In Re The Welfare Of A.n.b, Carlos Benitez, App V. Dshs, Resp

C~3 	1-'.' ,
U3
CD
<3T>
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
A.N.B., DOB: 	2/8/99;
A.J.B., DOB: 	9/15/06;
A.C.B, DOB: 	12/15/99;
A.J.B., DOB: 	5/16/02.
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent,
v.
CARLOS BENITEZ,
Appellant.
FILED: 	January 9, 2017
Leach, J. — After our remand 	in an earlier appeal, the trial court entered
amended findings of fact and an order terminating Carlos Benitez's parental rights to
his four children. 	Contrary to Benitez's claims on appeal, the trial court did not violate
our mandate or his due process rights when it entered the amended findings based
on the existing record. 	Substantial evidence supports the new findings. 	Accordingly,
we affirm.
No. 74904-8-I
(Consolidated with Nos.
74905-6-I, 74906-4-I, and
74907-2-I)
DIVISION ONE
UNPUBLISHED OPINION

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-I) / 2
PRIOR APPEAL
This is Benitez's second 	appeal from 	the trial court order terminating 	his
parental rights. 	A detailed factual summary is set forth in our earlier decision.1
Benitez is the biological father of four children. 	In August 2010, Benitez was
convicted of multiple felonies and ultimately sentenced to 31 years in prison. 	He
concedes that he will remain incarcerated until at least 2031, well after his youngest
child has turned 18.
In November 2013, the trial court terminated Benitez's parental rights to all
four children. 	In ANB 1, we rejected Benitez's challenges to the trial court's dismissal
of his guardianship petition and denial of his motion to remain unshackled during the
termination proceedings.
Benitez also contended that the Department of Social and Health Services
(Department) failed to prove two of the six statutory termination elements set forth in
RCW 	13.34.180(1). 	We 	decided 	that 	clear, 	cogent, 	and 	convincing 	evidence
supported the trial court's finding that the Department offered Benitez "all necessary
services, reasonably available, capable of correcting the parental deficiencies within
the foreseeable future."2
1 See In re Welfare & Guardianship of A.N.B.. No. 71230-6-1, slip op. at 2-3
(Wash. Ct. App. Feb. 23, 2015) (unpublished) (ANB 1), http://www.courts.wa.gov/
opinions/pdf/712306.pdf.
2RCW13.34.180(1)(d).

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-I) / 3
Benitez asserted that the Department also failed to prove that continuation of
his 	relationship 	with 	the 	children 	clearly 	diminished 	their 	prospects 	for 	early
integration into a stable and permanent home.3 	He argued that the record failed to
show that the trial court considered recent amendments to RCW 13.34.180(1 )(f) that
applied to incarcerated parents. 	We agreed, rejecting the Department's arguments
that the court's existing findings addressed the amended statutory requirements and
that this court could infer the omitted findings.
We affirmed the termination order in part, reversed the trial court's ruling on
RCW 13.34.180(1 )(f), and remanded for further proceedings to address the statutory
amendments:
We express no opinion whether [the 	Department] proved the
required factors on the record that is now before us. That is for the trial
court to decide, in the first instance. 	But we cannot conclude that the
trial 	court 	considered 	whether 	the 	amended 	language 	had 	been
satisfied by clear, cogent, and convincing evidence. 	Accordingly, we
must reverse this ruling and remand for further proceedings to address
this element.[4]
On remand, the court denied Benitez's request for a new evidentiary hearing.
The court found 	an additional evidentiary hearing was 	unnecessary because the
Department 	had 	presented 	sufficient 	evidence 	in 	the 	first 	trial 	addressing 	the
3 RCW 13.34.180(1 )(f).
4 ANB 1. slip op. at 14.

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-l)/4
amended statutory requirements of RCW 13.34.180(1 )(f) and Benitez had had a full
opportunity to address the Department's evidence:
There isn't a 	need for an additional factfinding hearing in this
case. We had the factfinding hearing, we had the trial and the State put
on evidence that satisfied all three of those factors. 	Mr. 	Benitez was
given the opportunity to address the evidence that the State produced.
And so at this point it's appropriate to make additional findings to make
it clear that the Court did consider those factors and that the Court is
making specific findings with respect to those factors.
Based on the evidence presented at the termination trial, the court entered
written findings of fact expressly addressing the statutory factors for incarcerated
parents 	and 	an 	amended 	order terminating 	Benitez's 	parental 	rights. 	Benitez
appeals.
ANALYSIS
Failure To Comply with Mandate
Benitez contends the trial court failed to comply with this court's mandate and
violated the law of the case doctrine when it denied his request for an evidentiary
hearing. 	He argues that our remand in ANB 1 spoke "directly to a lack of proof and
therefore required a new trial. We disagree.
Before July 2013, former RCW 13.34.180(1 )(f) (2009) required that the State
prove that "continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home." 	Effective
July 28, 2013, the legislature amended RCW 13.34.180(1 )(f) to add three specific
-4-

No. 74904-8-1 (consol. w/
Nos. 74905-6-I, 74906-4-1,
74907-2-I) / 5
factors that the trial court must consider before terminating the parental rights of an
incarcerated parent:
If the parent is incarcerated, the court shall 	consider [1] 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); [2] whether the department
or 	supervising 	agency 	made 	reasonable 	efforts 	as 	defined 	in this
chapter; 	and 	[3] whether particular barriers existed 	as described 	in
RCW 13.34.145(5)(b) including, 	but not limited to, delays or barriers
experienced in keeping the agency apprised of his or her location and
in accessing visitation or other meaningful contact with the child.
The 	court's 	assessment 	of 	whether 	an 	incarcerated 	parent 	maintains 	a
"meaningful role" in the child's life includes consideration of the six factors identified
inRCW13.34.145(5)(b):
(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.

