                                                                         FILED 

                                                                     DECEMBER 8, 2015 

                                                                  I n the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





             IN THE COURT'OF APPEALS OF THE STATE OF WASHINGTON 

                                DIVISION THREE 




I   IN THE MATTER OF THE WELFARE) 

    OF

    M.P.,
                                )
                                )
                                )
                                                          No.   32715-9-111 



                                )
                                )                         ORDER WITHDRAWING
                                )                         OPINION
                                )
                                )



          THE COURT on its own motion finds that the opinion filed November 3,2015,

    should be withdrawn:

          THEREFORE, IT IS ORDERED, the opinion filed November 3, 2015, is hereby

    withdrawn and a new opinion will be filed this day.

          PANEL: Judges Fearing, Korsmo, Lawrence-Berrey


          FOR THE COURT:
1
J


I                                                                             FILED
                                                                          DECEMBER 8, 2015
                                                                       I n the Office of the Clerk of Cou rt


I                                                                    W A State Court of Appeals, Division III



ii
              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

     IN THE MATTER OF THE WELFARE                   )
     OF                                             )         No. 32715-9-111
                                                    )
     M.P.                                           )
                                                    )
                                                    )
                                                    )         UNPUBLISHED OPINION

            FEARING, J.     We address again the sad circumstances of the State of Washington

     terminating a parent's rights to a child. J.P. appeals the termination of her rights to the

     care and custody of her young son. We affirm the termination.

                                                FACTS

            J.P., born in 1971, experienced an unfortunate childhood, teenhood, and young

     adulthood. J.P. smoked cigarettes beginning at age nine, drank alcohol at eleven, inhaled

     marijuana at fifteen, snorted cocaine at twenty-five, and consumed methamphetamine at

     thirty. She engaged in theft and prostitution. She attempted suicide at age twelve. She

     now receives Social Security benefits for a learning disability, posttraumatic stress, and

     anxiety. J.P. has lost her parental rights to six children, and another child has been under

     a guardianship since 2000.

            J.P. suffers from bunions that cause chronic pain. J.P. refused to quit smoking
No. 32715-9-II1
In re the Welfare ofMP.


long enough to undergo surgery for the bunions.

       J.P. bore Richard, on April 2, 2010. Richard is a fictitious name and, under the

initials M.P., is the subject of this appeal. J.P. has not identified Richard's father. Based

on J.P.'s substance abuse and mental health illness, a court found Richard dependent in

June 2010.

       As part of Richard's first dependency, Psychologist Walter Mabee evaluated J.P.

in 2010. Dr. Mabee utilized the "Global Assessment of Functioning" (GAF) test, which

measures an individual's functioning ability on a range from one to one hundred, with the

higher number representing higher functioning. Mabee rated J.P. at sixty on the test.

According to Walter Mabee, a score of sixty indicates "moderate impairments and

moderate symptom severity and moderate limitations." Report of Proceedings (RP) at

45. Mabee did not disclose the types of skills measured when assessing one's

functioning and what relationship the assessment bears to parenting.

       Spokane therapist Carla Paullin visited with J.P. three times per month during

2010. Paullin is a licensed mental health and chemical dependency counselor. During

the period that Paullin assisted J.P., J.P. engaged in the Family of Faith recovery

program, which Paullin concluded temporarily changed and improved J.P.'s condition.

Paullin testified at trial: "[Y]ou could see the difference in her. It brought her anxiety

down, it helped her focus." RP at 75. At Paullin's recommendation, the State returned

Richard to his mother's care, and a court dismissed the first dependency action in

                                              2

No. 3271S-9-III
In re the Welfare ofMP.


February 2012.

       In late 2012, J.P. commenced periodically deserting Richard with relatives

because of her chronic pain. The Department of Social and Health Services (DSHS)

received reports that J.P. deposited Richard with inappropriate caregivers and J.P. might

be utilizing unlawful drugs again. Child Protective Services (CPS) employee Leah

Furlong-Nicks investigated. In response, J.P. complained that her brother and sister

wanted to kidnap Richard. She protested harassment by CPS and foster parents. J.P.

agreed to provide a urine sample, but then failed to show to supply the sample. Furlong-

Nicks lost contact with J.P.

       On January 16, 2013, the State of Washington petitioned the trial court to again

declare Richard dependent of the State. The State alleged:

               Since dismissal of [Richard's] Dependency the Department has
       received reports that the mother has relapsed on drugs; has been seen
       prostituting; and has been leaving [Richard] with inappropriate people and
       leaving [Richard] with others for extended periods of time. On 9/2112,
       [J.P.] was arrested for shoplifting.

Ex. 1 at 2. The State identified in its petition J.P.' s labile emotions, tangential speech,

mental health illness, and chronic pain.

       On January 18,2013, J.P. agreed to a shelter care order by which she relinquished

care and custody of Richard to DSHS. The order provided for her son's return to J.P. in

one month if she completed a chemical dependency evaluation, provided four clean urine

samples, and initiated mental health treatment with Carla Paullin.

                                               3

No. 32715-9-III
In re the Welfare ofMP.


       In January 2013, a foster family assumed custody of Richard. Beginning January

2013, John Bain served as Richard's guardian ad litem (GAL) or court appointed special

advocate (CASA). Bain completed his CASA training the previous month.

