                                                                                       c=)    Cr)c)
                                                                                       co     >
                                                                                       C—
                                                                                              (Tr
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                      cx)
                                                                                                      r-
In re Matter of the Dependency of       )                                                       m
                                        ) No. 76430-6-1                                               Loi
                                                                                                r—          •
J.K.I.,                                 ) (consolidated with
                                                                                             „
                                                                                             --17CD
DOB: 08/15/2006,                        ) 76431-4-I& 76432-2-1)                       CD
                                                                                      *"".
                                        )
T.J.I.,                                 ) DIVISION ONE
DOB: 07/26/2003,                        )
                                        )
M.J.I.,                                 ) UNPUBLISHED OPINION
DOB: 09/12/2012,                        )
                                        ) FILED: January 8, 2018
                     Minor Children.    )
                                        )

       BECKER, J.    A mother seeks reversal of an order terminating her parental

rights as to her three children. She argues that the court should have granted

her an additional six months to engage in services. Ample evidence at trial

showed that her prior participation in services was minimal. Her ability to provide

a stable, nurturing home for her children remained in doubt. We affirm.

                                       FACTS

       Appellant is the biological mother of T.J.I.(DOB 7/26/03), J.K.I.(DOB

8/15/06), and M.J.I.(DOB 9/12/12). Finding of Fact(FF)2.4. The State removed

the children from their parents' custody in July 2014, following an incident where

law enforcement was called to respond to a report of physical domestic violence
No. 76430-6-1/2

between the mother and the children's father. FF 2.7-2.8. The State filed

dependency petitions that summer. FF 2.5, 2.9. Dependency as to the father

was established on October 1, 2014. FF 2.10. Dependency as to the mother

was established on October 8, 2014, after a fact-finding hearing. FF 2.11. The

dependency court found, by a preponderance of the evidence,"The mother's

parental deficiencies are lack of housing, mental health, substance abuse,

engagement in a domestic violence relationship, and an inability to provide for

the children's basic needs." FF 2.12. The court ordered the mother to participate

in a variety of services, including drug and alcohol evaluation, domestic violence

assessment, psychological evaluation with a parenting component, and urinalysis

testing. FF 2.14. The mother was later ordered to engage in individual

counseling and take a hair follicle test. FF 2.15-2.16.

       The mother did not comply with many of these requirements. The State

filed termination petitions on March 16, 2016. FF 2.17. The father did not

contest termination of his rights. A trial on termination of the mother's rights was

held in October 2016. FF 1.1. After several days of testimony—including

testimony from both parents, social workers, and other treatment providers—the

court issued an oral ruling granting termination on November 2, 2016. Report of

Proceedings at 906.

       On January 5, 2016, during a hearing on a proposed written order, the

mother moved to continue the matter or stay entry of the order for six months.

The court denied this request and entered a written order the next day. The




                                         2
No. 76430-6-1/3

order includes over 100 findings about the mother's failure to engage in services

and her continued parenting difficulties, including the following:

   Mental health:

   • "The mother has suffered some terrible events in her life. She lost
     a baby who was only four days old in 2011 and her stepson. ..
     died in 2013 while a dependent child under the care of the
     Department. These events have no doubt had a profound and
     lasting effect on the mother and she deserves our sympathy and
     compassion." FF 2.19 (unchallenged).

   • "The mother has significant mental health issues that negatively
     impact her ability to safely parent and that will require long-term
     treatment. In February 2014, the mother was involuntarily admitted
     to the hospital due to a mental break. The mother admitted that
     she needed continual mental health treatment, but she has not
     followed through." FF 2.108 (challenged).

   • "It is abundantly clear that while the mother has completed a
     psychological evaluation with a parenting component with Dr.
     Swing, she has failed to complete the recommended counseling
     without any justification." FF 2.83 (unchallenged).

