In Re The Dep Of T.m. Thomas Mcmahon, App. V. Dshs, State Of Wa, Resp

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of:
T.V.M. (DOB: 02/03/2006)
Minor child.
THOMAS McMAHON,
Appellant,
v.
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent.
DIVISION ONE
No. 74520-4-1
(consol. with No. 74521-2-1)
UNPUBLISHED OPINION
FILED: September 26, 2016
Dwyer, J. - 	Thomas McMahon appeals the trial court's order terminating
his parental rights to his son, T.V.M. 	McMahon contends that the Department of
Social and Health Services failed to prove, as required by RCW 13.34.180(1),
that (1) continuation ofthe parent-child relationship would clearly diminish
T.V.M.'s prospects for a stable and permanent home, (2) all necessary and
available services capable of correcting his parental deficiencies were provided
to him, (3) there was little likelihood that his parental deficiencies could be
remedied so that T.V.M. could be returned to him in the near future, and (4) he
was currently unfit to parent T.V.M. 	Because substantial evidence supports the

No. 74520-4-1 (consol. with No. 74521-2-1)
trial court's findings as to each of these elements, which in turn support the
conclusions of law terminating McMahon's parental rights, we affirm.
I
T.V.M. was born on February 3, 2006 to McMahon and Nicole Brown.
Shortly after T.V.M.'s birth, Brown ended her relationship with McMahon, and she
and T.V.M. moved in with her mother, Valarie Wheeler. According to Wheeler,
for the next few months, McMahon left daily messages on her voicemail stating
that "he couldn't wait to find us, he wanted to put a gun to my head and pull the
trigger, and he wanted to kill [Brown] and . . . [T.V.M.]".
McMahon saw T.V.M. only "a handful of times" as a baby and a toddler,
typically when Brown brought T.V.M. for a visit. When T.V.M. was approximately
a year old, Brown became romantically involved with another man, Steve
Melville. 	T.V.M. grew up with Melville as a father figure and never learned that
McMahon was his biological father.
In 2008, McMahon was charged with first degree manslaughter. 	He was
convicted and sentenced to approximately eight years in prison.
The Department became involved with the family in early 2014 when
Brown was arrested on multiple felony charges related to methamphetamine use
and identity theft. The Department filed a dependency petition and T.V.M. was
placed with Wheeler. The shelter care hearing order provided that parent-child
visitation would take place once a week for two hours "if parent is not
incarcerated."

No. 74520-4-1 (consol. with No. 74521-2-1)
McMahon agreed to dependency in August 2014. 	The juvenile court
prohibited the parties from informing T.V.M. that McMahon was his biological
father until a guardian ad litem was appointed for T.V.M. and consulted with
T.V.M.'s counselor. 	However, the juvenile court ordered that McMahon could
have "supervised visits [with T.V.M.] at the father's correctional institution, if
approved by [T.V.M.'s] counselor."
In approximately September 2014, McMahon wrote a letter to T.V.M. from
prison introducing himself as T.V.M.'s father. McMahon began to write T.V.M.
regularly. 	The record contains a total of 16 cards and letters that McMahon
wrote, as well as some drawings McMahon made for T.V.M. 	McMahon sent
these items to T.V.M. in care of the Department. 	Based on the juvenile court's
order, the Department placed them in the case file but did not provide them to
T.V.M.
In January 2015, T.V.M. began attending therapy with counselor Courtney
Salazar. 	Salazar diagnosed T.V.M. with an anxiety disorder stemming from his
history of neglect and began working with him to develop coping skills.
At a dependency review hearing in March 2015, the juvenile court
amended the visitation provisions to provide that McMahon "may write letters
which the department will hold" and that T.V.M.'s counselor "will help determine
if, when and how it is appropriate to introduce him to his father and provide him
the letters." The juvenile court also ordered that McMahon participate in a
psychological evaluation and substance abuse treatment, based on the