       In January 2013, J.P. reinitiated mental health counseling with Carla Paullin.

Paullin then suspected J.P. of using illegal drugs because J.P. had lost significant weight

and struggled with coherent thoughts and focused discussions. Paullin acted manic and

spoke paranoically. Paullin concluded that losing seven other children traumatized J.P.

Paullin sought to help J.P. regulate her emotions.

       J.P. tested clean from any unlawful drug use on January 22 and 25,2013. On

February 12,2013, John Dickey at New Horizons evaluated J.P. for chemical

dependency. J.P. reported to Dickey that she last consumed drugs in 2009. Based on a

lifetime of use, Dickey found J.P. chemically dependent on alcohol, cocaine, and

cannabis, but deemed J.P. in remission. J.P. underwent no follow-up chemical

dependency treatment with New Horizons. Dickey recommended continued therapy with

Carla Paullin.

       J.P. tested clean from any drug use on February 13 and 14,2013. Nevertheless,

Richard did not return to his mother's care within the anticipated month of shelter care.

DSHS allowed J.P. to visit Richard in her home.

       On April 2, 2013, J.P. visited Richard, to celebrate his birthday, at Empowering,

Inc., a family preservation services provider. J.P. brought Richard heaps of candy and

                                             4

No. 32715-9-III
In re the Welfare ofMP.


multiple cakes. J.P. acted manic and under the influence of drugs. When Richard

showed more interest in the candy than his birthday party, J.P. grew upset and agitated.

Empowering, Inc. ended the visit early.

       During spring 2013, CASA John Bain observed five of J.P. and Richard's visits,

some at J.P.'s home and some at Empowering, Inc. During trial, Bain described the visits

as chaotic. J.P. arrived late to every visit at Empowering. Once at J.P.'s home, J.P.

presented Richard a bike, but inexplicably quickly altered moods and directed Richard to

brush his teeth. At trial, Bain testified:

               [WJhen I was there present at her visits, I felt like she just kept-like
       she kept like getting distracted by me. She wanted to see how I was doing.
       And, you know, I wasn't-I was there just to see how they interacted. I felt
       like I was just kind of in the way, because she had me and she had­
       someone from Empowering, Inc. would be like supervising it. And it was
       for, obviously, [Richard]. And so I felt like, you know, there was too many
       people in the room when I was there. She just couldn't concentrate on
       [Richard].

RP at 226-27.

       John Bain observed Richard with his foster family five times. Bain found Richard

happy at the foster home.

       On April 4, 2013, the trial court once again declared Richard a dependent of the

State. The trial court identified J.P.'s primary parental deficiency to be her mental health.

The court found that J.P. lacked insight into her interactions with others and failed to

demonstrate the concentration and focus needed to meet Richard's needs. The


                                              5

No. 327 I 5-9-II1
In re the Welfare ofMP.


dependency order required J.P. to submit to random drug testing, complete a

psychological evaluation with Dr. Walter Mabee, follow any recommendations of Mabee,

continue individual therapy with Carla Paullin, obey any recommendations of Paullin,

participate in family therapy and family preservation services, maintain regular visitation

with Richard, demonstrate an ability to meet Richard's physical and psychological needs,

maintain a clean, safe, and nurturing home environment, remain sober, and participate in

a group relapse prevention program. J.P. tested clean from any drug use on April 23 and

May 3,2013.

       On May 6,2013, Dr. Walter Mabee reevaluated J.P. J.P. showed the psychologist

the bunions on her feet and left the evaluation early to retrieve medication. J.P. returned

the next day, at which time Mabee completed the psychological evaluation. Dr. Mabee

believed J.P. to exaggerate her complaints of physical pain. Mabee opined that J.P.

focused on her physical pain to the extent that the focus interfered in her parenting.

       Dr. Walter Mabee opined that J.P. used avoidance to cope with stress. J.P. refused

to answer Mabee's questions about handling stressful situations with Richard. J.P. did

not concede any parenting weaknesses. She boasted that her devotion to God rendered

her a "good and awesome parent." RP at 45. Dr. Mabee noted that a parent who avoids

her deficiencies leads to a child who cannot adjust to his environment.




                                             6

No. 3271S-9-III
In re the Welfare ofJ"J.P.


       Dr. Walter Mabee diagnosed J.P. with "Cluster B features" under the

psychologists' Diagnostic and Statistical Manual. RP at 42-43. Dr. Mabee explained

Cluster B features as:

               the excessive emotionality that she has in her presentation of her
       symptoms and presentation of her life situation; a tendency to go from
       being calm to being kind of more activated and agitated; a tendency to feel
       that others are not treating her in the way that she should be treated and an
       entitlement issue. So it's those types of observations, along with her
       reports that she's always had difficulty coping with anger, being able to
       control her anger, that it boils down to not a specific Axis II diagnosis, like
       a borderline diagnosis or an antisocial diagnosis or histrionic diagnosis or
       narcissistic, but it's a flavor of those types of symptoms in combination. So
       the label of "Cluster B" just kind of subsumes all of that rather than specific
       diagnosis.

RP at 43-44.

       In his 2013 evaluation, Walter Mabee reassessed J.P. at forty-five on the Global

Assessment of Functioning scale. Dr. Mabee testified at trial that this score confirms

significant mental health issues that interfere with social and occupational functioning.

