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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of          )       No. 67022-1-I
                                            )       (consolidated with Nos. 
J.A.F., d.o.b. 7/25/01,                     )       67023-9-I, 67024-7-I,
E.M.F., d.o.b. 7/25/01,                     )       67025-5-I, 67026-3-I, and
V.R.F., d.o.b. 2/2/98,                      )       67027-1-I)
                                            )
                      Minor Children.       )       DIVISION ONE
                                            )
MARTA TUCKER and MICHAEL                    )
FLEMING,                                    )       PUBLISHED OPINION
                                            )
                      Appellants,           )
                                            )
       v.                                   )       FILED:  June 11, 2012
                                            )
STATE OF WASHINGTON,                        )
DEPARTMENT OF SOCIAL AND                    )
HEALTH SERVICES,                            )
                                            )
                      Respondent.           )
                                            )

       Leach, C.J.  --        Michael Fleming and Marta Tucker appeal orders 

terminating their parental rights to their three children, V.F., J.F., and E.F.  Both 

assert that the trial court violated article I, section 10 of the Washington State 

Constitution by closing a portion of the termination trial to the public.  Because 

they did not raise this issue in the trial court and do not show actual prejudice, 

they cannot assert it now.  Fleming and Tucker also raise issues regarding  

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 2

notice requirements under the Indian Child Welfare Act of 19781 and the trial 

court's findings that continuation of the parent-child relationship would diminish 

prospects for early integration into a stable and permanent home and that 

termination is in the children's best interests.  Because these other claims lack 

merit, we affirm.  

                                        FACTS

       Fleming and Tucker are the biological parents of V.F., born February 2, 

1998, and twins E.F. and J.F., born July 25, 2001.       Each of the children exhibits 

challenging behavior, requiring skilled parenting.2   When  the Department of 

Social and Health Services (DSHS) became involved with the family in 2008, it 

discovered unsafe living conditions, lack of parental control, substance abuse by 

Fleming, and a lack of parenting skills on the part of both parents.  After the 

parents failed to participate      voluntarily  in remedial     services,  DSHS filed 

dependency petitions for each of the children.  V.F., E.F., and J.F. were removed 

       1 25 U.S.C. §§ 1901-1963.
       2 Examples include tantrums, biting, hitting, and screaming.  Additionally, 
V.F has been diagnosed with attention deficit and hyperactivity disorder, anxiety 
disorder, and some elements of post-traumatic stress disorder.  E.F. has been 
diagnosed with reactive attachment disorder and oppositional defiant disorder.  
J.F. has been diagnosed with disruptive  behavior  disorder  not  otherwise 
specified and is severely developmentally delayed.  She has an IQ (intelligence 
quotient) of 58 and therefore the cognitive abilities of a child much younger than 
her biological age.  
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No. 67022-1-I (consol. with Nos.
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67026-3-I, 67027-1-I) / 3

from their parents' custody on December 5, 2008, and on February 11, 2009, the 

trial court entered agreed orders of dependency.  These orders noted that 

Tucker and Fleming admitted to the following parental deficiencies: (1) Fleming's 

alcoholism interferes with his ability to parent; (2) conditions at the family's 

house are unsafe and unsanitary; and (3) "[t]he parents are unable to 

adequately intervene or discipline the children's behavior, including fighting and 

bedwetting."   The parents also admitted that the children possibly suffer from 

"mental health issues."  

       The court ordered Fleming to complete a drug and alcohol evaluation and 

undergo random urinalysis testing.  The court required Tucker to submit to a 

psychological evaluation and attend individual and family counseling.  Both 

parents were ordered       to participate in parenting classes, coaching, and 

education and to "obtain and maintain a safe, stable, drug/alcohol/violence free 

living environment appropriate for a child."     The court also provided the parents

with two supervised visits per week.  

       In a permanency planning review order entered in October 2009, the trial 

court  stated that Fleming and Tucker had          complied    with the court-ordered 

services.  The court provided for further parenting instruction and approved a 

primary plan of adoption with an alternative plan of returning the children to the 

                                           -3- 

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 4

care of Fleming and Tucker.  At a review hearing in February 2010, the court 

found (1) the parents would not gain any benefit from additional parenting 

classes because they were "either unwilling or unable to independently apply the 

skills taught"; (2)  "[t]he current visitation schedule is not working, . . . has a 

detrimental impact on the children[, and r]eports of recent visitation continue to 

be extreme in that some visits are really good, and other visits are real 

disasters"; and (3) "[c]ontinuing the current situation of visitation will result in 

more damage to the children."   As a result, the  court reduced the parents'

visitation schedule to two supervised visits per month.  At a full review hearing in 

April 2010, the State reported that Tucker had not engaged in any mental health 

counseling and that Fleming had relapsed and was drinking again.  The court 

found that Fleming and Tucker had made no progress to correct their parental 

deficiencies.  

