Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 80759-1
Title of Case: In re Welfare of A.B.
File Date: 06/10/2010
Oral Argument Date: 06/24/2008


SOURCE OF APPEAL
----------------
Appeal from Yakima County Superior Court
04-7-00643-8
Honorable Michael E Schwab


JUSTICES
--------
Barbara A. Madsen Concurrence Author
Charles W. Johnson Signed Concurrence
Gerry L. Alexander Signed Dissent
Richard B. Sanders Signed Majority
Tom Chambers Dissent Author
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Signed Majority
Debra L. Stephens Did Not Participate
J Dean Morgan,
Justice Pro Tem. Majority Author


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Sheila Malloy Huber
Attorney at Law
Po Box 40124
Olympia, WA, 98504-0124


Michael James Shinn
Office of The Atty General
1220 Main St Ste 510
Vancouver, WA, 98660-2964


Miriam Rosenbaum
Attorney General of Washington
1220 Main St Ste 510
Vancouver, WA, 98660-2964

Amicus Curiae on behalf of Washington Defender Association
Linda Lillevik
Carey & Lillevik PLLC
1809 7th Ave Ste 1609
Seattle, WA, 98101-1313





IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Welfare of A.B., )
a minor child. )
)
ROGELIO SALAS, )
)
Appellant, ) No. 80759-1
)
v. ) En Banc
)
THE DEPARTMENT OF SOCIAL )
AND HEALTH SERVICES, )
)
Respondent. ) Filed June 10, 2010
______________________________ )

MORGAN, J.* -- The trial court granted the State's petition to terminate the
parent-child relationship between Rogelio Salas and his daughter, A.B. The Court
of Appeals affirmed by unpublished opinion. In re Welfare of A.B., 140 Wn. App.
1024 (2007). We granted Salas' motion for discretionary review. In re Welfare of
A.B., 164 Wn.2d 1001 (2008). Salas now argues (1) that he has a due process right
not to have his relationship with his natural child terminated unless the trial court
first finds that he, at the time of trial, is currently unfit to be a parent, (2) that the

*Judge J. Dean Morgan is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).

In re the Welfare of A.B., No. 80759-1

trial court in his case did not make such a finding, and thus (3) that the trial court's
order terminating his relationship with his daughter violated his right to due process.
The State responds to the second of these propositions by asking us to imply such a
finding if none was expressed and by claiming that the record in this case contains
evidence sufficient to support the trial court's findings. In addition, Salas argues
that the trial court misapplied the six termination factors of RCW 13.34.180(1) by
mixing considerations involving A.B.'s best interests and considerations involving
his parental rights. Holding that Salas is correct on both scores and rejecting the
State's responses, we reverse and remand for further proceedings consistent
herewith.
By virtue of RCW 13.34.180(1) and RCW 13.34.190, a Washington court
uses a two-step process when deciding whether to terminate the right of a parent to
relate to his or her natural child. The first step focuses on the adequacy of the
parents1 and must be proved by clear, cogent, and convincing evidence.2 The
second step focuses on the child's best interests3 and need be proved by only a
preponderance of the evidence.4 Only if the first step is satisfied may the court
reach the second.5

1 RCW 13.34.180(1); In re Interest of S.G., 140 Wn. App. 461, 467, 166 P.3d 802 (2007) (citing
In re Welfare of C.B., 134 Wn. App. 942, 952, 143 P.3d 846 (2006); In re Welfare of Churape,
43 Wn. App. 634, 638-39, 719 P.2d 127 (1986).
2 Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); RCW
13.34.180(1).
3 RCW 13.34.190; S.G., 140 Wn. App. at 467 (citing C.B., 134 Wn. App. at 952); Churape, 43
Wn. App. at 638-39.
4 RCW 13.34.190.
5 Churape, 43 Wn. App. at 638-39.
2