No. 74520-4-1 (consol. with No. 74521-2-1)
Department's determination that these services were available at the facility
where McMahon was incarcerated.
At a dependency review hearing in July 2015, McMahon requested that
the Department be compelled to inform T.V.M. of the identity of his father. 	The
Department did not take a position on McMahon's request, but stated that any
such conversation should take place in a therapeutic environment. 	Salazar
declined to make a recommendation as to whether T.V.M. should be informed
that McMahon was his father, stating that her role was to help T.V.M. develop
coping skills to manage his anxiety. Salazar stated that she was willing to "assist
the family in facilitating a conversation to disclose this information to [T.V.M.]."
The juvenile court denied McMahon's request, stating:
The father does not have a relationship with his son currently.
[T.V.M.] does not know who his biological father is. The father may
write letters which the department will hold.
In person visitation poses a risk to the child's health, safety, and
welfare. . . . The court finds that there is a current concrete risk of
harm shown, the father has threatened the life of the child and of
the caregivers in the past. 	The decision to introduce the father to
the child is to be made by the family/caregivers since they are in
the best position to determine when it is to be done. 	Court will not
breach this given the facts before the court.
The Department filed a termination petition. When the termination trial
commenced in November 2015, T.V.M. was nine years old.
Donald DeShazer, McMahon's classification counselor at Airway Heights
Corrections Center, testified that McMahon's early release date was February 11,
2016, approximately three months away. 	However, DeShazer testified that

No. 74520-4-1 (consol. with No. 74521-2-1)
McMahon could not be released until he had submitted a release address, which
he had not done. 	DeShazer stated that if McMahon did not have an approved
release address, he could be held until his maximum release date of November
17, 2016. 	DeShazer also testified that McMahon had received five major
infractions since 2011, four of which were for either fighting or intimidation.
Department social worker Jill Balch opined that it would take "[n]ine
months to a year of solid recovery and progress and building relationship after
his release" before McMahon could parent T.V.M. Another Department social
worker, Patricia Morgan, also testified it would take "roughly a year" of living in
the community before T.V.M. could be placed with McMahon. Dr. Paul Wert,
who conducted McMahon's psychological evaluation, testified that McMahon
would need to demonstrate stability for "a lengthy period of time ... a year or two
years" after his release before McMahon could assume a parenting role with
T.V.M.
On December 14, 2015, the trial court entered findings of fact and
conclusions of law and an order terminating McMahon's parental rights.
McMahon appeals.1
II
Parental rights are a fundamental liberty interest protected by the United
States Constitution. 	Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
Brown relinquished her parental rights and is not a party to this appeal.

No. 74520-4-1 (consol. with No. 74521-2-1)
L. Ed. 2d 599 (1982). To terminate parental rights, the State must satisfy a two-
step test. 	First, it must prove the following statutory elements by clear, cogent,
and convincing evidence:
(a) That 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. . . . ; [and]
(f) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration into a
stable and permanent home.
RCW 13.34.180(1).
In 2013, the legislature amended RCW 13.34.180(1 )(f) to add three
specific factors that a trial court must consider if a parent is incarcerated at the
time of the trial:
If the parent is incarcerated, the court shall consider whether a
parent maintains a meaningful role in his or her child's life based on
factors identified in RCW 13.34.145(5)(b); whether the department
or supervising agency made reasonable efforts as defined in this
chapter; and whether particular barriers existed as described in
RCW 13.34.145(5)(b) including, but not limited to, delays or barriers

No. 74520-4-1 (consol. with No. 74521-2-1)
experienced in keeping the agency apprised of his or her location
and in accessing visitation or other meaningful contact with the
child.
RCW 13.34.180(1 )(f); In re Dependency of D.L.B., 	Wn.2d 	, 376 P.3d
1099, 1109 (2016). A trial court's assessment of RCW 13.34.180(1 )(f) in cases
involving an incarcerated parent must be "informed by evidence presented and
conclusions reached regarding the six factors contained in RCW
13.34.145(5)(b)." In re Dependency of A.M.M., 182 Wn. App. 776, 787, 332 P.3d
500 (2014). 	Those factors are:
(i) The parent's expressions or acts of manifesting concern
for the child, such as letters, telephone calls, visits, and other forms
of communication with the child;
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the
purpose of complying with the service plan and repairing,
maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable
efforts of the department or the supervising agency;
(iv) Information provided by individuals or agencies in a
reasonable position to assist the court in making this assessment,
including but not limited to the parent's attorney, correctional and
mental health personnel, or other individuals providing services to
the parent;
(v) Limitations in the parent's access to family support
programs, therapeutic services, and visiting opportunities,
restrictions to telephone and mail services, inability to participate in
foster care planning meetings, and difficulty accessing lawyers and
participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the
child's life is in the child's best interest.
RCW13.34.145(5)(b).