       In June 2010, DSHS filed a termination petition for each of the children.  

After a nine-day trial in January and February 2011, during which the court 

heard testimony from Fleming, Tucker, the social worker, the parents'

psychological evaluators, the visit supervisors, the guardian ad litem, and the 

children's therapists, the trial court entered orders terminating Tucker's and 

Fleming's parental rights as to each child.  The trial court made specific findings, 

                                           -4- 

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 5

including the following disputed findings:

       2.2    There is no reason to know that the child is an Indian child 
              as defined in 25 U.S.C. 1903(4), and the Indian Child 
              Welfare Act does not apply to these proceedings.

       . . . . 

       2.118 Child's  Early Integration:     Continuation of the parent-child 
              relationship clearly diminishes the child's prospect for early 
              integration into a stable and permanent home.

       . . . .

       2.120 [J.F.] has been in different foster care placements since she 
              was at Ryther Child Center, but she also needs to have 
              some stability and permanence which cannot occur when 
              she has ongoing visitation with her parents.

       . . . . 

       2.125 [The guardian ad litem] testified that in her opinion it would 
              be in the best interests of all the children to terminate the 
              parental rights.  The Court agrees with that opinion.  It is 
              overwhelmingly supported by the other evidence in this 
              case.

       . . . . 

       2.134 Best Interest of the Child:  It is in the best interest of the 
              child that all of the parental rights of Marta Lucia Tucker and 
              Michael Glenn Fleming be terminated under RCW 
              13.34.180 and .190. 

Fleming and Tucker appeal.  

                                      ANALYSIS

The Public's Right to Open Proceedings
                                           -5- 

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 6

       For the first time on appeal, Fleming and Tucker contend that the trial 

court committed constitutional error under article I, section 10 of the Washington 

Constitution and the First Amendment by closing the proceedings to the public

during the testimony of Susan  Harris, clinical director of Phoenix Recovery 

Center.  Generally, a party asserting a constitutional error for the first time on 

appeal must show that the alleged error actually affected that party's rights at 

trial.3 Because Fleming and Tucker do not make this showing, we decline to 

review this issue.

       DSHS called Harris to testify about Fleming's attendance at a Phoenix

inpatient alcohol rehabilitation program.  Before Harris testified, however, DSHS 

told the trial court that Harris believed federal law required a court order before 

she disclosed information about Fleming's treatment.  DSHS requested an order 

authorizing disclosure  under  42 C.F.R. §        2.64.4    After considering DSHS's 

application, the trial court ordered Harris to testify.  All parties agreed that 

federal law required the trial court to close Harris's testimony to the public.  The 

trial court stated,

       3 RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 
(2007).
       4 42 C.F.R. § 2.64 outlines the procedures and criteria for orders 
authorizing disclosures     from alcohol and drug abuse patient records               for 
noncriminal purposes.
                                           -6- 

No. 67022-1-I (consol. with Nos.
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67026-3-I, 67027-1-I) / 7

       I'm going to hereby order that the courtroom be closed at this point, 
       and I don't think the clerk needs to post the sign because . . . all 
       those present are authorized to be here and should anybody else 
       enter the courtroom, I'll direct that that person depart.  So we are 
       now in a closed hearing under the law.

       Harris testified over two days.  Before her testimony resumed on the 

second day, the trial court again asked if anyone objected to the                 closed 

proceeding.  No one did.  The trial court noted, 

       One of the reasons I'm taking these statements explicitly on the 
       record here is that I would like to avoid any situation where there is 
       some objection raised at some later time in this case that the 
       testimony of Ms. Harris should have been taken in open court or 
       something of that nature.  