In re the Welfare of A.B., No. 80759-1

According to RCW 13.34.180(1), the first step involves six termination
factors, each of which must be proved clearly, cogently, and convincingly. They are
(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 future . . . . ; [and]
(f) That the 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). According to RCW 13.34.190, the second step is for the court
to ascertain the best interests of the child. Because the parent's rights will already
have been observed in the first step, this second step need be proved by only a
preponderance of the evidence.
With this statutory scheme in mind, we turn to the facts here. On October 27,
2001, A.B. was born at a hospital in Yakima, Washington. The hospital quickly
discovered that A.B. had cocaine in her system, deduced that her mother, J.B., had
been abusing that drug, and notified the Washington State Department of Social and
Health Services (DSHS).
On October 29, 2001, DSHS took custody of A.B. and placed her temporarily

3

In re the Welfare of A.B., No. 80759-1

in a licensed foster home. Soon thereafter, DSHS commenced dependency
proceedings and promptly notified Salas, whom J.B. had named as A.B.'s father.
J.B.'s parental rights were later terminated, and she is not a party to this appeal.
Salas' paternity of A.B. was confirmed on June 25, 2002.
Never married to J.B., Salas was living in Las Vegas, Nevada, at the time
A.B. was born. Due to his own prior drug abuse, he was being supervised by a
Nevada drug court and was prohibited from leaving Nevada. As a result, he initially
was unable to attend the Yakima dependency hearings in person, although appeared
and participated through court-appointed counsel.
According to the trial court's written findings of fact, Salas last abused drugs
in late 2001. Around that same time, Salas and his mother asked DSHS to arrange
for a Nevada home study, in the hope that A.B. could be placed in the home that
Salas, his mother, and her husband (Salas' stepfather) were then sharing. Nevada
declined, citing his criminal history and the fact that his paternity had not yet been
confirmed.
On February 4, 2002, the trial court entered an order finding that A.B. was
dependent. It also ruled that Salas could visit A.B. so long as he did so in Yakima.
About the same time, DSHS removed A.B. from the foster home where she had
been living since late October and placed her in the home of T.L., a distant cousin of
J.B.'s. A.B. has resided with T.L. ever since.
While these events were taking place, Salas continued to participate in the
Nevada drug court program, and he found steady employment in Las Vegas.
4

In re the Welfare of A.B., No. 80759-1

Shortly after his paternity was confirmed, he reiterated his request for a Nevada
home study. Nevada again denied the request, this time citing his criminal history
and prior drug use.
By February 25, 2003, Salas had successfully completed his drug court
program and was no longer prohibited from leaving Nevada. On that date, he came
to Yakima and had his first supervised visit with A.B., who by then was almost 16
months old.
On June 11, 2003, Salas moved from Las Vegas to Yakima. On June 13, two
days later, he presented himself to the DSHS caseworker, and she arranged for
urinalyses, a parenting assessment, and supervised visits three times a week for an
hour each time. That same month, Salas began visiting A.B. regularly and
frequently, albeit under supervision.
Visitation progressed so well over the summer that by September 2003, the
DSHS caseworker thought that A.B. had come to see Salas as "someone who was
in her life consistently . . . [a]nd so she began to trust."6 At a September meeting

called to plan where A.B. should be permanently placed, the caseworker noted that
she was planning to arrange increased visitation without supervision, and that she
was moving toward placing A.B. in Salas' home, despite T.L.'s apparent
opposition.
On September 16, 2003, Salas' first unsupervised visitation was scheduled to
take place at a Yakima park. The caseworker and A.B. were there on time, but

