 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of
S.C.P.,                                         No. 68672-1-1
D.O.B. 8/21/01
                                                DIVISION ONE
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND                        UNPUBLISHED OPINION
HEALTH SERVICES,                                                                 ro
                                                                                       •p-orr-

                      Respondent,

                v.                                                                CO
                                                                                  on


LORRAINE REYES PAYTON,
                                                FILED: May 20, 2013
                      Appellant.


      Grosse, J. — In a proceeding to terminate parental rights, the Department

of Social and Health Services (the Department) must, inter alia, offer all court-

ordered and necessary services to the parent and tailor the services to the

parent's needs. The Department need not, however, offer services from which a
parent is unable to benefit. And, even where the Department inexcusably fails to
offer a service to a willing parent, termination is appropriate if the service would

not have remedied the parent's deficiencies within the foreseeable future.

          Here, the Department did not fail to timely offer Lorraine Reyes Payton

(Reyes) mental health services. The Department offered the services once it
perceived a need for them. Further, in an unchallenged finding, the trial court
found that even if mental health services had been provided immediately

following the evaluation, they would not have borne any fruit for months, if not
years, and that for S.C.P., that time frame does not constitute "the foreseeable
future." Additionally, we reject Reyes' argument that visitation is a "service" that
No. 68672-1-1/2


must be provided.     The trial court's finding as to the provision of services is

supported by substantial evidence. The remainder of the trial court's findings

Reyes challenges are likewise supported by substantial evidence. Accordingly,

we affirm the trial court's order terminating Reyes' parental rights to S.C.P.

                                      FACTS


       S.C.P., born August 21, 2001, is the youngest of Lorraine Reyes' five

children.1 S.C.P. and her siblings were placed in protective custody in June 2009
because of Reyes' arrest for possession of a controlled substance with intent to

deliver.   S.C.P. was found dependent by order filed on August 18, 2009.

Dispositional orders were entered on the same date.

       Reyes pleaded guilty to three drug felonies in December 2009 and was

sentenced to prison in February 2010.       In November 2010, a petition for the

termination of both of S.C.P.'s parents' parental rights was filed. The father was

found in default, and an order terminating his parental rights was entered May

19,2011.

       A fact-finding hearing was held on the petition to terminate Reyes'

parental rights. After the hearing, the court entered findings, conclusions, and an

order granting the petition to terminate the parent-child relationship as to Reyes.

Reyes appeals.


1 The trial court's unchallenged findings of fact are verities on appeal. In re
Interest of J.F.. 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). We rely on the
court's findings of fact, conclusions of law, and order terminating the parent-child
relationship that was filed in the trial court on April 11, 2012. We do not consider
the document entitled "Mother's Proposed Findings of Fact and Conclusions of
Law," even though Reyes assigns error to some of the findings contained therein
and included this document with her notice of appeal. This document is signed
only by Reyes' counsel, not the trial court, and does not appear to have been
filed in the court.
No. 68672-1-1/3


                                    ANALYSIS

       In order to terminate the parent-child relationship, the Department must

satisfy two prongs.2 The first prong focuses on the adequacy of the parents and
requires proof by clear, cogent, and convincing evidence of the six elements set

out in RCW 13.34.180.3 The second prong focuses on the child's best interests
and need be proved by only a preponderance of the evidence.4 If the first prong
is not satisfied, the court does not reach the second.5

      The six elements involved in the first prong 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 near future. A
      parent's failure to substantially improve parental deficiencies within
      twelve months following entry of the dispositional order shall give
      rise to a rebuttable presumption that there is little likelihood that
      conditions will be remedied so that the child can be returned to the
      parent in the near future. The presumption shall not arise unless
      the petitioner makes a showing that all necessary services
      reasonably capable of correcting the parental deficiencies within
      the foreseeable future have been clearly offered or provided. .. .