No. 74904-8-1 (consol. w/
Nos. 74905-6-I, 74906-4-1,
74907-2-I) / 6
The 2013 amendments do not require the entry of formal written findings of
fact addressing the factors relevant to incarcerated parents. 	Rather, they "simply
mandate[ ] consideration of the parent's ability to maintain a meaningful role" in the
child's life.5
As 	already indicated, we affirmed the termination order in ANB 1 in part,
rejecting three of the four arguments that Benitez raised on appeal. 	We reversed
only one portion of the termination order and remanded for further proceedings to
address the amended statutory requirements for incarcerated parents.
In our decision, we distinguished In re Dependency of A.M.M.,6 in which this
court reversed a termination order because there was no evidence in the record that
the trial court considered the 2013 statutory amendments to RCW 13.34.180(1 )(f) or
that the Department satisfied its burden of proof. 	We noted that unlike A.M.M., the
Department here made the trial court aware of the amended statutory language and
presented evidence relevant to Benitez's relationship with his children.7 	We then
expressly declined to rule on whether the Department "proved the required factors on
the record that is now before us" and left that determination to the trial court.8
5 In re Parental Rights to M.J.. 187 Wn. App. 399, 409, 348 P.3d 1265 (2015).
6 182 Wn. App. 776, 779, 332 P.3d 500 (2014).
7ANB1, slip op. at 13-14.
8 ANB 1. slip op. at 14.

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-I) / 7
Whether an 	appellate 	court 	reversal 	mandates 	a 	new trial 	or 	evidentiary
hearing 	necessarily 	depends 	on 	the 	specific 	language 	of the 	decision 	and 	the
appellate court's intent.9 Viewed in context, nothing in our analysis in ANB 1 "speaks
directly to a lack of proof or suggests that we remanded for the purpose of a new
trial. 	Had 	this court remanded for a 	new evidentiary hearing, 	our recognition of
evidence in the existing record relevant to Benitez's relationship with his children and
express refusal to rule on the sufficiency of the evidence, leaving that determination
to the trial court, would have been meaningless.10 	Under the circumstances, the trial
court's determination that the Department had proved the statutory factors on the
existing record was consistent with our mandate and did not violate the law of the
case.
Due Process
Benitez contends the trial court's entry of new findings without an evidentiary
hearing violated his right to due process. 	In particular, he challenges the findings
that he is currently unfit and that he did not play a meaningful role in his children's
lives. 	He argues that he was denied the opportunity to be 	heard or to present
evidence that he had made progress in correcting his parental deficiencies since the
first trial.
9 See State v. Jones. 148 Wn.2d 719, 722, 62 P.3d 887 (2003).
10 See Jones, 148 Wn.2d at 722.

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-I) / 8
Benitez 	provides 	no 	analysis 	applying 	the 	three 	factors 	in 	Mathews 	v.
Eldridge11 	to this case. 	Nor does he cite any relevant authority suggesting that the
trial court's entry of additional findings on 	remand, 	based solely on 	the existing
record, necessarily raised due process concerns.
Appellate courts have frequently remanded for the entry of omitted findings,
giving the trial court discretion whether to conduct an evidentiary hearing or to base
findings on existing evidence. 	In In re Parental Rights to M.J.,12 the record failed to
indicate how the trial court resolved conflicting evidence of whether an incarcerated
mother had maintained a "meaningful role" in her child's life in light of the recently
amended 	RCW 	13.34.180(1 )(f). 	The 	appellate 	court 	remanded 	for 	further
proceedings with the following instructions:
The trial court is free to conduct its assessment on the basis of the
information already before it or, in its discretion, accept new information
concerning the children, [the mother], or any other factor that may have
changed since the trial last year. 	The court's assessment may lead to a
new outcome or an affirmance of its original decision. 	The court should
make some record of its consideration of the mother's "meaningful role"
and its ultimate ruling affirming or dismissing the termination proceeding
should be reduced to writing.[13l
11 424 U.S. 319, 335, 96 S. Ct. 893, 47 L Ed. 2d 18 (1976).
12 187 Wn. App. 399, 409-10, 348 P.3d 1265 (2015).
13M.J., 187 Wn. App. at 411.
-8-