   • "Recently the mother referred herself to counselor Anna Abramyan,
     MSW, an outreach mental health counselor with Island County
     Human Services, without any notice or referral from the
     Department. Ms. Abramyan is not a licensed counselor as of yet."
     FF 2.81 (unchallenged).

   • "The mother and Ms. Abramyan had met three times as of the time
     of trial and were still in the process of building rapport. This clearly
     does not constitute compliance with the various court orders
     requiring individual counseling." FF 2.82 (unchallenged).

   Substance abuse:

   • "The record shows that the Department made referrals for all of the
     required services. Despite this fact, the mother has never
     undertaken a single UA during the course of these proceedings."
     FF 2.22(unchallenged).

   • "The mother testified that she did a few UAs before the dependency
     case was filed and shortly thereafter, and further claimed they were
     negative. These were not UAs done pursuant to Department

                                          3
No. 76430-6-1/4

      referrals, and the mother has never produced the actual results of
      these UAs. Even if it were true that the mother did do these UAs,
      that does not excuse her failure to do the court-ordered UAs." FF
      2.23(unchallenged).

  • "Substance abuse was properly identified as a significant issue in
    this case. The father and the mother had been together for about
    14 years as of July 2014 when the children were removed from
    their care. The father testified that he was actively using drugs for
    several months after [the mother's stepson] died, and that the
    mother was also involved in using drugs. The father testified that
    he and the mother used several times a week for several months
    before the children were removed." FF 2.24 (challenged).

  • "The mother denied drug use in her testimony. The Court finds that
    the mother is not credible in this regard." FF 2.27 (challenged).

  • "The Court finds that the mother did in fact use illegal drugs for a
    significant period of time and was actively using drugs at the time
    the children were removed from the parents' care in July 2014." FF
    2.28 (challenged).

  • "There was ample justification for the Court to require random UAs,
    a drug and alcohol evaluation and compliance with recommended
    treatment. There was no justification whatsoever for the mother's
    failure to comply with these services." FF 2.29 (challenged).

  • "It is true, as the mother argues, that there is little or no evidence of
    current drug use by the mother. But given the significant history of
    drug use by the mother, and the fact that this was a major issue
    when the dependency began, it cannot be determined if she is
    currently using drugs because she refuses to do her court-ordered
    random UA testing as well as her more recently ordered hair follicle
    test. Therefore, this remains a significant issue." FF 2.30
    (challenged).

  • "The mother has refused or failed to do any of the required UA
    testing or the hair follicle test." FF 2.85 (unchallenged).

  • "The mother completed a drug and alcohol evaluation in April 2015
    but she was not forthcoming, and the assessment was
    inconclusive. The Department referred her to an additional
    evaluation with Sea Mar, and she failed to do it without any
    justification." FF 2.84 (challenged).



                                        4
No. 76430-6-1/5

   Employment and housing:

   • "In addition, there is a substantial issue as to whether the mother
     even has a place to care for the children if they were to be returned
     to her care. She is currently living with [two named individuals] in a
     two-bedroom, two-bathroom trailer. . . .[One of them] has an
     organic brain disorder and is unemployed. [The other] is disabled
     and the mother provides some care for her." FF 2.129
     (unchallenged).

   • "There was no evidence to indicate that[the owner of the trailer]
     would consent to the children living in the trailer. [One of the
     individuals] testified that there are plans to remodel the trailer to
     accommodate the children and that he would move out if the
     children come to live there. Even if that were true, it would be a
     very poor living situation with two adults and three children living in
     a small trailer. There was also no satisfactory explanation
     concerning how two boys and one girl could be appropriately
     accommodated in the trailer." FF 2.130 (unchallenged).

   • "Furthermore, the mother has not had regular employment during
     the course of these proceedings and it is highly questionable
     whether she could provide for the children's needs of food and
     shelter if they ever were to be returned to her care." FF 2.131
     (unchallenged).