2 In re Dependency of K.N.J.. 171 Wn.2d 568, 576, 257 P.3d 522 (2011).
3 In re K.N.J.. 171 Wn.2d at 576-77.
4 In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
5 InreA.B.. 168 Wn.2d at 911.
No. 68672-1-1/4


       (f)    That continuation of the parent and child relationship clearly
       diminished the child's prospects for early integration into a stable
       and permanent home.™

       Reyes challenges the trial court's findings regarding elements (d) and (e)

as well as the trial court's finding that termination of her parental rights was in

S.C.P.'s best interests.   Our review of these findings is limited to determining

whether they are supported by substantial evidence.7 Evidence is substantial if it

is sufficient to persuade a fair-minded person of the truth of the declared

premise.8 Because the trial court has the opportunity to hear the testimony and
observe the witnesses, the trial court's decision is entitled to deference, and we

do not weigh the evidence or judge the credibility of the witnesses.9
RCW13.34.180(1)(d)

       Reyes argues that the trial court erred in finding that the Department

offered her all necessary services because the Department did not provide her

with visitation and a timely psychological evaluation.

      Visitation


       This court has held that visitation is not a "service" for purposes of RCW

13.34.136 and 13.34.180(1)(d).10 Reyes argues that our holding is no longer
valid in light of a recent amendment to the federal Adoption and Safe Families

Act of 1977, which is incorporated into Washington law.            Specifically, for

purposes of chapter 13.34 RCW, remedial services geared to correcting parental

deficiencies are those services defined as "time-limited family reunification


6 RCW 13.34.180(1).
7 In re Welfare of C.B., 134 Wn. App. 942, 952-53, 143 P.3d 846 (2006).
8 InreC.B., 134 Wn. App. at 953.
9 InreC.B.. 134 Wn. App. at 952.
10 In re Dependency of T.H., 139 Wn. App. 784, 792, 162 P.3d 1141 (2007).
No. 68672-1-1/5


services" in the federal statute.11    Included in the list of time-limited family
reunification services in the federal statute is "[sjervices and activities designed

to facilitate access to and visitation of children by parents and siblings."12 Based
on this, Reyes argues that the Department was required to offer her visitation

with S.C.P.


         The Department argues that Reyes waived this argument by failing to

raise it below.   Reyes does not dispute that she did not raise this argument

below.    We agree with the Department that Reyes waived this argument on

appeal.13 Further, the amendment to the federal statute does not, as Reyes
argues, change our holding in In re Dependency of T.H. that visitation is not a

"service" for purposes of RCW 13.34.136 and 13.34.180(1 )(d).14 The federal
statute refers to services and activities designed to "facilitate . . . visitation of

children by parents and siblings."15 Under Reyes' argument, visitation would be
a service designed to facilitate visitation. This argument makes no logical sense.

         Mental Health Services

         Reyes argues that the trial court erred in finding that the Department

offered her all necessary services because the Department did not timely offer

her mental health services. Again, we disagree with Reyes.




11 RCW13.34.025(2)(a).
12 49 U.S.C. § 629a(a)(7)(B)(vii).
13 See RAP 2.5(a). We reject Reyes' argument that she is entitled to raise the
argument regarding visitation because her argument is a sufficiency of the
evidence argument that may be raised for the first time on appeal under RAP
2.5(a)(2). Her argument is not a sufficiency of the evidence argument.
14 139 Wn. App. 784, 792, 162 P.3d 1141 (2007).
15 49 U.S.C. § 629(a)(7)(B)(vii).
No. 68672-1-1/6


        The Department is required to offer all court-ordered and necessary

services and must tailor the services to the parent's needs.16 To meet this
burden, the Department must show either that it offered the parent remedial

services but the parent did not avail herself of them, or that the parent waived her

right to such services.17
        Relying on In re the Termination of S.J..18 Reyes argues that she was
entitled to mental health services at the same time she was provided drug

treatment services. The circumstances in SJ^. are, however, quite different from

the circumstances in this case. In SJ^, the mother's mental health issues were

identified within months of when her children were removed from her care. Here,

neither the Department nor any of the social workers involved in Reyes' case had

any indication of a need for a mental health evaluation until September 2011,

while Reyes was in prison on the drug offenses.

