests arose because the children were directly involved in the

termination proceeding—not because they were siblings of other children going through

termination. MSR, however, does not confer on one sibling a constitutional interest in

the parent-child relationship between another sibling and the shared parent.

.

The trial court was not required to grant intervention to M.W. based on a

constitutional right to family integrity.

We affirm.

WE CONCUR:

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