Visitation:

   • "The court also notes that there have been chronic problems
     regarding the mother's visitation with the children. The parties
     argued for their respective interpretations of how many visits the
     mother missed or was late for. The Court notes there were 85
     potential visits. The mother missed some 27 of these visits, and
     was late for 12 more. By any measure, that is a lot of missed
     visits." FF 2.120 (challenged).

   • "The mother had no excuse for most of her missed visits. The
     mother did not work much during the pendency of these
     proceedings and the Department provided gas money and ferry
     fare to assist the mother in transportation." FF 2.121
     (unchallenged).




                                         5
No. 76430-6-1/6

       The order concludes that the State proved all requirements imposed by

the termination statute, RCW 13.34.180, and that termination served the

children's best interests. FE 2.86-89, 2.106, 2.113, 2.114, 2.115, 2.128.

       The mother appeals from the termination order. She argues that two

statutory requirements, RCW 13.34.180(1)(e) and (f), lack evidentiary support

and it was error to deny her request to delay entry of the termination order. She

also challenges the trial court's denial of her motion for a final visit with her

children.

                LIKELIHOOD CONDITIONS WILL BE REMEDIED

       Parents have a fundamental liberty interest in the care, custody, and

companionship of their children, but the right is not absolute; when parental

actions or decisions seriously conflict with the child's physical or mental health,

the State has a right and responsibility to intervene. In re Parental Rights to

K.M.M., 186 Wn.2d 466, 477, 379 P.3d 75 (2016). Termination of parental rights

is warranted only when six conditions are shown by clear, cogent, and convincing

evidence, meaning the ultimate facts are shown to be "'highly probable."

RCW 13.34.190(1)(a)(i); K.M.M., 186 Wn.2d at 478, quoting In re Welfare of

Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)(internal quotation marks

omitted). The mother challenges the adequacy of evidence supporting the

requirement that "there is little likelihood that conditions will be remedied so that

the child can be returned to the parent in the near future." RCW 13.34.180(1)(e).

"A parent's failure to substantially improve parental deficiencies within twelve

months following entry of the dispositional order shall give rise to a rebuttable


                                           6
No. 76430-6-1/7

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." RCW 13.34.180(1)(e);

see also In re Welfare of T.B., 150 Wn. App. 599, 608, 209 P.3d 497(2009).

      The presumption applies here. As of trial, the dependency proceedings

had been going on for over two years. FF 2.135-136 (unchallenged). The

mother does not dispute the finding of current parental unfitness. FF 2.107

(unchallenged). She contends the presumption is rebutted by testimony from Dr.

Sierra Swing. Swing is a clinical psychologist who evaluated the mother on two

occasions, once in 2015 and once in 2016. Report of Proceedings at 191, 196,

229; see also FF 2.41-42, 2.49-61, 2.69-77. At trial, Swing testified on cross-

examination that the mother could make progress if given an additional six

months:

              [SWING:]... there are several risk factors that are present
      in her relationship with her children that are concerning and she's
      been given several opportunities to address those concerns, even if
      they are not things that she feels that needs to be addressed. It's
      concerning that she hasn't done them just for the sake of getting
      her children back.
              Do I think that she has the ability to do it and be a good
      parent and learn new skills? Yes, I do. And 1-- but at the same
      time, how many opportunities does she need to have in order to
      prove that she can do these things that are recommended?
              [COUNSEL FOR THE MOTHER:] And I do understand that.
      And, frankly, I do -- I understand too well some of your opinions, but
      I -- nonetheless, were the Court to give her six more months to
      buckle down and do what she should have done a long time ago,
      would that, first of all, enter -- well, is that a workable proposal?
              [SWING:] Sure. It would take a lot of effort by[the mother]
      and a lot of consistency and follow-through but I don't think it's
      impossible.
              [COUNSEL] Would you recommend it?
             [SWING] Yeah. If this was the last additional six months.
              [COUNSEL] The last straw. And I do --


                                          7
No. 76430-6-1/8

             [SWING:1 And if she understands that. I think that that's
      part of the difficulty is that I don't know how clearly she's
      understood whether or not this was the -- this is the consequence
      for her lack of participation. You know, maybe at this point she may
      recognize the seriousness of it and that will help motivate her. 1
      hope that it does.