        Moreover, the Department is not required to offer services from which a

parent is unable to benefit.19 And, only services capable of correcting parental
deficiencies within the foreseeable future need be offered or provided.           In an

unchallenged finding, the trial court found:

        The mother's particular mental health problems, to the extent
        they've been identified, appear to be long term and would likely
        require some very long-term treatment. Even with long-term
        treatment it is unknown if the mental health problems could be
        resolved. Even if mental health services had been provided
         immediately following the evaluation, they would not have borne
         any fruit for months, if not years. Forthis child that time frame does
         not constitute "the foreseeable future."   More importantly, mental
         health problems are not the major factor in this case. Unless the
16   In re Dependency of DA. 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
17   In re Welfare of S.V.B., 75 Wn. App. 762, 770, 880 P.2d 80 (1994).
18   162 Wn. App. 873, 256 P.3d 470 (2011).
19   In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001).
No. 68672-1-1/7


       drug problem has been dealt with reliably, the child will not be able
       to be placed with mother in the foreseeable future.

       The trial court's finding 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 is supported by substantial evidence.

RCW 13.34.180(1 Me)

       Reyes purports to challenge the trial court's finding that there is little

likelihood that conditions will be remedied so that S.C.P. could be returned to her

in the near future.20 But, she did not assign error to this finding of the trial court.
It is, accordingly, a verity on appeal.        Nor did Reyes assign error to the trial

court's finding that her substantial number of criminal convictions and her

infractions committed while in prison also demonstrate little likelihood that

conditions will be remedies in the near future.21 This finding, too, is a verity on
appeal.


20 Finding of Fact 2.28 provides:
       There is little likelihood that conditions will be remedied so that the
       child can be returned to the mother in the near future. The mother
       has a significant criminal history, and has been involved in the
       criminal system for over two decades. She has been incarcerated
       numerous times making her unavailable to care for her child. She
       has a significant substance abuse history and had several attempts
       at treatment without demonstrated success.
21 Finding of Fact 2.29 provides:
       The mother had been convicted of over 30 misdemeanors and five
       drug related felonies. The mother testified that the theft convictions
       were all drug related. During the course of her incarceration, she
       had two major infractions in prison which are significant. One of the
       infractions involved giving an over-the-counter medication from one
       prisoner to another. This is similar to drug dealing criminal
       behavior that    resulted    in   the   mother's   incarceration   and   is
No. 68672-1-1/8


      Reyes does, however, challenge the trial court's finding regarding the

rebuttable presumption:

      The mother failed to substantially improve her parenting
      deficiencies within twelve months following entry of the dispositional
      order. [The Department] offered the mother all necessary services
      within twelve months of entry of the dispositional order. This gives
      rise to the rebuttable presumption that there is little likelihood that
      conditions will be remedied so that the child can be returned to the
      mother in the near future[,] which the mother has not overcome.[22]
Reyes argues that the trial court improperly relied on the rebuttable presumption

because, under the statute, the presumption does not arise unless the

Department shows that all necessary services reasonably capable of correcting

the parental deficiencies within the foreseeable future have been clearly offered

or provided.23 Relying on her argument regarding visitation and mental health
services, Reyes argues that the Department failed to make the required showing

as to necessary services to allow the presumption to arise. Because, however,

we find that all necessary services reasonably capable of correcting Reyes'




      problematic in that she acknowledged that her IOP [(intensive
      outpatient)] treatment in prison addressed her criminal behavior,
      and yet she committed this infraction after completing IOP. The
      other violation, tattooing her roommate, the mother committed
      simply because somebody "bugged her" a lot. Not only does it
      appear that the mother did not receive any benefit from committing
      these actions, these infractions, which occurred within months of
      transitioning to work release, exposed her to the possibility of
      prolonged incarceration which meant that she risked being
      unavailable to care for [S.C.P.] for an even longer period of time.
      The substantial number of convictions and the progression in
      number and length of incarcerations, her continuing to engage in
      criminal activity knowing she would be unavailable to parent in any
      meaningful way, along with the current infractions demonstrates
      little likelihood that conditions will be remedied in the near future.
22 The rebuttable presumption is found in RCW 13.34.180(1 )(e).
23 RCW 13.34.180(1 )(e).

                                          8
No. 68672-1-1/9


parental deficiencies within the foreseeable future have been clearly offered or

provided, we reject Reyes' argument.