Tucker's attorney stated, "I think [Tucker would] actually prefer the whole trial be 

closed, so I don't think there's any issue at all."  The trial court's written order 

requiring Harris to testify stated, "[T]he courtroom shall be closed to the public 

during any such testimony, and only the parties, the judge and necessary court 

personnel shall be present."        The   court sealed that part of the       transcript 

containing Harris's testimony.    At no point during these proceedings did anyone 

mention the public's constitutional right to open proceedings under article I, 

section 10.5  

       5 The trial court said it was "mindful" of GR 15, the rule that "sets forth a 
uniform procedure for the destruction, sealing, and redaction of court records."  
GR 15(a).  In deciding whether to destroy, seal, or redact court records under 
GR 15, a trial court must also consider the public's right to open proceedings by 
applying and weighing the factors set forth in Seattle Times Co. v. Ishikawa, 97 
                                           -7- 

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 8

       Article I, section 10 provides that "[j]ustice in all cases shall be 

administered openly, and without unnecessary delay."                    This provision 

guarantees the public open access to judicial proceedings and court documents 

in both civil and criminal cases.6     Similarly, the First Amendment "preserves a 

right of access to court proceedings and records."7 However, the public's access 

to judicial proceedings may be limited if the trial court determines that closure is 

appropriate after applying and weighing the five factors set forth in Seattle Times 

Co. v. Ishikawa.8   In addition to considering these factors on the record, the trial 

Wn.2d 30, 37-39, 640 P.2d 716 (1982).  Indigo Real Estate Servs. v. Rousey, 
151 Wn. App. 941, 948, 215 P.3d 977 (2009).  Although aware of GR 15, the 
trial court believed it had "no  alternative"        but to follow the federal law 
requirement.
       6 Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004).
       7 Tacoma News, Inc. v. Cayce, 172 Wn.2d 58, 65, 256 P.3d 1179 (2011).
       8 97 Wn.2d 30, 640 P.2d 716 (1982). The factors are:
              1.   The proponent of closure and/or sealing must make 
       some showing of the need therefor.  In demonstrating that need, 
       the movant should state the interests or rights which give rise to 
       that need as specifically as possible without endangering those 
       interests.
              . . . If closure and/or sealing is sought to further any right or 
       interest besides the defendant's right to a fair trial, a "serious and 
       imminent threat to some other important interest" must be shown.
              . . . . 
              2.    "Anyone present when the closure [and/or sealing] 
       motion is made must be given an opportunity to object to the 
       [suggested restriction]."
              . . . . 
              3.   The court, the proponents and the objectors should 
       carefully analyze whether the requested method for curtailing 
                                           -8- 

No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 9

court must enter specific findings justifying its closure order.9  We review claims 

based on article I, section 10 de novo.10

       Although neither party objected to the closure below, RAP 2.5(a)(3) 

allows a party to raise for the first time on appeal a manifest error affecting this

constitutional right.11   To demonstrate that an asserted error is manifest, the 

appellant must show actual prejudice,12 -- which means "'the asserted error had 

practical and identifiable consequences in the trial of the case.'"13

       access would be both the least restrictive means available and 
       effective in protecting the interests threatened. . . . If the 
       endangered interests do not include the defendant's Sixth 
       Amendment rights, that burden rests with the proponents.
              4.   "The court must weigh the competing interests of the 
       defendant and the public," and consider the alternative methods 
       suggested. Its consideration of these issues should be articulated 
       in its findings and conclusions, which should be as specific as 
       possible rather than conclusory.
              5.   "The order must be no broader in its application or 
       duration than necessary to serve its purpose. . . ." If the order 
       involves sealing of records, it shall apply for a specific time period 
       with a burden on the proponent to come before the court at a time 
       specified to justify continued sealing.
Ishikawa, 97 Wn.2d at 37-39 (some alterations in original) (citations omitted) 
(quoting Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d 51, 62, 64, 615 P.2d 440 
(1980)).  
       9 Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510, 104 S. Ct. 819, 
78 L. Ed. 2d 629 (1984). 
       10 In re Det. of Ticeson, 159 Wn. App. 374, 379, 246 P.3d 550 (2011).
       11 Ticeson, 159 Wn. App. at 382-83.
       12 Kirkman, 159 Wn.2d at 935.
       13 State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (internal 
quotation marks omitted) (quoting Kirkman, 159 Wn.2d at 935).
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 10