Report of Proceedings at 252-54(emphasis added).

       During cross-examination by the father's lawyer, Swing testified that an

additional six months would provide better indication as to whether the mother

should lose her parental rights:

             [COUNSEL:] So to clarify, is it your testimony that if she got
      into treatment tomorrow, that it would take six months before -- of
      solid work, that she would be in a position to be able to care for all
      three of her children?
             [SWING:] It would be a better indication as to whether or not
      she should lose her parental rights. I think that -- I think several
      things need to happen in order for [the mother] to safely and
      effectively care for her children.
              I think she needs to -- someone needs to evaluate her to
      determine whether or not substance abuse is an issue. Someone -
      - I would strongly recommend that she participate in parenting
      classes. I'm very aware that she did this in 2012 and doesn't feel
      the need to do it. I think there are additional skills that would be
      helpful for her to learn.
              I think that she should be evaluated by a psychiatrist and
      potentially try medication to see if stimulant medication would be
      helpful in improving her attention difficulties. Her -- and could
      actually keep her on task and make her more adaptable to change
      and help her with her follow-through. Maybe that should happen
      first.
              And then engagement in therapy. Again, I don't know if
      she's at a place where she can participate in insight-oriented
      therapy, but at the very least learn skills and clearly applying them
      in her parenting and then demonstrating that she has a safe place
      for her children to live with her. If she can do that in six months,
      maybe that could -- maybe that is possible for her to work towards
      getting her children back. But, again, it's difficult to say based on
      her previous behavior.

Report of Proceedings at 254-55.


                                        8
No. 76430-6-1/9

       During cross-examination by counsel for one of the children, Swing

testified that the mother had not engaged in the treatment that Swing had

previously recommended:

             [COUNSEL] So you recommended that she engage in
      counseling for at least -- twice a month for at least 12 months?
             [SWING] After my previous -- my initial evaluation, yes.
             [COUNSEL] And to your knowledge, did she do that?
             [SWING:] Not to my knowledge.
             [COUNSEL] And you would recommend at this point that
      she do an alcohol and drug assessment?
             [SWING] I recommend that in my initial evaluation, yes.
             [COUNSEL] And over the last 12 months, to your
      knowledge, has she done that?
             [SWING:] Not to my knowledge.
             [COUNSEL] What other recommendations did you make or
      acts for her to do back in October 2015?
             [SWING] I don't remember specifically. It was primarily
      around engaging in therapy, potentially doing additional parenting
      classes, doing her drug and alcohol evaluation, and then finding
      and having a stable place for her children to live potentially.
             [COUNSEL] So those are the same recommendations that
      you just made now if she were to get another six months that she
      would need to do?
             [SWING] That, in addition to trying medication for ADHD.
             [COUNSEL] And to your knowledge, over the last 12
      months since you initially made those recommendations, has she
      done any of the things you recommended?
             [SWING] Not to my knowledge.
             [COUNSEL] So in theory, if she was given another six
      months to do what she hasn't done over the past 12 months, she
      might be in a position to maybe care for her children; is that your
      testimony today?
             [SWING] That sounds not very good, but, yes.

Report of Proceedings at 260-61.

      Appellant argues that Swing's testimony combined with evidence that the

mother had begun therapy when trial occurred rebuts the presumption that she

could not correct parental deficiencies in the near future. We disagree with this

analysis. The portions of Swing's testimony relied on by appellant are largely

                                        9
No. 76430-6-1/10

speculative. Swing said that it was not impossible for the mother to make

progress in the next six months but that she would need to demonstrate "a lot of

consistency and follow-through." Report of Proceedings at 253. Swing testified it

was "possible for her to work towards getting her children back. But, again, it's

difficult to say based on her previous behavior." Report of Proceedings at 255.