       Reyes also challenges the court's finding that "the foreseeable future was

the present," meaning that S.C.P. needs immediate placement in a permanent

home. The court did not specifically find that "the foreseeable future was the

present," but rather found:

       Dr. Jason Prinster undertook an evaluation of the child.         In Dr.
       Prinster's opinion, the child needs stability and consistency and
       prolonging the dependency presents a risk that the child will
       develop more severe problems. Dr. Prinster's opinion based on the
       history of this child, the long duration of this dependency, as well as
       the factors involving the child's behavior, is highly credible.
       [S.C.P.'s] current placement provider does not want to keep
       [S.C.P.] due in part to her behaviors. Permanency and stability are
       paramount to [S.C.P.'s] best interests. [S.C.P.] has been in limbo
       for too long and to continue the parent-child relationship for a
       significant period of time which, at a minimum[,] would take months
       is interfering with her ability to integrate into a permanent and
       stable home. This child needs stability now for healthy growth and
       development which cannot be achieved except through termination
       of parental rights.

       The trial court's finding is supported by substantial evidence. Dr. Prinster,

who evaluated     S.C.P.      in   December 2011,   testified   that S.C.P.   needed

consistency, predictability, and stability as soon as possible, otherwise S.C.P.'s

emotional distress would worsen and her ability to function would lessen.

S.C.P.'s volunteer guardian ad litem likewise felt that S.C.P. needed stability,

predictability, and permanency.       Dr. Prinster testified that S.C.P. needed an

attentive and consistent caregiver who was part of her treatment and part of her

life. Dr. Prinster recommended "an interactive parent who has a lot of time and

energy to help [S.C.P.] out." The evidence shows that Reyes would not be able

to fulfill that role in the foreseeable future.   For example, in an unchallenged
No. 68672-1-1/10


finding, the court found that a determination of whether Reyes could remain

clean and sober for any length of time once released from prison would take a

significant period of time and that her sobriety while incarcerated cannot be

viewed as an indicator of long-term sobriety. Further, according to social worker

Karen Kelsey, Reyes would have to aggressively pursue all of the services

provided her for a period of six months before the reunification process could

even begin. A return home would not happen until even later. In the meantime,

Reyes would have to find stable housing, but at the time of trial, she had no idea

where she would be living once released from prison.            Because the evidence

clearly shows that S.C.P. needs stability and a permanent home as soon as

possible, and because the evidence also shows that Reyes cannot provide this,

the trial court did not err in its finding as to S.C.P.'s immediate need for stability.

RCW 13.34.190(1 )(b)

       Reyes challenges the trial court's finding that termination of her parental

rights is in S.C.P.'s best interests.

       If the Department establishes the six elements of RCW 13.34.180(1), the

court must then consider whether termination of the parent-child relationship is in

the best interests of the child.24 Reyes argues that the trial court's finding as to
S.C.P.'s best interests is premature because the Department failed to establish

the six elements RCW 13.34.180(1). We reject this argument for the reasons set

forth above.

       Reyes also argues that termination is not in S.C.P.'s best interests

because she and S.C.P. have a "history of a loving mother-daughter bond."


24 RCW 13.34.190(1 )(b).

                                           10
No. 68672-1-1/11


Whether termination is in the best interests of the child must be proved by a

preponderance of the evidence and determined based on the facts of each

case.25 Here, the trial court found, in an unchallenged finding, that S.C.P. has
been out of Reyes' care for almost half of her life due to the mother's inability to

care for S.C.P. We find no evidence of a history of a loving mother-daughter

bond. In fact, Dr. Prinster testified that S.C.P.'s bond with Reyes appeared to be

weak. Further, the uncontradicted opinion of the witnesses is that S.C.P. needs

stability, consistency, and permanancy, and needs these things as soon as

possible. The evidence shows that, at least for the foreseeable future, Reyes will

be unable to provide this to S.C.P. We will not disturb the trial court's finding that

termination of Reyes' parental rights is in S.C.P.'s best interests.

       Affirmed.




                                                     ^^SVwv-^      J
WE CONCUR:




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25 In re Welfare of Aschauer. 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).

                                          11