       J.P.'s urinalysis was negative on May 7, 2013.

       On May 10,2013, J.P. took Richard to a physician because Richard purportedly

complained about a painful penis. J.P. asked the physician to circumcise Richard.

Richard did not report any pain to the doctor, and the physician did not diagnose any

ailment. After this incident, the trial court granted DSHS' motion to modify visitation

from unsupervised to supervised visits and to limit visitation locations to Empowering.

       J.P. tested clean from drug use on May 13,2013.

                                             7

No. 32715-9-III
In re the Welfare ofMP.


          Ensuing visits between mother and son under the supervision of Empowering did

not go well. J.P. did not focus on Richard's needs. At one session, J.P. fell asleep while

encouraging Richard to nap with her. Richard routinely returned to his foster home

hungry. J.P.' s attendance at visitation became sporadic, with Richard crying and hitting

his foster siblings when his mother failed to show for a visit. Empowering eventually

refused to transport Richard from foster care until J.P. appeared for a visit.

          J.P. missed some family therapy sessions. When a counselor addressed J.P.'s

parenting of Richard, J.P. diverted the discussion to criticism of CPS and Richard's foster

family.

          On May 20, 2013, the trial court held the first review hearing for Richard's

dependency. The court found that J.P. had participated in some, but not all, court ordered

services. J.P. failed to provide urine samples on April 2, 8, and 10. J.P. failed to progress

in family preservation services, such that the service provider discontinued services. The

court also found that J.P. had not consistently attended therapy with Carla Paullin. J.P.

provided no proof of her participation in the required group relapse prevention program.

The trial court ordered a swift completion of a parenting assessment.

          In July 20l3, J.P. saw Carla Paullin for the last time. In late July 2013, J.P. visited

Richard at Empowering and took Richard to a nearby restaurant. During the walk to the

restaurant, Richard ran into traffic without intervention from J.P. In the restaurant's

lobby, Richard sat in a chair while J.P. bent over and scolded him for unsuccessful visits.

                                                 8

No. 32715-9-III
In re the Welfare ofMP.


An Empowering employee intervened, separated Richard from J.P., and demanded J.P.

leave.

         In September 2013, J.P. became homeless. Ostensibly, J.P.'s landlord evicted her,

although J.P. denied any eviction. DSHS could only sporadically contact J.P. thereafter.

                                        PROCEDURE

         On September 13,2013, the State of Washington petitioned the trial court to

terminate the parent-child relationship between J.P. and Richard.

         On October 1,2013, the trial court reduced J.P.'s visitation with Richard to two

hours twice a week and ordered this visitation to include two hours of therapeutic

visitation. On October 15, 2013, the trial court held a permanency planning hearing for

Richard. The court found that J.P. visited Richard only sporadically. J.P. excused her

missing visits on illness and the lack of a telephone. In an October 15 order, the trial

court listed as the services unsuccessfully completed: chemical dependency screening,

recommended substance abuse evaluation and treatment, random drug testing,

psychological evaluation, following any psychological evaluation recommendations, and

family therapy. Notably absent from this list of uncompleted services was the originally

ordered group relapse prevention program. Nevertheless, J.P. still had not participated in

a relapse prevention program.

         In January 2014, DSHS social worker Shana Piper assumed case worker duties for

Richard's care. J.P. then resided in jail. After J.P. left jail, Piper arranged for J.P. to visit

                                                9

No. 32715-9-111
In re the Welfare ofMP.


Richard at a new location, Fulcrum. At Fulcrum, lP. focused on punishing Richard for

unknown reasons, while Richard ignored his mother.

       On February 4,2014, the trial court held another dependency review hearing.

During the review period, J.P. submitted to no drug testing. The court found J.P.

noncompliant with her mental health treatment and relapse prevention program. Like the

October 2013 review order, the February review order lists all services as incomplete, but

omits group relapse prevention from the list.

       In March or April 2014, J.P. phoned therapist Carla Paullin. Paullin attempted to

return J.P.'s call, but J.P.'s phone was disconnected. In April 2014, at J.P.'s request,

Shana Piper switched visitation from Fulcrum to the American Indian Center. At trial,

Shana Piper explained that if a parent misses three scheduled visits at a visitation center,

the DSHS referral to that center lapses. J.P. repeatedly missed visits, so Piper repeatedly

issued new referrals to additional visitation centers.

       At the start of May 2014, J.P. lost her social security income because of her recent

jailing. J.P. remained homeless.

       Trial on the termination petition proceeded on May 8 and 9, 2014. At the

beginning of trial, lP. 's counsel moved to continue trial to a later date, because lP. was

missing. The trial court phoned J.P., who expressed a desire to enter treatment. The trial

court gave lP. until 10:00 a.m. that morning to come to the courthouse. J.P. refused

defense counsel's offer to arrange transportation. Trial started without her.

                                              10 

No. 32715-9-III
In re the Welfare ofMP.


          During trial, Carla Paullin testified that J.P. 's mental health illness prevented her

from prioritizing a child's needs. Paullin testified that medication might permit J.P. to

attend to a child's needs, but J.P. refused medication. Paullin believed that J.P. suffered

physical pain, but thought J.P. exaggerated the pain. According to Paullin, J.P. failed to

participate in mental health therapy during the second dependency.