This testimony does not outweigh evidence that the mother's engagement with

services during the dependency process was minimal. Her current involvement

in therapy is commendable. But this fact and Swing's testimony create, at best, a

mere possibility that within the next six months the mother could obtain

necessary treatment and her parenting abilities would improve to a meaningful

extent. This possibility is insufficient to rebut the presumption in RCW

13.34.180(1)(e). The trial court correctly found the requirement met by clear,

cogent, and convincing evidence.

       What constitutes the "near future" is determined from the child's point of

view. In re Dependency of A.G., 123 Wn. App. 244, 249, 98 P.3d 89(2004). The

mother argues that six months is within the "near future" based on the ages of

her children and the circumstances of their current placements. We need not

decide this issue. Even assuming the mother is correct, Swing's testimony is

insufficient to rebut the presumption in RCW 13.34.180(1)(e).

          EFFECT OF CONTINUED PARENT-CHILD RELATIONSHIP

      The mother challenges the adequacy of evidence supporting another

condition: "continuation of the parent and child relationship clearly diminishes the

child's prospects for early integration into a stable and permanent home."
No. 76430-6-1/1 1

RCW 13.34.180(1)(f). This factor "is mainly concerned with the continued effect

of the legal relationship between parent and child, as an obstacle to adoption; it

is especially a concern where children have potential adoption resources." A.C.,

123 Wn. App. at 250.

       As of trial, the children were living with members of the father's family.

Report of Proceedings at 91-92, 102. Those placements are described in the

trial court order as "prospective adoptive homes." FF 2.116 (unchallenged).

Adoption "was identified as the permanency plan for the children in permanency

planning orders entered on February 17, 2016. That was 19 months after the

children were placed in out-of-home care. It was four months beyond the

identified timeline under RCW 13.34.145(1)(c) that permanency for the children

should be achieved, not just identified." FF 2.136 (unchallenged). "The

testimony and other evidence was clear that the current placements were not

willing to consider guardianship as an option for these children." FF 2.133

(unchallenged).

       Appellant claims the relationships between her children and their relatives

will continue even if the termination order does not take effect for an additional

six months. Nonetheless, the effect of the continued legal relationship between

the mother and her children is that the adoptions currently cannot go forward.

       The trial court found,"The children are all doing well in their prospective

adoptive homes. They have made good progress in all aspects of their personal

lives since being removed from the mother's care." FF 2.116 (unchallenged).




                                         11
No. 76430-6-1/12

Advocates reported that the children were "happy" and "thriving" in their

placements. FF 2.118-119 (unchallenged).

       The record contains testimony that allowing the dependency process to

continue would inhibit the children from settling into normal routines and feeling

secure in their current placements. A social worker for the family testified that

continuation of the parent-child relationship would keep the children "in limbo":

               [STATE:] Do you have an opinion, then, as to whether or
       not continuation of the parent-child relationship would interfere with
       the children being able to have a stable and permanent home?
               [MCGEE:] As it is right now, yes.
               [STATE:] And why is that?
               [MCGEE:] Because right now the continuation of the parent-
       child relationship means coming to a DCFS office for a visit, means
       that it prevents them from having a normal daily routine that a child
       has in their life, where they can sign up for boxing and band and
       sleepovers with friends, they can have friends over to their house.
       Everything that a child experiences on a daily basis is somehow
       affected by an ongoing dependency case.
               The continuation of the relationship between the parent and
       the child on this level just keeps them in limbo. They don't know
       when it's going to end and they don't really know what forever is
       and where that's going to be.

Report of Proceedings at 138.