       Fleming and Tucker have demonstrated a violation of article 1, section 

10.  The trial court closed part of the proceedings without first  applying  the 

Ishikawa factors.  The court did not weigh Fleming's interest in the privacy of his 

drug treatment records against the public's interest in open and accessible 

courts.  Nor did the court articulate findings justifying the closure.  Because the

court closed the courtroom without properly considering the public's right to open 

and public proceedings, Tucker and Fleming establish a constitutional error.14

       Because Tucker and Fleming assert this error for the first time on appeal,

they  must   also demonstrate that the        error had identifiable and practical 

consequences in their trial.15    Tucker and Fleming have not done so.  Tucker 

asserts, "Public trial errors, by nature, resist that analysis."    And Fleming relies 

on the presumption of prejudice enjoyed by defendants asserting article I, 

section 22 violations.  "This does not satisfy the rule."16            Additionally, the 

appellants conceded at oral argument that they cannot demonstrate prejudice.  

We agree with that concession.  During the closed proceedings, Harris testified

about Fleming's participation in inpatient services to treat his alcoholism.  But 

       14 DSHS attempts to do the required analysis in its briefing to this court.  
But the determination of a compelling interest is the affirmative duty of the trial 
court.  State v. Bone-Club, 128 Wn.2d 254, 261, 906 P.2d 325 (1995).  This 
court will not make that determination on appeal.
       15 RAP 2.5; Ticeson, 159 Wn. App. at 383.
       16 Ticeson, 159 Wn. App. at 383.
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 11

the facts elicited from Harris were independently established by other evidence

in portions of the proceedings that were open to the public.  Therefore, Tucker 

and Fleming cannot show that Harris's testimony alone affected the outcome of 

the trial.  By failing to object below and by failing to demonstrate actual prejudice 

on appeal, Fleming and Tucker waived review.  

       Tucker   claims that our Supreme Court's plurality decision             in  In re 

Detention of D.F.F.17 requires us to reverse the termination order.  Because a 

majority of the court agreed that a violation of the public's article I, section 10 

rights is not structural error, we disagree.  In D.F.F., our Supreme Court held 

that MPR 1.3, which required automatic closure of involuntary commitment 

proceedings,  violated    article I, section 10.18     The court made this holding

unanimously.  But the court divided over the proper remedy and the justification 

for that remedy.  The lead opinion, signed by four justices, held that the article I, 

section 10 violation was a structural error entitling D.F.F. to new commitment 

proceedings regardless of whether she could show prejudice.19                       The 

concurrence, signed by two justices, concluded that D.F.F. was entitled to this 

relief because she had demonstrated sufficient prejudice.20  The dissent, signed 

       17 172 Wn.2d 37, 256 P.3d 357 (2011).
       18 D.F.F., 172 Wn.2d at 41.
       19 D.F.F., 172 Wn.2d at 42-43 (Sanders, J. plurality).
       20  D.F.F., 172 Wn.2d at 48 (J.M. Johnson, J. concurring).  The 
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 12

by three justices, concluded that D.F.F. was not entitled to a new proceeding

because the harm caused by the closure did not fall on her.21  The concurrence 

and dissent agreed that "'structural error' analysis does not apply to the civil 

context."22  Therefore, a majority of the court agreed that a party seeking a new 

hearing for a violation of the public's article I, section 10 rights must show actual 

prejudice.  

       Again, neither appellant here has made this required showing.  Therefore, 

they are not entitled to relief from the trial court's constitutional error under 

D.F.F.  

       Fleming and Tucker also argue that they did not knowingly, voluntarily, 

and intelligently waive their rights, citing our decision in State v. Applegate.23  "In 

criminal cases, the court must ensure that any waiver of Section 22 rights is 

knowing, intelligent, and voluntary -- which means the court must be sure the 

defendant knew he possessed such a right and knowingly waived it."24           This test 

does not apply when assessing whether a party has waived its own right to 

concurrence disapproves of the lead opinion's reliance on criminal cases 
discussing the rights of criminal defendants under article I, section 22.  
       21 D.F.F., 172 Wn.2d at 49 (Madsen, C.J. dissenting).
       22 D.F.F., 172 Wn.2d at 48 (J.M. Johnson, J. concurring).  
       23 163 Wn. App. 460, 470, 259 P.3d 311 (2011), petition for review filed, 
No. 86513-2 (Wash. Sept. 6, 2011).
       24 Ticeson, 159 Wn. App. at 383.
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 13

assert the public's article I, section 10 rights.25 Applegate is inapposite.  