          Psychologist Walter Mabee also testified during trial. Dr. Mabee opined that,

even if J.P. fully engaged in mental health treatment, she would not improve significantly

within the first three to six months of treatment. According to Dr. Mabee, J.P. needed

nine to twelve months at least, and more likely two to four years, to improve her mental

health.

          DSHS social worker Wendy Seignemartin testified. Seignemartin was the first

caseworker assigned to Richard's case. Seignemartin identified J.P.'s parental

deficiencies as her mental health illness and chemical dependency. As a result of these

deficiencies, J.P. could not consistently meet Richard's needs. Wendy Seignemartin

described Richard as integrated into his foster family, who wished to adopt him.

Seignemartin testified that continuing J.P. and Richard's parent-child relationship

diminished Richard's ability to integrate into a permanent home. According to

Seignemartin, termination of his natural mother's parental rights served Richard's best

interest.




                                                 11 

No. 32715-9-III
In re the Welfare ofMP.


       Wendy Seignemartin testified at trial that someone referred J.P. to Alcohol

Anonymous and Narcotics Anonymous, and Carla Paullin referred J.P. to New Horizons

Relapse Prevention Program. The trial court asked Seignemartin: "How does she know

where to goT' RP at 136. Seignemartin responded inartfully:

              Well, and that was something that was-she-her therapist had
       recommended. So I-I would say I-I did not provide that one
       specifically.

RP at 136. Seignemartin added that J.P. needed to access such a program "through her

medical." RP at 136. One might deduce from this comment that DSHS expected J.P. to

arrange and pay for services through medical insurance. Seignemartin, however,

declared that J.P. reported attending a relapse prevention program named Celebrate

Recovery.

       CASA John Bain testified at trial that termination of the mother's rights furthered

Richard's best interests. Bain maintained that J.P. garnered a weak relationship with

Richard and J.P. had no ability to calm Richard. In contrast, Bain described the foster

parents as providing a loving home with good structure. Bain noted that the foster

parents sought adoption of Richard.

      One year had passed between John Bain's last observations of J.P. with Richard

by the time ofBain's trial testimony. During trial, Bain admitted to ceasing observation

of J.P.' s visit because he was uncomfortable during the visits. Bain did not know that

DSHS shifted visitation from Empowering to Fulcrum. John Bain testified: "I must

                                            12 

No. 32715-9-111
In re the Welfare ofUP.


have-I must have missed that e[-]mail, I guess." RP at 228. Bain also testified he was

unaware that visitation transferred from Fulcrum to American Indian Center. Bain stated

he also missed that e-mail.

       The trial court ordered the termination of J.P. 's parental rights to Richard. On July

25,2014, the trial court entered findings of facts, conclusions of law, and the order of

termination. On August 21, a superior court commissioner amended the findings,

conclusions, and order to clearly terminate any parental interest. The amended findings

include:

             Services court-ordered under RCW 13.34.130 have been expressly
      and understandably offered or provided and all necessary services,
      reasonably available, capable of correcting parental deficiencies within the
      foreseeable future have been offered or provided.

             There is little likelihood that conditions will be remedied so that the
      child can be returned to the parent(s) in the near future.

             [J.P.] is currently unfit to parent [Richard]. [J.P.'s] mental health is
      not stable, she is homeless, likely using drugs and unable to physically or
      emotionally protect her son. She has been largely unengaged in services
      and visitation since the summer of2013.

             It is in the child's best interests to terminate the parent-child
      relationship.

Clerk's Papers at 85-89.

                                 LA W AND ANALYSIS

      The State must prove many elements before terminating a parent's constitutional

rights to the care and custody ofa child. J.P. contends insufficient evidence supported

                                             13 

No. 32715-9-II1
In re the Welfare ofMP.


some of those elements and the trial court's findings that the State proved the elements.

J.P. contends that the trial court erred when finding that: (1) the State provided her all

necessary and reasonably available services, (2) her parental deficiencies were unlikely to

be remedied in Richard's near future, and (3) termination was in Richard's best interests.

J.P. also contends that John Bain, the CASA, so failed to conduct a thorough and

independent investigation that the failure violated her and Richard's right to due process.

We disagree with each contention.

       Termination of parental rights is a two-step process. In re Welfare ofCB., 134

Wn. App. 942,952, 143 PJd 846 (2006). First, the State must show that six statutory

requirements under RCW 13 .34.180( 1) are established by clear, cogent, and convincing

evidence. RCW 13.34. 190(1)(a)(i). This means the State must show that the relevant

ultimate facts in issue are "highly probable." In re Dependency ofK.R., 128 Wn.2d 129,

141,904 P.2d 1132 (1995); In re Welfare ofSego, 82 Wn.2d 736, 739, 513 P.2d 831

(1973). Second, the State must show a termination order serves the best interests of the

child. RCW 13.34.190(1)(b). The trial court must find by a preponderance of the

evidence that termination is in the best interests of the child. In re Welfare ofMR. H.,

145 Wn. App. 10,24, 188 PJd 510 (2008).

       J.P. challenges some the trial court's factual findings that underlay its termination

of her parental rights. The trial court's factual findings under the first step, for RCW

13 J4 .180( 1), must be upheld if supported by substantial evidence from which a rational

                                              14 

No. 32715-9-II1
In re the Welfare ofMP.


trier of fact could find the necessary facts by clear, cogent and convincing evidence. In

re Dependency ofCB., 61 Wn. App. 280, 286,810 P.2d 518 (1991). Likewise, the trial

court's factual findings under the second step, RCW 13.34.l90(1)(b), must be upheld if

supported by substantial evidence from which a rational trier of fact could find the

necessary facts by a preponderance. In re Dependency ofH. W, 92 Wn. App. 420,425,

961 P.2d 963,969 P.2d 1082 (1998). Because only the trial court has the opportunity to

hear the testimony and observe the witnesses, its decision is entitled to deference and this

court will not judge the credibility of the witnesses or reweigh the evidence. In re

Welfare ofMR.H., 145 Wn. App. at 24.