6 Report of Proceedings (RP) at 248; State's Am. Suppl. Br. at 5.
5

In re the Welfare of A.B., No. 80759-1

Salas never arrived. An hour after the appointed time, Salas' stepfather called to
say that Salas was in jail for pushing a police officer who had tried to intervene in a
fight between Salas and his then-girlfriend, C.S.
Due in part to an immigration hold, Salas remained in jail for the next four
months. During that period, he did not see A.B., and the DSHS caseworker
changed her permanent plan from one that would have reunited A.B. and Salas, to
one that would terminate their parent-child relationship and make A.B. available for
adoption by T.L.
Visitation resumed in January 2004, but it was different from before. A.B.
seemed not to recognize Salas, and she treated him like a stranger. Rather than
showing any sort of attachment to Salas, one observer noted, A.B. constantly turned
to T.L., who was also present at the visitations. According to the April 2003 report
of another observer, A.B. seemed not to want to leave T.L.'s side during the
visitations. At trial, the DSHS caseworker explained that four and a half months can
be a very long time to a child of A.B.'s age, and that A.B.'s reluctance to interact
with Salas was likely due to the gap between visits that had occurred while Salas
was in jail. Nonetheless, Salas visited A.B. every week from February 2004
through most of February 2005.
Meanwhile, in May 2004, Salas married C.S, the girlfriend with whom he had
been fighting the previous September. Their relationship was "dysfunctional and
unhealthy,"7 and they separated in July 2004, after only three months of marriage.

7 Clerk's Papers (CP) at 89.
6

In re the Welfare of A.B., No. 80759-1

On January 1, 2005, C.S. gave birth to Salas' child, A.S. When C.S. left the
hospital, the heat at her house was turned off, and she had nowhere to go.
Consequently, Salas allowed her and the three persons living with her (A.S., the
new baby; G.S., C.S.'s older child from another relationship; and C.S.'s disabled
adult sister) to move in with him. In February 2005, C.S. was convicted for
criminally mistreating her disabled sister -- an event of which Salas disclaims all
knowledge, and for which he was never charged.
In late February 2005, Salas moved back to Las Vegas, where he resumed
living with his mother and stepfather and working at the steady job he previously
had held. His mother and stepfather having been made guardians of A.S., the baby
born on January 1, 2005, and Salas having received custody of G.S., C.S.'s older
child from another relationship, by virtue of a tribal court order, the five of them,
three adults and two children, have since resided together in the home of his mother
and stepfather.
Although Salas visited A.B. regularly from February 2004 until February
2005, his return to Las Vegas caused him to miss a visitation that was scheduled for
February 25, 2005. He next saw A.B. in May, when he called the DSHS
caseworker and requested weekend visitation because he would now have to travel
from Las Vegas. When the caseworker told him that weekend visits were not
available, they agreed that Salas and A.B. would visit on Friday afternoon, May 20,
2004. Although the visit took place as scheduled, A.B. continued to refuse to
interact with him, and he did not visit again before trial.
7

In re the Welfare of A.B., No. 80759-1

On June 13-17, 2005, a bench trial was held on a petition for termination that
the State had filed in September 2004. On June 17, 2005, the trial court exercised
its discretion not to resolve the case at that time. The court orally stated that it was
"not satisfied that all necessary services have been identified and provided,"8 and

that there "is some likelihood that conditions can be remedied, so that this father can
continue to be involved in this child's life."9 The court decided that it would

continue the trial so as to give Salas time "to convince me that I should not
terminate the relationship with this child. And the way you can do that is by coming
up with some plan. I want it in writing, and I want some evidence between now and
then that's not just on paper."10 Cautioning Salas not to "heave a sigh of relief,

yet," the court stated that A.B. "is ok" at T.L.'s house, and that "it's going to take
an unbelievable effort for you to dislodge [her] from that home."11

From mid-June until trial reconvened in November, Salas attempted to meet
the trial court's concerns. He visited A.B. every two weeks. He obtained a new
domestic violence evaluation in Las Vegas and began a new 26-week domestic
violence treatment program. On August 4, 2005, he presented the court with a plan
for continuing substance abuse treatment and testing, maintaining his domestic
violence program, managing his relationship with C.S., paying child support for
A.B., and obtaining parenting and personal assessments. He identified a Las Vegas