       Fleming and Tucker have demonstrated constitutional error, but they have 

not demonstrated actual prejudice as required by RAP 2.5.  Therefore, they have 

waived the error and may not raise it for the first time on appeal.  

Indian Child Welfare Act of 1978 (ICWA)

       Both parents assert that DSHS failed to follow ICWA's notice procedures, 

which require the State to alert the appropriate tribe and, in some cases, the 

Bureau of Indian Affairs (BIA) when a dependency proceeding involves an 

"Indian child."    In September 2008, Tucker informed DSHS that she had 

Cherokee ancestry.  DSHS notified the Cherokee Nation of Oklahoma, the 

United Keetoowah Band of Cherokee, the Eastern Band of Cherokee, and the 

BIA that the pending action possibly involved "Indian children."       The notice sent 

to the BIA did not identify an affiliation with a particular tribe.  Each tribe 

responded that it did not consider the children to be "Indian children."        The BIA 

responded, "The child was determined to be non-Indian by Superior Court:

therefore the Indian Child Welfare Act of 1978 does not apply.  Do not send 

future notices."  

       On the first day of the termination trial, Tucker informed the trial court that 

       25 Ticeson, 159 Wn. App. at 383.
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 14

her great-great-grandmother was possibly a member of the "Barefoot" Tribe.26

When the trial court asked her whether she meant the "Blackfoot" Tribe, Tucker 

reiterated that she believed it was "Barefoot."27     During her testimony, the State 

asked Tucker why she had earlier indicated Cherokee ancestry.  Tucker 

responded, "I said Indian ancestry.  I wasn't sure 'cause my dad said Barefoot.  It 

could be Blackfoot.  It could be almost anything.  It was on my dad's side."  

DSHS contacted Tucker's father, Gail Woods.  Woods told DSHS "he knew he 

had 'Indian blood' but did not know anything more than that."         Woods could not 

identify a specific tribe, although he thought the tribe might be "somewhere in 

Wisconsin."   Woods said he did not know of another family member who would 

have more information.  DSHS did not send any further notices to tribes or to the 

BIA.  

       ICWA applies to any involuntary child custody proceeding involving an 

"Indian child." The statute defines "Indian child" as "any unmarried person who 

is under age eighteen and is either (a) a member of an Indian tribe or (b) is 

eligible for membership in an Indian tribe and is the biological child of a member 

of an Indian tribe."28  Under ICWA, an interested tribe must receive notice of a 

       26 A "Barefoot" tribe is not among the federally recognized tribes listed in 
the Federal Register.  75 Fed. Reg. 60810-01 (Oct. 1, 2010). 
       27 The Blackfeet Tribe is a federally recognized tribe in Montana.  75 Fed. 
Reg. 60810-01 (Oct. 1, 2010).
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 15

state court parental rights termination proceeding if the court "knows or has 

reason to know that an Indian child is involved."29  If a tribe's precise identity or 

location cannot be determined, notice must be given to the Secretary of the 

Interior.30 Notice is mandatory regardless of how late in the proceedings the 

issue arises.31  Failure to provide proper notice or to allow a tribe to intervene 

constitutes grounds to invalidate the termination proceeding.32         If a tribe is not 

federally recognized, ICWA's notice requirements do not apply.33  

       Division Two's decision In re Welfare of L.N.B.-L.34 is instructive.  There, 

the father described his heritage as "'Cherokee and Black Foot out of the 

Algonquin Nation,'"35 although he was not a member of those tribes.  The court 

determined that the record contained insufficient evidence to determine whether 

the father's "Black Foot" ancestry referred to the Blackfeet Tribe in Montana.36  

Because DSHS failed to notify the Cherokee and "Black Foot" tribes, the court 

       28 25 U.S.C. § 1903(4).  
       29 25 U.S.C. § 1912(a).
       30 25 U.S.C. § 1912(a).
       31 In re Dependency of T.L.G., 126 Wn. App. 181, 187 n.8, 108 P.3d 156 
(2005).
       32 25 U.S.C. § 1914; T.L.G., 126 Wn. App. at 192-93.  
       33 In re Welfare of L.N.B.-L., 157 Wn. App. 215, 238, 237 P.3d 944 
(2010).
       34 157 Wn. App. 215, 238, 237 P.3d 944 (2010).
       35 L.N.B.-L., 157 Wn. App. at 225.
       36 L.N.B.-L., 157 Wn. App. at 238 n.20.
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 16

remanded for proper notice.  Division Two, however, stated that because the 

identity of the "Black Foot" tribe was unclear, DSHS "should, on remand, notify 

the Portland area director of the Bureau of Indian Affairs (BIA) of the termination 

orders."37

       On this record, DSHS gave proper notice under ICWA.  Because a 

federally recognized tribe could not be identified from Tucker's testimony and 

DSHS's investigation, the proper action under ICWA would be to send a notice 

to the BIA.  DSHS, however, already notified the BIA of the termination action, 

and the BIA responded that V.F., E.F., and J.F. were not "Indian children."  