No. 74520-4-1 (consol. with No. 74521-2-1)
If the trial court finds that the State has met its burden under RCW
13.34.180, it may terminate parental rights if it also finds by a preponderance of
the evidence that termination is in the "best interests" of the child. RCW
13.34.190(1).
Findings of fact must be supported by substantial evidence. In re
Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011). 	Unchallenged
findings offact are verities on appeal. In re Interest of J.F.. 109 Wn. App. 718,
722, 37 P.3d 1227 (2001). In determining whether substantial evidence supports
the trial court's findings, we will not weigh the evidence or the credibility of
witnesses. 	In re Dependency of E.L.F.. 117 Wn. App. 241, 245, 70 P.3d 163
(2003).
Ill
McMahon contends that the trial court erred by concluding that the
Department met its burden under RCW 13.34.180(1 )(f) in light of the additional
factors relevant to incarcerated parents. We disagree.
McMahon first argues that "but for the Department's interference and
steadfast opposition to visitation, [he] could have had a meaningful role in his
son's life." 	Br. of Appellant at 21. The record does not support this claim.
Between T.V.M.'s birth in 2006 and McMahon's incarceration in 2008, McMahon
had very minimal contact with T.V.M. 	He saw T.V.M. only a few times, when
Brown brought T.V.M. to see him. 	Though Wheeler testified that she has had the
same telephone number for all of T.V.M.'s life, McMahon never made any
8

No. 74520-4-1 (consol. with No. 74521-2-1)
attempts to call and talk to T.V.M. 	Instead, McMahon would call Wheeler and
threaten her, Brown, and T.V.M. Although McMahon ultimately began writing to
T.V.M. from prison, he did not begin doing so until September 2014, by which
time T.V.M. was eight years old. These cards and letters were an attempt to
establish a relationship with T.V.M. for the first time, not maintain an existing
bond. 	This is evidenced by the fact that, at trial, McMahon had difficulty
remembering both the day and the year of T.V.M.'s birth.2
Based on this evidence, the trial court made the following unchallenged
findings.
2.12 The child does not know that Mr. McMahon is his biological
father. He believes that another man, Steven, the mother's former
long-term boyfriend, is his father.
2.33 The father has not maintained a meaningful role in his child's
life. There was no meaningful role between the father and [T.V.M.]
to maintain. [T.V.M.] does not know Mr. McMahon, or that he is his
father.
2.34 Prior to his incarceration, Mr. McMahon did not participate
much in his son's upbringing. 	He last saw his son seven and a half
years ago, when [T.V.M.] was two years old.
2.40 Mr. McMahon never made any efforts to establish a parenting
plan, either prior to or during his incarceration. 	Prior to the
dependency, and since his incarceration in 2008, Mr. McMahon has
never tried to locate his child or establish contact.
Because McMahon does not challenge these findings of fact, they are verities on
appeal.
2 McMahon also struggled to remember the birthdates of his other two sons, whose care
is not at issue in this appeal.

No. 74520-4-1 (consol. with No. 74521-2-1)
Next, McMahon argues that the Department failed to make "reasonable
efforts." Though the statute does not define "reasonable efforts," Division Three
of this court has recently interpreted the term "to require DSHS to make
reasonable efforts to help the incarcerated person remedy parental deficiencies."
In re Parental Rights to M.J., 187 Wn. App. 399, 408, 348 P.3d 1265 (2015).
Here, the evidence supports the trial court's finding that the Department
made reasonable efforts to remedy McMahon's parental deficiencies. 	The
Department ensured that McMahon was able to participate in his two court-
ordered services—substance abuse treatment and a psychological evaluation—
while incarcerated. 	Department social workers kept in regular contact with
McMahon by mail, by telephone, and in person in order to keep him apprised of
the status of the case. 	They also regularly provided him with photographs and
updates about T.V.M.
Contrary to McMahon's claim, the Department did not "actively bar"
McMahon's efforts to have visitation or communication with T.V.M. 	Instead,
Department social workers provided McMahon with prestamped envelopes so
that he could begin writing to T.V.M., referred T.V.M. for mental health
counseling, and asked T.V.M.'s therapist to assess whether contact with
McMahon would be appropriate for T.V.M. 	However, in July 2015, the juvenile
court prohibited the Department from ever informing T.V.M. about McMahon,
finding that McMahon's threatening behavior presented a risk of harm to T.V.M.
10