8 5 RP at 908.
9 Id.
10 Id. at 909.
11 Id. at 908-09.
8

In re the Welfare of A.B., No. 80759-1

family counselor, pediatrician, and elementary school, and, on August 21, 2005, he
divorced C.S.
On November 16-22, 2005, the rest of the trial was held. On November 22,
2005, the trial court took the case under advisement, and on January 5, 2006, it filed
a 16-page memorandum opinion, the contents of which are discussed below. The
court concluded that it was satisfied DSHS had presented clear, cogent, and
convincing evidence establishing the criteria set forth in RCW 13.34.180(1), and
that it was satisfied by a preponderance of the evidence that A.B.'s permanent
placement with T.L. would be in A.B.'s best interests. The court was also satisfied,
it said, "that it is in the child's best interest to maintain a relationship with her father
and his family provided that the continuation of that relationship does not constitute
a perpetual challenge to the legitimacy of the placement with [T.L.]."12 Nowhere in

its opinion did the court state that Salas was then unfit to parent. Believing that "the
only way to resolve this dilemma is through the creation of an open adoption" and
that "open adoption would allow for the child and for the continuation of the father-
child relationship," the court concluded by directing the parties

to engage in discussions to determine whether an open adoption is
possible and then to report back to the Court within thirty days from
the date herein. If it turns out that the parties cannot agree on this
alternative, then the Court will hear further argument and will decide if
the best interests of the child in having a permanent home with [T.L.]
require the termination of the father-child relationship.[13]

12 Mem. Op. at 15.
13 Mem. Op. at 16.
9

In re the Welfare of A.B., No. 80759-1

Although neither party has furnished us with a record of any subsequent court
proceedings, it is apparent that the parties were unable to reach agreement. Thus,
on March 31, 2006, the court entered formal written findings of fact and conclusions
of law. Parroting the language of RCW 13.34.180(1)(d) and (e), the court found
that "[a]ll services ordered under RCW 13.34.136 and all necessary and reasonable
available services capable of correcting parental deficiencies within the foreseeable
future have been offered or provided in an express and understandable manner,"14

and that "[t]here is little likelihood that conditions will be remedied so that the child
could be returned to or placed with her father in the near future."15 Nowhere in its

findings and conclusions, however, did the court expressly find that Salas was then
unfit to be a parent.
Also on March 31, 2006, the trial court entered an order terminating Salas'
relationship with his daughter. Salas appealed to the Court of Appeals, which
affirmed, and then to this court, which granted discretionary review.

I
As noted at the outset, Salas now argues (a) that a parent has a due process
right to have his or her relationship with a natural child terminated only if the trial
court makes a finding of current parental unfitness, and (b) that in this case the trial

14 CP at 93.

15 Id.
10

In re the Welfare of A.B., No. 80759-1

court did not make such a finding. Thus, he concludes that the trial court's order
terminating his relationship with his daughter violated his right to due process. In
addition to arguing the flip side of Salas' issues, the State responds that we must
imply the necessary finding and that it trumped Salas' right to such a finding by
presenting substantial evidence. Rejecting these responses, we agree with Salas.
A
The first question here is whether a parent has a due process right not to have
the State terminate his or her relationship with a natural child in the absence of an
express or implied finding that he or she, at the time of trial, is currently unfit to
parent the child. According to the United States Supreme Court, this court, and our
Court of Appeals, the answer is yes.
In Santosky v. Kramer, 455 U.S. 745, 760, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982), the United States Supreme Court said that "[v]ictory by the state [i.e., the
entry of an order terminating parental rights] entails a judicial determination that the
parents are unfit to raise their own children." Moreover, the Court went on to say
that "until the State proves parental unfitness, the child and his parents share a vital
interest in preventing erroneous termination of their natural relationship." Id.16

Concluding that this interest required more protection from error than was afforded

16 See also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978)
(quoting Smith v. Org. of Foster Families, 431 U.S. 816, 862-63, 97 S. Ct. 2094, 53 L. Ed. 2d 14
(1977) (Stewart, J., concurring in judgment) ("We have little doubt that the Due Process Clause
would be offended '[i]f the State were to attempt to force the breakup of a natural family, over
the objections of the parents and their children, without some showing of unfitness and for the
sole reason that to do so was thought to be in the children's best interest.'")).
11