Because the State notified the BIA, it fulfilled its obligation under the ICWA.      We 

therefore reject this claim.

Termination of Parent-Child Relationship

       Tucker asserts that DSHS failed to prove by clear, cogent, and convincing 

evidence that continuation of the parent-child relationship diminished J.F.'s 

prospects for early integration into a stable and permanent home.  Parental 

rights are a fundamental liberty interest protected by the United States 

Constitution.38  In order to terminate a parent's rights, the State must establish 

       37 L.N.B.-L., 157 Wn. App. at 238 n.20.
       38 Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 
599 (1982).
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No. 67022-1-I (consol. with Nos.
67023-9-I, 67024-7-I, 67025-5-I,
67026-3-I, 67027-1-I) / 17

six statutory factors by clear, cogent, and convincing evidence, including that 

"continuation of the parent and child relationship clearly diminishes the child's 

prospects for early integration into a stable and permanent home."39              Clear, 

cogent, and convincing evidence exists when the ultimate fact at issue is shown 

to be "'highly probable.'"40   This court will not disturb the trial court's findings if 

they are supported by substantial evidence.41         The trial court's unchallenged 

findings are verities on appeal.42     If the court finds that the State has met its 

burden under RCW 13.34.180, it may order termination if it also finds by a 

preponderance of the evidence that termination is in the children's best 

interests.43  

       Although parental rights receive constitutional protection, a parent does 

not have an absolute right to the custody and care of a child.  The paramount 

consideration in a termination proceeding is the child's welfare.44            Where a 

       39 RCW 13.34.180(f), .190(1)(a).
       40 In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995)
(quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).
       41 In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).  
Substantial evidence is "'evidence of sufficient quantity to persuade a fair-
minded, rational person of the truth of the declared premise.'"   World Wide 
Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991) (quoting 
Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)). 
       42 In re Dependency of J.M.R., 160 Wn. App. 929, 939 n.5, 249 P.3d 193 
(2011).
       43 RCW 13.34.190(2); In re Welfare of A.J.R., 78 Wn. App. 222, 228-29, 
896 P.2d 1298 (1995).
                                          -17- 

No. 67022-1-I (consol. with Nos.
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child's rights conflict with the parent's legal rights, the child's rights prevail.45  A 

child's right to basic nurturing includes the right to a safe, stable, and permanent 

home.46

       Here, Tucker challenges the trial court's finding under RCW 

13.34.180(1)(f) only as to J.F., arguing that because J.F. was not in an adoptive 

placement at the time of termination, a continued relationship with Tucker would 

not diminish her prospects for early integration.47  We disagree.  

       [T]he main focus of the sixth allegation in RCW 13.34.180 is the 
       parent-child relationship and whether it impedes the child's 
       prospects for integration, not what constitutes a stable and 
       permanent home.  The State does not have to prove that a stable 
       and permanent home is available at the time of termination.[48]

Therefore, the fact that J.F. has not yet been placed in a prospective adoptive 

home has no bearing on whether substantial evidence supports the trial court's 

finding.

       The record here supports the trial court's determination that continuing a 

legal relationship with Tucker will prevent J.F.'s integration into a stable and 

       44 In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979).
       45 RCW 13.34.020.
       46 RCW 13.34.020; In re Welfare of H.S., 94 Wn. App. 511, 530, 973 P.2d 
474 (1999); In re Dependency of C.R.B., 62 Wn. App. 608, 615, 814 P.2d 1197 
(1991).
       47 At the time the trial court entered its termination order, E.F. and V.F. 
were in prospective adoptive families.  
       48 In re Dependency of K.S.C., 137 Wn.2d 918, 927, 976 P.2d 113 (1999).  
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permanent home.  The undisputed findings confirm that J.F. has significant 

problems requiring safety, structure, and stability in her living environment, that 

J.F. decompensated and regressed during visits with her parents, that Tucker 

does not possess the necessary skills to keep her children safe, that Tucker's 

mental health issues render her incapable of parenting, and that it is unlikely 

that Tucker will ever be able to parent effectively.  In short, the undisputed 

findings demonstrate that a continued relationship with her mother will harm J.F.