                                   Provision of Services

       Under one of the six statutory requirements, the State must establish that it

provided services to J.P. to correct deficient parenting skills. When DSHS seeks to

terminate a parent's rights, it must show by clear, cogent, and convincing evidence:

              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.

RCW 13.34. 180(1)(d). RCW 13.34.136 further addresses services to the parent and

reads, in pertinent part:




                                             15 

No. 32715-9-111
In re the Welfare ofMP.


               (2) The agency supervising the dependency shall submit a written
       permanency plan to all parties and the court not less than fourteen days
       prior to the scheduled hearing ....

              (b)(i) The ... supervising agency's plan shall specify what services
       the parents will be offered to enable them to resume custody, what
       requirements the parents must meet to resume custody, and a time limit for
       each service plan and parental requirement.

              (b )(vii) The supervising agency or department shall provide all
       reasonable services that are available within the department or supervising
       agency, or within the community, or those services which the department
       has existing contracts to purchase. It shall report to the court if it is unable
       to provide such services.

       To meet its statutory burden, the State must tailor the services it offers to meet

each individual parent's needs. In re Dependency ofT.R., 108 Wn. App. 149, 161,29

P.3d 1275 (2001). The State must provide all court-ordered and necessary services to the

parent. In re Dependency ofD.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004).

Nevertheless, the court may consider any service received, from whatever source, bearing

on the potential correction of parental deficiencies regardless of whether the State

provides or arranges for the service. In re Dependency ofD.A., 124 Wn. App. at 651-52.

The State need not offer services when a parent is unable to benefit from the services. In

re Welfare of5.J., 162 Wn. App. 873, 881,256 P.3d 470 (2011). Even when the State

inexcusably fails to offer a service to a willing parent, termination is appropriate if the

service would not have remedied the parent's deficiencies in the foreseeable future. In re

Welfare of5.J., 162 Wn. App. at 881.


                                              16 

No. 327l5-9-II1
In re the Welfare ofMP.


       J.P. contends insufficient evidence supports the trial court's findings that the State

supplied all necessary and reasonably available services. J.P. identifies five services the

State failed to deliver: a relapse prevention program, a parenting evaluation, a medication

consultation, medical care for her bunions, and housing assistance. We agree that the

State failed to provide the five categories of services, but note that the evidence showed

that J.P. received one service elsewhere, the State could not provide some of the services

because of J.P.'s failure to cooperate, and the services would not have remedied J.P.'s

parental deficiencies.

       The undisputed evidence established that the State failed to offer a group relapse

prevention program to J.P. DSHS caseworker Wendy Seignemartin testified she did not

refer J.P. to a relapse prevention program because ofthe absence of a contract for such a

service. Nevertheless, Seignemartin never informed the court of the unavailability of this

program as RCW 13.34.136 requires. Furthermore, Seignemartin indicated J.P. needed

to access such a program "through her medical." RP at 136. Seignemartin delivered no

testimony that she informed J.P. that J.P. needed to arrange this service for herself.

Nevertheless, despite DSHS' failure to offer the program, J.P. reported that she attended

a relapse prevention program named Celebrate Recovery. The provision of the service by

another entity supports the trial court's finding that J.P. received needed services.

       As part of the dependency action, the trial court ordered a parenting evaluation,

but the State failed to offer J.P. such an evaluation. The State argues that the court's

                                             17 

No. 32715-9-II1
In re the Welfare ofMP.


ordering of this service was a scrivener's error. An early order listed the service but no

later order repeated the need for an evaluation. We disagree with the State's argument,

but do not reverse on this ground. The trial court ordered the evaluation in May 2013.

Thereafter J.P. disengaged from services. An evaluation would not have corrected the

parental deficiencies.

       The trial court never ordered a medication consultation and one might question the

reasonableness and necessity for a consultation. Carla Paullin testified that J.P. refused to

take medication for her mental health issues, suggesting that a medication consultation

would have been pointless. J.P. reported chronic pain from bunions to most providers.

Each believed J.P. exaggerated her pain, a symptom of her poor mental health. J.P.

refused to quit smoking long enough to get surgery for the bunions.

       The trial court never ordered housing assistance. Nevertheless, J.P. halfheartedly

and inconsistently participated in services when she had adequate housing. By the time

J.P. needed housing assistance in September 2013, J.P. had stopped attending mental

health therapy.

                         Timely Remedy of Parental Deficiencies

       J.P. next contends insufficient evidence supports the trial court's findings that

J.P.'s parental deficiencies were unlikely to be remedied in Richard's near future. Under

RCW 13.34.l80(1)(e), DSHS must show:




                                             18 

No. 32715-9-III
In re the Welfare ofMP.