In re the Welfare of A.B., No. 80759-1

by a mere preponderance-of-evidence standard of proof, the Court held that the
State had to prove the elements of its case that were necessary to terminate the
parent-child relationship by a standard of proof "equal to or greater than" clear and
convincing evidence. Id. at 769.
In In re Dependency of K.R., 128 Wn.2d 129, 141-42, 904 P.2d 1132 (1995),
this court cited and followed Santosky. We held that Washington's termination
statute, RCW 13.34.180(1), implicitly requires evidence of current parental
unfitness, and thus "comports with the constitutional due process requirement that
unfitness be established by clear, cogent, and convincing evidence."17 We further

held that "after reviewing the entire record and examining the requirements of RCW
13.34.180 and 13.34.190,"18 the trial judge had made the required findings, albeit

implicitly.
In at least six cases, our Court of Appeals has ruled or noted similarly. In In
re Dependency of S.G., 140 Wn. App. 461, 468-69, 166 P.3d 802 (2007), Division
Three ruled, "The court must first conclude that the parent is deficient before it can
terminate the parent's legal relationship with his child. . . . Without a problem, there
can be no solution." In In re Dependency of T.L.G., 126 Wn. App. 181, 203, 108
P.3d 156 (2005), Division One stated, "Termination must be based on current
unfitness; children may not be removed from their homes merely because their
parents are mentally ill." In In re Dependency of A.S., 101 Wn. App. 60, 70-71, 6

17 K.R., 128 Wn.2d at 142.

18 Id. at 146.
12

In re the Welfare of A.B., No. 80759-1

P.3d 11 (2000) (citing Santosky, 455 U.S. 745; K.R., 128 Wn.2d at 141-42),
Division One noted that it is a "constitutional due process requirement that unfitness
be established by clear, cogent and convincing evidence." In In re Dependency of
A.W., 53 Wn. App. 22, 29, 765 P.2d 307 (1988) (citing Krause v. Catholic Cmty.
Servs., 47 Wn. App 734, 743, 737 P.2d 280 (1987)), Division One said that
"termination decisions are predicated upon present parental unfitness." In In re
Welfare of C.B., 134 Wn. App. 942, 143 P.3d 846 (2006), Division Two essentially
held that where the evidence was insufficient to support finding that the mother of
child was currently deficient, the trial court could not make such a finding, and
without such a finding, the trial court could not terminate the mother's relationship
with her child. In In re Welfare of Churape, 43 Wn. App. 634, 638, 719 P.2d 127
(1986), Division Three essentially held that the trial court could not terminate the
relationship between a father and his children where the evidence was insufficient to
support a finding that the father was currently deficient at the time of trial, even if
the evidence showed that the father was deficient at an earlier time. Based on the
rulings of all of these courts, we hold that a parent has a constitutional due process
right not to have his or her relationship with a natural child terminated in the
absence of a trial court finding of fact that he or she is currently unfit to parent the
child.
B
The next question is whether the trial court actually made such a finding here.
Neither party has pointed us to anything in the record demonstrating that the trial
13