       Another social worker provided similar testimony, stating that continuation

of the parent-child relationship would leave the children uncertain about where

they belonged, particularly given the mother's inconsistency in attending

scheduled visitation:

       Again, referring back to the visitation specifically, she's missed 50
       percent of the visits. Since I obtained the case in mid-July, she's
       missed 50 percent of the visits. She's confirmed them beforehand.
       The children were transported to the office. They missed other
       activities that they wanted to do. They get transported for hours
       depending on where they're coming from.


                                         12
No. 76430-6-1/13

             They'll be in limbo. They won't really know kind of where --
      here or there or who family is. I think for them they would be limited
      in regards to what family looks like. What's that going to be like for
      them and really feeling safe and stable. And they need that.
      They've had so much instability and if they continue the visits, it's
      just going to continue.

Report of Proceedings at 469.

       The record adequately supports that continuation of the parent-child

relationship diminishes the children's prospects for early integration into a stable

and permanent home. The trial court correctly found that RCW 13.34.180(1)(f) is

satisfied in the present case.

       Having rejected both of the mother's challenges under RCW 13.34.180(1),

we conclude the trial court did not abuse its discretion by denying her motion to

stay entry of the termination order or continue the matter for six months. The

mother sought a stay or continuance on the basis that she should be granted

additional time to demonstrate progress in her treatment. It was not manifestly

unreasonable to deny this request given the evidence before the trial court.

                            MOTION FOR FINAL VISIT

       On January 5, 2017, the day before entry of the termination order, counsel

for the mother orally requested that the mother be allowed a final visit with her

children. Counsel for the State responded that the motion was not properly

before the court. Counsel also said,"There was some concerns about the

impact on the younger two children." The court ruled, "It's not before me in any

formal manner so I'll just note [defense counsel's] comments and leave it at that."

Defense counsel said that he would "file something formally."



                                         13
No. 76430-6-1/14

       During a hearing the next day, the parties resumed discussion of whether

the mother was entitled to a final visit. Counsel for the State said that he still had

not received a hard copy of the motion and asked that the motion be denied:

"Your Honor, I think it's not timely. I'm going to just ask Your Honor to deny it on

those grounds. It's also technically not in the correct cause numbers since it was

filed in the termination cause numbers and not the underlying dependency."

Report of Proceedings at 935-36. The court agreed:

       It is not timely. So I will not hear it today. The proper notice should
       be given to all parties. I think [the State] is also correct that this is
       filed improperly in the termination cases. It should have been filed
       in the dependency cases. And I'll just leave it at that. This would
       be something that would typically be heard by the court
       commissioner on the Wednesday calendar.

The court told defense counsel to schedule the matter "for the 9:30

Wednesday calendar with proper notice."

       On appeal, the mother claims the trial court erred,by "summarily

dismissing" her motion on procedural grounds when she "had previously made

requests for the visits to which she was entitled until her termination became

final." Brief of Appellant at 26. The mother does not explain why the motion

should have been granted despite the apparent notice problem. The trial court

decision allowed her to pursue the matter before a commissioner, with proper

notice to the State. It is not clear whether she pursued this option. The mother

has not shown the trial court's decision was erroneous.

      The mother assigns error to a number of specific factual findings in the

termination order on the basis that they are not supported by substantial

evidence. Her brief does not contain discussion in support of these assignments

                                          14
No. 76430-6-1/15

of error. In any event, the challenged findings, many of which relate to the

mother's alleged substance abuse and the missed visitation appointments, are

adequately supported by the record.

       In sum, we find no basis fqr reversal. "Courts are always reluctant to

deprive parents of rights with respect to their children, and it is particularly sad

when the parent cares for the child and desires to be a good parent, as appears

to be the case here." In re Aschauer's Welfare, 93 Wn.2d 689, 695, 611 P.2d

1245 (1980). But "it is the court's duty to see that those rights yield, when to

accord them dominance would be to ignore the needs of the child." Aschauer, 93

Wn.2d 695.

       Affirmed.


                                              13,cc.,(4e-K,)              k •
WE CONCUR:



                                               1(.1%IcikoNfj AcT




                                         15