              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. In determining whether the conditions will be remedied the court
      may consider, but is not limited to, the following factors:
              (i) Use of intoxicating or controlled substances so as to render the
      parent incapable of providing proper care for the child for extended periods
      of time or for periods of time that present a risk of imminent harm to the
      child, and documented unwillingness of the parent to receive and complete
      treatment or documented multiple failed treatment attempts;
              (ii) Psychological incapacity or mental deficiency of the parent that
      is so severe and chronic as to render the parent incapable of providing
      proper care for the child for extended periods of time or for periods of time
      that present a risk of imminent harm to the child, and documented
      unwillingness of the parent to receive and complete treatment or
      documentation that there is no treatment that can render the parent capable
      of providing proper care for the child in the near future; or
              (iii) Failure of the parent to have contact with the child for an
      extended period of time after the filing of the dependency petition if the
      parent was provided an opportunity to have a relationship with the child by
      the department or the court and received documented notice of the potential
      consequences of this failure, except that the actual inability of a parent to
      have visitation with the child including, but not limited to, mitigating
      circumstances such as a parent's current or prior incarceration or service in
      the military does not in and of itself constitute failure to have contact with
      the child.

(Emphasis added.)

      The "near future" is a key term in RCW 13 .34.180( 1)(e). The parental

deficiencies must be remedied such that the child may be returned to the parent in the


                                            19 

No. 32715-9-II1
In re the Welfare ofMP.


"near future." "Near future" is determined from the child's point of view. In re

Dependency ofA.C., 123 Wn. App. 244,249,98 P.3d 89 (2004). What constitutes "near

future" depends on the age of the child and the circumstances of the child's placement.

In re Dependency ofTL-G., 126 Wn. App. 181,205, 108 P.3d 156 (2005).

       Washington cases support the proposition that the younger the child the shorter is

the "near future." A matter of months for young children is not within the foreseeable

future to determine if there is sufficient time for a parent to remedy his or her parental

deficiency. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). Eight months was not

in the foreseeable future of a four-year-old. In re Welfare ofHall, 99 Wn.2d 842, 844,

664 P .2d 1245 (1983). One year was not in the foreseeable future of a three year-old. In

re A. W, 53 Wn. App. 22, 31-32, 765 P.2d 307 (1988). Six months was not foreseeable in

the near future ofa 15 month-old. In re Dependency ofP.D., 58 Wn. App. 18,27,792

P.2d 159 (1990).

       The focus ofRCW 13.34.l80(1)(e) is "whether the identified deficiencies have

been corrected." MR.H, 145 Wn. App. at 27. Even when there is evidence that the

parent may eventually be capable of correcting parental deficiencies, termination is still

appropriate when deficiencies will not be corrected within the foreseeable future. In re

Dependency ofA. W, 53 Wn. App. at 32. The State need not give a parent an unlimited

time to become a fit parent. In re Dependency ofTR., 108 Wn. App. at 167 (2001).

When it is eventually possible, but not imminent, for a parent to be reunited with a child,

                                             20 

No. 32715-9-III
In re the Welfare ofUP.


the child's present need for stability and permanence is more important and can justify

termination. T.R., lOS Wn. App. at 166.

       The State argues that the one year rebuttable presumption in RCW 13.34.lS0(1)(e)

applies to J.P.'s proceedings. The presumption only arises if the State showed it offered

all necessary services reasonably capable of correcting J.P.' s parental deficiencies.

Because the State did not offer all services even ordered by the trial court, we decline to

employ the presumption.

       We need not apply the presumption ofRCW 13.34.lS0(1)(e) to affirm the trial

court since clear, cogent, and convincing evidence supports the trial court's finding that

J.P. would not cure her parental deficiencies in Richard's near future. J.P. challenges the

trial court's finding by highlighting contradictory evidence, not undisputed evidence. J.P.

underscores that Wendy Seignemartin estimated Richard's near future at six to twelve

months, while Dr. Walter Mabee testified that J.P. 's mental health could improve within

nine months, if J.P. complied with necessary services. Nevertheless, Dr. Mabee also

testified that J.P. would need two to four years for fuller stabilization. This court does

not reweigh the evidence, and the trial court could have accepted the longer period as the

time needed for J.P. to cure her deficiencies.

       J.P.'s argument predominantly fails because the contention assumes she would

comply with services in the near or immediate future. The weight of evidence indicates

that J.P. would not cooperate with service providers and suffer needed services for the

                                             21 

No. 32715-9-III
In re the Welfare ofMP.


ensuing nine to twelve months. By the date of trial, J.P. had refused to visit Carla

Paullin, her mental health therapist, for one year. Unlike the first dependency, J.P. failed

to consistently participate in mental health therapy. J.P. repeatedly failed to show for

visits with Richard. DSHS caseworkers encountered increasing difficulty in contacting

J.P.

       A parent's unwillingness to avail herself of remedial services within a reasonable

period bears relevance to a trial court's determination as to whether the State has satisfied

RCW l3.34.180(1)(e). In re Welfare ofT.B., 150 Wn. App. 599, 608,209 P.3d 497

(2009). Substantial evidence supports our trial court's finding.

                                  Richard's Best Interests

       The second step in the State's burden in a parental termination case involves

proving by a preponderance of evidence that termination is in the child's best interest.