In re the Welfare of A.B., No. 80759-1

court made the required finding expressly. Nor have we ourselves discovered
anything to that effect. Necessarily then, we conclude that the trial court did not
make the required finding expressly.
The State asks us to fill the void by implying that the trial court found Salas
was not currently fit to parent A.B. at the time of trial. As support for its request,
the State relies on K.R., 128 Wn.2d 129, wherein we implied a finding of current
parental unfitness even though the trial court had not made the finding explicitly. In
K.R., as discussed above, we agreed that a finding of current parental unfitness is
necessary to sustain a judgment terminating parental rights, but we then stated,
"[N]o explicit finding of current parental unfitness is required. However, if the State
proves the allegations [set forth in RCW 13.34.180], an implicit finding of current
parental unfitness has been made." Id. at 141-42 (citing Krause, 47 Wn. App. at
742).
At issue here is whether this language from K.R. always, or only sometimes,
permits an appellate court to imply or infer a finding of current parental unfitness.
Because the facts and circumstances under which an appellate court is asked to
imply or infer a finding of current parental unfitness can vary so dramatically from
case to case, it cannot reasonably be asserted that just because an implication or
inference can sometimes be drawn, it can always be drawn. Accordingly, we
conclude that when an appellate court is faced with a record that omits an explicit
finding of current parental unfitness, the appellate court can imply or infer the
omitted finding if -- but only if -- all the facts and circumstances in the record
14

In re the Welfare of A.B., No. 80759-1

(including but not limited to any boiler plate findings that parrot RCW 13.34.180)
clearly demonstrate that the omitted finding was actually intended, and thus made,
by the trial court. To hold otherwise would be illogical, and it would permit trial
and appellate courts easily to sidestep the due process requirement that a judgment
terminating parental rights be grounded on an actual (as opposed to a fictional)
finding of current parental unfitness.19

Significantly, the trial court in this case made a number of findings that
affirmatively conflict. Although the trial court entered boiler plate findings that
parroted each element of RCW 13.34.180(1) -- in finding of fact 1.32, for example,
the court parroted RCW 13.34.180(1) (e) by finding "little likelihood that conditions
will be remedied so that the child can be returned to or placed with her father in the
near future"20 -- it also entered individually tailored findings to the contrary. It
stated, for example, that Salas had been "clean and sober" since late 2001;21 that he
had "participated in a variety of services" since early 2002;22 that he had been

steadily employed since returning to Las Vegas in 2005; that he had "indicated from
the very beginning a strong desire to have custody of the child and to also have his
own family involved in her life;"23 and that despite Salas and his family having

19 Cf. State v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16 (2007) (appellate court implied finding
where record showed that trial court had actually made it, even though trial court had not
explicitly stated that it was making finding); State v. Souza, 60 Wn. App. 534, 543, 805 P.2d 237
(1991) (appellate court could not imply finding where evidence was disputed).
20 CP at 91. The finding did not identify the conditions to which the court was referring.

21 Id. at 88.

22 Id. at 87.

23 Id. at 89.
15

In re the Welfare of A.B., No. 80759-1

"made almost heroic efforts" to make their visits with A.B. meaningful, they had
been unable to establish a "close attachment" between Salas and A.B.24 Although

the trial court also found that the problems between Salas and A.B. were "profound
and intractable," it strongly implied that those problems were not attributable to
Salas when, in the very same finding by which it exonerated DSHS from
responsibility for such problems, it speculated, without mentioning Salas, that the
problems were perhaps "the result of subtle changes in the child's relationship with
her caretaker and her original status as a drug-affected newborn."25 Given their

conflicting nature, these individually tailored findings make it impossible to discern
that the trial court actually found that Salas was currently unfit to parent his
daughter, and, as a result, we may not now imply such a finding.
We confirm this conclusion by looking to the trial court's memorandum
opinion, which contains many additional statements inconsistent with an actual
finding that Salas was currently unfit at the time of trial. It states, for example, that
"the father has presented some excellent credentials as a responsible adult:"

(a) He has a good job, a demonstrated work ethic, and a
commitment to providing financial support for his family[.]
(b) He has overcome a substance abuse problem, been clean
and sober for four years, and been willing and able to continue
counseling and treatment as required[.]
(c) He has participated in domestic violence and anger
management counseling[.]
(d) He has maintained a patient and loving commitment to

24 Id. at 90-91.

25 Id. at 91.
16

In re the Welfare of A.B., No. 80759-1

visitations with his child, despite frequent indications of resistance by
the child[.]
(e) He is a part of a loving and caring extended family who
maintain a safe and stable home in Las Vegas[.]
(f) He has disengaged himself physically and legally from a
dysfunctional and unhealthy relationship with [C.S.] and taken
appropriate steps to care for two children from that relationship.[26]