No. 74520-4-1 (consol. with No. 74521-2-1)
The juvenile court ordered that onlyWheeler, T.V.M.'s prospective adoptive
placement, could make the decision to introduce T.V.M. to McMahon.
Finally, McMahon challenges the trial court's finding regarding the
particular barriers McMahon faced while incarcerated:
2.36 The father has taken advantage of programs offered to him
within the Department of Corrections but his access to services is
limited while incarcerated. 	The father also has limitations on his
ability to reunify with his son while he is incarcerated. 	He cannot
speak directly to his son on the phone, he cannot engage in
reunification counseling with his son, and cannot visit with him. 	The
father has also had some limited ability to speak with Department
social workers.
McMahon does not appear to challenge the trial court's finding that such
barriers existed. 	It is undisputed that they do. 	Rather, he argues that the trial
court should have found that these barriers prevented him from maintaining a
meaningful role in T.V.M.'s life. 	But, as discussed above, McMahon did not have
a meaningful relationship with T.V.M. before he was incarcerated. 	Nor did he
attempt to establish such a relationship until after the Department filed a
dependency petition.
In short, the record is clear that the trial court properly considered the
relevant statutory factors pertaining to incarcerated parents. The trial court's
finding that McMahon's legal relationship with T.V.M. clearly diminished his
prospects for early integration into a stable and permanent home was supported
by substantial evidence.
11

No. 74520-4-1 (consol. with No. 74521-2-1)
IV
McMahon contends that the Department failed to prove that it offered or
provided all necessary services capable of correcting his parental deficiencies as
required by RCW 13.34.180(1 )(d). 	He argues that the Department should have
offered supervised or therapeutic visitation to enable him to form a relationship
with T.V.M. 	But while "[t]here may be situations where visitation is part of a
required service," such as a parenting class, visitation itself does not correct
parental deficiencies and is, therefore, not a "service" that must be provided. 	In
re Dependency of T.H., 139 Wn. App. 784, 792, 162 P.3d 1141 (2007).
Moreover, at no point during the dependency proceedings was the Department
authorized to provide in-person visitation to McMahon.
McMahon also challenges the trial court's finding that there was little
likelihood that T.V.M. could be returned to his care in the near future. 	But this
finding was supported by substantial evidence. 	Balch, Morgan, and Dr. Wert all
testified that McMahon would need to be able to demonstrate sobriety and a
prosocial, crime-free lifestyle for at least a year after he was released before
assuming custody of T.V.M. 	And McMahon does not challenge the trial court's
finding that "[t]he near future for [T.V.M.] is one year or less."
Finally, McMahon contends that the trial court erred in finding that he was
currently unfit to parent. Citing In re Welfare of Seqo, 82 Wn.2d 736, 740, 513
P.2d 831 (1973), McMahon argues that incarceration alone cannot render him
unfit. 	But "a parent's inability to perform his parental obligations because of
12

No. 74520-4-1 (consol. with No. 74521-2-1)
imprisonment, the nature of the crime committed, as well as the person against
whom the criminal act was perpetrated are all relevant to the issue of parental
fitness and child welfare, as are the parent's conduct prior to imprisonment and
during the period of incarceration." 	Sego, 82 Wn.2d at 740.
Here, McMahon's incarceration was not the sole basis for the trial court's
finding. 	Unchallenged finding of fact 2.20 demonstrates the trial court also
considered McMahon's "criminal history, prison infractions, and substance abuse
history" in finding that McMahon was unfit to parent. And it was undisputed that,
at the time of trial, McMahon had no parental relationship with T.V.M.
Substantial evidence supported the trial court's finding of unfitness.
We affirm the trial court's order terminating McMahon's parental rights to
T.V.M.
WE CONCUR:
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