No. 74904-8-1 (consol. w/
Nos. 74905-6-I, 74906-4-1,
74907-2-I) / 9
Benitez also acknowledges that this court considered an analogous situation
in In re Dependency of T.R.14 	In T.R., the trial court made the statutory findings
supporting termination but did not order termination for 14 months while the parties
pursued an unsuccessful guardianship.15 	On appeal, the mother argued that entry of
the termination order 14 months after the evidentiary hearing violated her procedural
due 	process 	rights because termination 	must 	be 	based 	on a 	current finding 	of
parental unfitness.16
This court noted that the statute does not require entry of a termination order
within a specified period 	after the fact-finding hearing and that "the trial evidence
does not evaporate with the passage of time."17 After balancing the Mathews factors,
we rejected the mother's proposed bright-line rule requiring a new evidentiary hearing
when entry of a final termination order is delayed. 	Although we acknowledged that a
new hearing would have been preferable, 	its absence did not violate due process
under the circumstances:
Whether a further 	hearing 	is required 	depends 	upon 	the facts 	and
circumstances of each case. 	If circumstances indicate any reasonable
possibility that, in the interim, parental deficiencies have been corrected
so that reunification is possible in the near future, 	the court should
reopen 	the 	proceedings. 	This 	fully 	comports 	with 	due 	process:
14 108 Wn. App. 149, 29 P.3d 1275 (2001).
15T.R.. 108 Wn. App. at 153.
16T.R., 108 Wn. App. at 154.
17T.R.. 108 Wn. App. at 158.

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-l)/10
"[Fundamental 	fairness 	may 	be 	maintained 	in 	parental 	rights
termination proceedings even when some procedures are mandated
only on 	a 	case-by-case basis, 	rather than through 	rules of general
application." 	Here, there were no circumstances indicating any such
possibility; 	rather, all indications were to the contrary. 	Due process
therefore did not require reopening the evidentiary proceedings.[18]
Here, the trial court did not enter a new finding of current parental unfitness.
Rather, it simply reentered the existing finding that Benitez did not challenge in his
first appeal. 	Moreover, 	the trial court based 	its 	new findings 	addressing 	RCW
13.34.180(1 )(f) on the existing evidence in the record. 	As the trial court observed,
Benitez had a full opportunity to address or rebut all of the Department's evidence
during the original trial. 	Finally, Benitez does not dispute that both at the time of the
original trial and on remand following appeal, he would not be eligible to participate in
meaningful services until 2029 and would not be released before 2031. 	Nothing in
the record on remand indicated any reasonable possibility that parental deficiencies
had been corrected "so that reunification is possible in the near future." 	Due process
did not require a new evidentiary hearing on remand.
Sufficiency of the Evidence
Benitez 	argues that substantial 	evidence fails 	to 	support the trial court's
amended findings. 	Based on the existing evidence, the court found that Benitez did
not try to maintain a meaningful role in his children's lives, that the Department made
18 T.R., 	108 Wn. 	App. 	at 160 (alteration 	in original) 	(quoting Santoskv v.
Kramer, 455 U.S. 745, 757, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
-10-

No. 74904-8-1 (consol. w/
Nos. 74905-6-1,74906-4-1,
74907-2-I) /11
reasonable efforts to provide services, and that no barriers prevented Benitez from
establishing meaningful contact with the children. 	The additional findings clearly
demonstrate 	that 	the 	trial 	court 	carefully 	weighed 	the 	relevant 	evidence 	and
considered the statutory factors applicable to incarcerated parents.19
Moreover, to the extent necessary, substantial evidence in the existing record
supported the amended findings. 	To meet its burden, the Department must prove the
statutory termination factors in RCW 13.34.180(1) by clear, cogent, and convincing
evidence. 	Clear, cogent and convincing evidence exists when the evidence shows
the ultimate fact at issue to be highly probable.20
As we noted in the first appeal, the only meaningful parental services available
to Benitez in prison will not be available until 2029. 	Benitez does not dispute that he
will not be released until 2031. 	Under the circumstances, the Department made all
reasonable efforts. 	As the trial court found on remand, "there is no hope the children
could be returned to Mr. Benitez while they are still children."
The evidence also established that from the beginning of the dependency, the
disposition orders provided for limited contact with the children through supervised
correspondence and phone contact at the children's request. 	Benitez wrote several
letters 	to 	the 	oldest 	child, 	but 	they 	were 	not 	delivered 	because 	he 	included
19 See jVLL 187 Wn. App. at 409.
20 In re Dependency of K.R.. 128Wn.2d 129, 141,904P.2d 1132(1995).
-11-

No. 74904-8-1 (consol. w/
Nos. 74905-6-I, 74906-4-1,
74907-2-l)/12
inappropriate 	content. 	Despite suggestions on 	how to 	correct the deficiencies,
Benitez made no attempt to revise his letters and made no attempt to correspond
with any of the other children. 	Benitez had no contact with his children for more than
four years.
Substantial evidence supports the trial court's amended findings that Benitez
did not play a meaningful role in his children's lives and that no barriers existed that
prevented him from establishing a meaningful relationship with his children.
We affirm the termination order.
WE CONCUR:
Tam^ 	f\^ 	a*%,
-12-