It also states, for example:

[C]ertain legal troubles in Las Vegas and Yakima, as well as financial
difficulties, have hampered [Salas'] ability to successfully complete all
treatment recommendations and to maintain consistent and meaningful
contact with the child. Despite these circumstances he has demonstrated a
sincere and conscientious commitment in this case regarding his child.[27]

The father has had over 100 visitations with the child, including many where
his mother was also present. The father and his family have made almost
heroic efforts to participate in the visits and to try and make them meaningful,
but despite their efforts the visitations have not established a close attachment
between father and child.[28]

There have been indications over the last two and a half years of great
potential for an attachment between the father and child in this case. Given
the father's significant progress and his potential to be a positive male figure
in the child's life, it would not be in the child's best interest to completely
sever the relationship with his child at this time so long as this relationship
does not conflict with the permanent placement for the child.[29]

Reading this record as a whole, we cannot conclude that the trial court was actually
making a finding that Salas was currently unfit to parent A.B., and, accordingly, we

26 Mem. Op. at 14-15.
27 Id. at 10.
28 Id. at 11.
29 Id. at 15.
17

In re the Welfare of A.B., No. 80759-1

may not imply such a finding here.
The State contends that it presented substantial evidence of Salas' current
unfitness to parent. The effect, the State seems to conclude, is to adversely impact
Salas' argument that the trial court violated his right to due process when it
terminated his relationship with his daughter without first finding that he was
currently unfit to parent. We cannot agree.
To ask whether the State presented substantial evidence is to ask whether the
trial court could have found for the State.30 To ask whether Salas' due process right

to a finding of unfitness was violated is to ask what the trial court did find. But to
hold that the trial court could have found Salas currently unfit says nothing about
whether the trial court did (or did not) find that. Thus, even if we assume the
contention is correct, it is nonresponsive and irrelevant to Salas' due process
argument,31 and it can have no impact here, adverse or otherwise. Accordingly, we

decline to address it further.
II
In addition to arguing that the trial court violated his right to due process by
not actually finding that he was currently unfit, Salas argues that the trial court

30 E.g., In re Dependency of C.B., 61 Wn. App. 280, 283-85, 810 P.2d 518 (1991) (in a
termination case, evidence is substantial (or, equivalently, sufficient to support a trial court
finding) if, taking the evidence in the light most favorable to the party who prevailed below, a
rational and reasonable trier of fact could find each element of the case in accordance with the
applicable burden of persuasion); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979) (same formulation in a criminal case).
31 Although Salas argued in the Court of Appeals that the evidence was not substantial, he
abandoned that argument when he moved this court for discretionary review. Mot. for
Discretionary Review at 1-2. We also did not grant discretionary review on that question.
18

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misapplied the two-step statutory scheme embodied in RCW 13.34.180-.190. To
reiterate part of what we said near the outset of this opinion, when a Washington
court applies the first step of that scheme, it is obliged to focus on the alleged
unfitness of the parent, 32 which must be proved by clear, cogent, and convincing
evidence,33 and when it applies the second step, it focuses on the child's best
interests,34 which need be proved by only a preponderance of the evidence.35 But it

is "premature" for the trial court to address the second step before it has resolved
the first.36

Parenthetically, Washington's two part scheme seems to be based at least in
part on Santosky.37 While addressing the constitutionality of New York's statutory

termination scheme, the United States Supreme Court characterized the scheme as
having two phases: a "factfinding" phase designed to deal with terminating the
parent's rights, and a "dispositional" phase designed to deal with the child's best
interests. The Court then said, "The factfinding [between parent and the State] is
not intended to balance the child's interest in a normal family home against the
parents' interest in raising the child. Nor does it purport to determine whether the
natural parents or the foster parent would provide the better home."38 Rather, the