RCW 13.34.190(l)(b). As noted in In re Welfare ofA.B.:

                By virtue ofRCW l3.34.180(1) and RCW l3.34.190, a Washington
       court uses a two-step process when deciding whether to terminate the right
       of a parent to relate to his or her natural child. The first step focuses on the
       adequacy of the parents and must be proved by clear, cogent, and
       convincing evidence. The second step focuses on the child's best interests
       and need be proved by only a preponderance of the evidence. Only if the
       first step is satisfied may the court reach the second.

168 Wn.2d 908,911,232 P.3d 1104 (2010) (footnotes omitted). No specific factors are

involved in a best interest determination, and each case must be decided on its own facts

and circumstances. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). When a parent

                                              22 

No. 3271S-9-III
In re the Welfare ofMP.


has failed to remedy her parental deficiencies over a lengthy dependency, a court is

justified in finding termination is in the child's best interest rather than leaving the child

in the limbo of foster care for an indefinite period while the parent seeks to rehabilitate

herself. In re Dependency ofTR., 108 Wn. App. at 167 (2001).

       J.P. contends insufficient evidence supports the trial court's findings that

termination was in Richard's best interests. She highlights the love and bond she and

Richard shared. The trial court recognized that J.P. loves her child. Despite that love,

substantial evidence supports the trial court's finding that termination was in Richard's

best interests. Dr. Walter Mabee diagnosed J.P. with serious, significant mental health

impediments that interfere with social and occupational functioning. J.P. presented as

suspicious and unstable. J.P. took Richard to a physician and requested an unnecessary

circumcision. Carla Paullin testified that lP.'s various mental health issues prevent her

from prioritizing a child's needs. Wendy Seignemartin believed termination to be in

Richard's best interest, so he could achieve permanence with adopting parents. Richard

lived happily and integrated with his foster home.

                                     CASA Investigation

       J.P. contends that John Bain, Richard's guardian ad litem or CASA, neglected to

conduct a thorough and independent investigation and his failure violated her and

Richard's right to due process. The terms CASA and guardian ad litem are synonymous

in this context, and we will employ the term CASA.

                                              23
No. 32715-9-III
In re the Welfare ofMP.


       Both the United States and Washington Constitutions recognize a parent's

fundamental liberty interest in the care and custody of her child. U.S. CONST. amends. V,

XIV; WASH. CONST. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982); In re Custody ofSmith, 137 Wn.2d 1, 13-14,969 P.2d 21

(1998). That right cannot be abridged without due process oflaw. U.S. CONST. amend.

XIV; In re Dependency ofA.MM, 182 Wn. App. 776, 790-91,332 P.3d 500 (2014).

Accordingly, parental termination proceedings are afforded strict due process protections.

In re Darrow, 32 Wn. App. 803, 806,649 P.2d 858 (1982).

       Due process requires that parents have notice, an opportunity to be heard, and the

right to be represented by counsel. In re Welfare ofKey, 119 Wn.2d 600, 611, 836 P.2d

200 (1992); In re Welfare ofMyricks, 85 Wn.2d 252,254,533 P.2d 841 (1975). More

specifically, the due process protections afforded parents in a termination hearing include

notice, open testimony, time to prepare and respond to charges, and a meaningful hearing

before a competent tribunal in an orderly proceeding. In re Dependency ofH. w., 70 Wn.

App. 552, 555 n.1, 854 P.2d 1100 (1993); In re Moseley, 34 Wn. App. 179, 184,660 P.2d

315 (1983). The trial court must ensure that the parent is afforded a full and fair

opportunity to present evidence or rebut evidence presented against her. A.MM, 182

Wn. App. at 791. No decision imposes a requirement of a CASA in order to satisfy the

due process clause, let alone any minimum standard for a CASA's investigation.




                                             24 

No. 3271 S-9-III
In re the Welfare ofMP.


       Under RCW 13.34.l00(1): "The court shall appoint a guardian ad litem for a child

who is the subject of an action under this chapter, unless a court for good cause finds the

appointment unnecessary." "If a party reasonably believes that the appointed guardian ad

litem lacks the necessary expertise for the proceeding," within three days of the

appointment, the party may move for substitution of the appointed CASA. RCW

13.34.102(2)(c). J.P. did not seek to remove John Bain.

      A CASA assumes an important role in a parental termination case.

             Judges are forced to make incredibly difficult and important
      determinations. The judge must rely upon the information provided by
      others. GALs and volunteer CASAs are invaluable to courts. They are
      often the eyes and ears of the court and provide critical information about
      the child and the child's circumstances.

In re DependencyofM8.R., 174 Wn.2d 1,20-21,271 P.3d 234 (2012). Unless a court

directs otherwise, a CASA holds the duties:

              (a) To investigate, collect relevant information about the child's
      situation, and report to the court factual information regarding the best
      interests of the child;
              (b) To meet with, interview, or observe the child, depending on the
      child's age and developmental status, and report to the court any views or
      positions expressed by the child on issues pending before the court;
              (c) To monitor all court orders for compliance and to bring to the
      court's attention any change in circumstances that may require a
      modification of the court's order;
              (d) To report to the court information on the legal status ofa child's
      membership in any Indian tribe or band;
              (e) Court-appointed special advocates and guardians ad litem may
      make recommendations based upon an independent investigation regarding
      the best interests of the child, which the court may consider and weigh in
      conjunction with the recommendations of all of the parties;

                                              2S
No. 32715-9-III
In re the Welfare ofMP.