       Tucker relies on In re Welfare of S.V.B.49            for the proposition that 

continuation of the parent-child relationship does not diminish a child's

prospects for early integration into a stable and permanent home if it would not 

cause a change in the existing care-taking arrangements for the child.  But 

unlike the placement here, the child there was in an existing guardianship with 

the grandmother, a relationship       that  "'rises to the level of permanency.'"50  

Because  S.V.B.     involved  both  a guardianship      and an existing permanent 

relationship, we find it inapposite.

       Tucker argues that the trial court's finding reads "early" out of the statute.  

       49 75 Wn. App. 762, 775, 880 P.2d 80 (1994).
       50 In re Dependency of A.C., 123 Wn. App. 244, 253, 98 P.3d 89 (2004)
(quoting  CASA (Court Appointed Special Advocate) v. Dep't of Servs. for 
Children, Youth & Their Families, Div. of Family Servs., 834 A.2d 63, 66 (Del. 
2003)).
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But  "[t]he statute does not indicate that the State must seek approval of a 

permanent placement at the time of termination.  [The statute] refers to the 

parent-child relationship diminishing the child's  'prospects'        of a stable and 

permanent home, not to certainty of such placement."51           Because DSHS does 

not need to demonstrate the certainty of placement, Tucker's argument fails.  

The trial court did not err by finding that J.F.'s continuing relationship with 

Tucker would diminish her prospects for early integration into a stable and 

permanent home.

Children's Best Interests

       Fleming disputes the trial court's finding that termination is in the 

children's best interests because he and the children are "bonded."           This court 

affords a trial court broad discretion in making the "best interests" determination, 

and its decision receives great deference on review.52       Whether termination is in

a child's best interests must be decided on the facts and circumstances of each 

case.53  When a parent has failed to rehabilitate over a lengthy dependency 

period, a court is fully justified in finding termination to be in a child's best 

interests rather than leaving the child "'in the limbo of foster care for an indefinite 

       51 K.S.C., 137 Wn.2d at 928-29.
       52 Young, 24 Wn. App. at 395.
       53 In re Dependency of A.V.D., 62 Wn. App. 562, 572, 815 P.2d 277 
(1991).
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period'" while the parent seeks further rehabilitation.54  

       To support his argument, Fleming cites the testimony of Joey Warner, a 

case manager who supervised some of the visits between Fleming and his 

children.  Warner stated that while Tucker generally had trouble interacting with 

her children, "It was primarily the dad who had the very positive portions of the 

visits.  He was able to interact, gave hugs, smiled, gave praise to the children, 

interacted very well."   Warner also testified that during one of the visits, E.F. 

disclosed to her parents that she had been sexually abused by Tucker's 

nephew.  Tucker did not respond to the disclosure.  Fleming, on the other hand, 

"did very, very well.  He praised her.  He rubbed his arm down her back.  You 

know, comforted her.  Interacted extremely well to the situation."  

       While this testimony demonstrates that Fleming possesses some positive 

parenting skills, the preponderance of the evidence nevertheless supports the 

trial court's best interests finding.  The court's unchallenged findings show that 

Fleming is an alcoholic, whose problems with substance abuse prevent him from 

parenting his children.  Fleming does not dispute the trial court's findings that his 

ongoing substance abuse prevents him from meeting his children's needs for 

permanence and stability, renders him incapable of providing proper care for his 

       54 In re Dependency of T.R., 108 Wn. App. 149, 167, 29 P.3d 1275 (2001)
(quoting In re A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). 
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No. 67022-1-I (consol. with Nos.
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children, and places his children in imminent risk of harm.  Therefore, those 

findings are verities on appeal.  Additionally, Fleming acknowledged during his 

testimony that he was unfit to parent because of his continued dependence on 

alcohol.  The trial court did not err by finding that termination of Fleming's 

parental rights is in the best interests of his children.

                                    CONCLUSION

       Tucker and Fleming cannot raise their article I, section 10 claims on 

appeal, and their additional claims have no merit.  We affirm.

WE CONCUR:

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