32 RCW 13.34.180(1); S.G., 140 Wn. App. 461; Churape, 43 Wn. App. at 638-39.
33 Santosky, 455 U.S. at 749 n.3; RCW 13.34.180(1).
34 RCW 13.34.190(1); S.G., 140 Wn. App. at 467; Churape, 43 Wn. App. at 638-39.
35 RCW 13.34.190.
36 Churape, 43 Wn. App. at 639 ("Here, it appears the trial court made a premature 'best interest'
determination without first fully examining the reunification factors.").
37 455 U.S. at 759-60.
38 Id. at 759.
19

In re the Welfare of A.B., No. 80759-1

Court said, it is designed to focus on whether "the natural parents are at fault" and
litigate questions of "what the State did" and "what the natural parents did not
do."39 In contrast, the dispositional phase is when the court can base its order

"'solely on ... the best interests of the child,'" and it comes "[a]fter the State has
established parental unfitness."40

In the course of deciding whether to terminate Salas' parental rights, the trial
court in this case reasoned in part that A.B had been living with T.L. all of her life;
that A.B. was fully integrated into T.L.'s home and had not developed a significant
relationship with Salas; and "that it is in [A.B.'s] best interest to maintain a
relationship with her father and his family provided that the continuation of that
relationship does not constitute a perpetual challenge to the legitimacy of the
placement with [T.L.]."41 In making these and other similar statements, the trial

court was obviously focusing on A.B.'s best interests, as opposed to Salas' current
unfitness. Accordingly, we are required to hold that the trial court reasoned
erroneously.
In conclusion, a judgment terminating parental rights cannot stand absent a

39 Id. at 759-60.
40 Id. at 760 (quoting N.Y. Family Court Act ยง 631(c) (McKinney 2007)); see also Troxel v.
Granville, 530 U.S. 57, 72-73, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (due process clause
does not permit the State to infringe on parents' child-rearing decisions merely because judge
believes those decisions could have been better); In re Custody of Shields, 157 Wn.2d 126, 143,
136 P.3d 117 (2006) ("best interests" analysis, standing alone, cannot substitute for an inquiry
into parental unfitness); In re Custody of Smith, 137 Wn.2d 1, 20, 969 P.2d 21 (1998) ("best
interest of the child" is insufficient to overrule a parent's right to raise his or her child); Churape,
43 Wn. App. at 639 ("trial court made a premature 'best interest' determination without first fully
examining the reunification factors").
41 Mem. Op. at 16.
20

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finding of current parental unfitness. An appellate court may imply the existence of
such a finding if -- but only if -- the facts and circumstances clearly demonstrate that
the finding was actually made by the trial court. Given that the facts and
circumstances here do not so show, and that lack of an essential finding is presumed
equivalent to a finding against the party with the burden of proof,42 we reverse the

judgment entered below and remand to the trial court with directions that unless the
parties agree otherwise in writing or on the record of the court, it shall supervise the
prompt but orderly transfer of A.B. to Salas' home and, once that is accomplished,
dismiss the case with prejudice.

42 State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997) ("In the absence of a finding on a
factual issue we must indulge the presumption that the party with the burden of proof failed
sustain their burden on this issue."); Smith v. King, 106 Wn.2d 443, 451, 722 P.2d 796 (1986)
("[W]e presume from the absence of further findings in that regard that second purchasers [who
had the burden of proof] failed to sustain their burden.); Golberg v. Sanglier, 96 Wn.2d 874, 880,
638 P.2d 1347, 647 P.2d 489 (1982) (same); Pilling v. E. & Pac. Enters. Trust, 41 Wn. App.
158, 165, 702 P.2d 1232 (1985) (same).

21

In re the Welfare of A.B., No. 80759-1

AUTHOR:
J. Dean Morgan, Justice Pro Tem.

WE CONCUR:
Justice Susan Owens

Justice Mary E. Fairhurst

Justice James M. Johnson

Justice Richard B. Sanders

22