                  (1) To represent and be an advocate for the best interests of the
          child[.]

RCW 13.34.105(1); see also GALR 3.

       A CASA is not the child's lawyer. MSR, 174 Wn.2d at 21. For purposes of

fulfilling his or her duties, the CASA shall be deemed an officer of the court and thus

immune from civil liability. RCW 13.34.105(2); Kelley v. Pierce County., 179 Wn. App.

566,576,319 P.3d 74, review denied, 180 Wn.2d 1019,327 P.3d 55 (2014).

       lP. forwards a procedural due process claim. A familiar test of procedural due

process arises from Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,47 L. Ed. 2d 18

(1976), in which the Supreme Court directed lower courts to weigh the private interests at

stake, the government's interest, and the risk that the procedures used will lead to

erroneous decisions, when assessing infringement of a party's procedural due process.

Lassiter v. Dep't ofSoc. Servs., 452 U.S. 18,27,101 S. Ct. 2153, 68 L. Ed. 2d 640

(1981).

       J.P. does not contend that RCW 13.34.100 and .105 are constitutionally deficient.

Rather, J.P. contends that John Bain denied Richard and her the process that chapter

13.34 RCW affords. More specifically, J.P. argues that Bain failed in his statutory duties

by focusing on Richard's relationship with his foster family. Bain had not seen Richard

with J.P. for one year when he testified at trial. Thus, J.P. maintains Bain could not

gauge Richard's best interests. J.P. asks this court to apply the Mathews factors and hold


                                                26 

No. 32715-9-111
In re the Welfare ofMP.


that the procedure Richard and she received did not pass constitutional muster.

       The State observes that J.P. did not complain about John Bain's performance at

the trial court level. The State argues that J.P. cannot raise this argument for the first time

on appeal. We agree.

       RAP 2.5(a) provides, in relevant part: "The appellate court may refuse to review

any claim of error which was not raised in the trial court. However, a party may raise the

following claimed errors for the first time in the appellate court ... (3) manifest error

affecting a constitutional right." Washington courts have announced differing

formulations for "manifest error." One articulation is that the error is one "truly of

constitutional magnitude." State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).

Another test is whether the alleged error actually affected the defendant's rights. A

showing of actual prejudice makes the error "manifest," allowing appellate review. State

v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756 (2009). The focus of the actual prejudice

must be on whether the error is so obvious on the record that the error warrants appellate

review. State v. O'Hara, 167 Wn.2d at 99-100.

       We decline to address J.P.'s assignment of error of a neglectful investigation by

the CASA. J.P. did not object to John Bain's initial appointment under RCW

13.34.102(2)(c). J.P. did challenge the foundation ofBain's testimony or his conclusions.

J.P. had a full opportunity to cross-examine Bain in open court and, in doing so, defense

counsel thoroughly exposed the potential weaknesses in his testimony. Even ignoring

                                             27 

No. 32715-9-III
In re the Welfare ofMP.


Bain's testimony, substantial evidence supports the trial court's finding that termination

was in Richard's best interests. J.P. does not enlighten the court as to what helpful

information the CASA may have unearthed if he engaged in a thorougher investigation.

lP. forwards no decision that holds a neglected investigation by a CASA constitutes a

due process violation.

       A case of some relevance is In re Welfare ofTB., 150 Wn. App. 599,209 PJd

497 (2009). In TB., the CASA met with one child twice, the second child once, relative

placements six to eleven times, and the mother whose rights were at issue once. TB.,

150 Wn. App. at 615. The CASA did not communicate with the children during the year

preceding the termination trial. The CASA explained that he had not observed the

children recently because they appeared stable in their placements. Over objection, the

trial court allowed the CASA to testify to the children's best interests, but indicated it

would later decide the weight to afford the CASA's recommendations.

       The mother in TB. argued on appeal that the CASA's investigation breached the

statutory requirements imposed on an advocate. We held:

              The trial court indicated that under former RCW 13 J4.1 OS, it would
      take into account the extent of the GAL's investigation in deciding what
      weight to give the GAL's recommendation. We hold that the trial court
      appropriately considered the GAL's recommendation. Even if we
      determined that the trial court erred, such error would be harmless because
      there is no reason to believe that the trial court's decision would have
      differed without the GAL's recommendation....
              Certain cases establish the standard that a GAL must satisfy to
      justify a finding. This is a case that sets the minimal standards for a GAL

                                             28 

No. 3271S-9-III
In re the Welfare ofMP.


      investigation under the version of former RCW l3.34.10S in effect at the
      time of this termination hearing. As we have noted, it would not be
      adequate under the new requirements, but we have examined the record and
      are satisfied that an investigation took place. We agree with the State that it
      was "not the most thorough investigation possible." Br. of Resp't at 26.
      We hold that the court did not err in considering the GAL's
      recommendation and giving it the appropriate weight considering the lack
      of current personal contact with the children.

T.E., ISO Wn. App. at 61S-16.

                                     CONCLUSION

      We affirm the trial court's termination of lP.'s parental rights to Richard.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



      Kors~

In.,,,,'-"'       ~v.r-<"I'
              '!. <..   -
      Lawrence-Berrey, J.




                                            29 

