                                                             FILED
                                                        SEPTEMBER 28, 2017
                                                      In 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

In the Matter of the Parental Rights to       )         No. 34771-1-111
                                              )
E.J.E.G.                                      )
                                              )         UNPUBLISHED OPINION
                                              )
                                              )
                                              )

       PENNELL, J. - J.G. appeals the trial court's order terminating his parental rights to

his infant son, contending the court erred in finding the Department of Social and Health

Services expressly, understandably, and timely offered all necessary services, specifically

a neuropsychological evaluation. We affirm.

                                          FACTS

       J.G.'s son, E.J.E.G., was born at less than 30 weeks gestation with serious medical

issues. 1 In January 2015, the Department filed a dependency petition. After a contested

fact-finding hearing, the court found J.G.'s son to be dependent and entered a

corresponding order in June 2015. In relevant part, the court ordered J.G.'s immediate

participation in a neuropsychological evaluation.


       1 The  mother of J.G.'s son passed away during the pendency of this matter and is
not a part of this appeal.
No. 34771-1-III
In re Parental Rights to E.JE. G.


       Social worker Kathy Bennett referred J.G. to Dr. Scott Mabee for a

neuropsychological evaluation on January 12, 2016. 2 An initial appointment was

scheduled for February 2, but J.G. did not show up and did not attempt to reschedule. On

March 9, 2016, a second social worker, Judy Warren, re-referred J.G. to Dr. Mabee for

the neuropsychological evaluation. In response to this, J.G. let Ms. Warren know he

refused to see Dr. Mabee and would only see a Dr. Smock at Spokane Psychiatry or go to

Eastern State Hospital for the evaluation. Ms. Warren contacted Spokane Psychiatry and

learned it was not contracted with the Department and did not want to contract with the

Department. And because J.G. was not a patient at Eastern State Hospital, that likewise

was not an option. Ms. Warren then contacted Neuroeducation Spokane, who agreed to

conduct the evaluation. Ms. Warren sent J.G. a letter on March 16, 2016, asking him to

contact her if he was willing to be evaluated by that institution. J.G. did not follow up

and no evaluation ever occurred.

       J.G. failed to appear at the termination trial regarding his son. The proceedings

went forward without him and the court heard from two social workers and various




       2
         In its briefing, the Department contends this referral was made in January 2015.
See Br. of Resp't at 5. There is confirmation several times in the record that the referral
for a neuropsychological evaluation with Dr. Mabee initially occurred in January 2016.
See Report of Proceedings (Aug. 22, 2016) at 30, 46, 145.

                                             2
No. 34771-1-III
In re Parental Rights to E.JE. G.


service providers. In general, the witnesses testified that J.G. was resistant to services

and hostile to the Department. Evidence was also presented that J.G. carries a mental

health diagnosis of a personality disorder not otherwise specified, with combined

narcissistic and antisocial personality traits. This diagnosis manifests itself in an attitude

of "I'm special" and "the rules don't apply [to me]." Report of Proceedings (Aug. 22,

2016) at 183-84. Based on this diagnosis, one of J.G.'s prior service providers, clinical

psychologist Dr. Sean Smitham, expressed concern that J.G. would not be able to follow

the recommendations from the providers because J.G. believes he knows best and is the

victim in this situation. Dr. Smitham felt it was unlikely J.G. would benefit from any

services because J.G. did not want to acknowledge any deficits, would resort to anger and

agitation when someone disagreed with him, and lacked the ability to take an objective

look at his behavior.

       The court terminated J.G.'s parental rights to his son, stating J.G. was unwilling to

make the changes needed to meet his son's emotional, physical, mental, and

developmental needs. J.G. appeals.

                                        ANALYSIS

       J.G.'s argument on appeal is that the Department failed to offer him a

neuropsychological evaluation in a timely manner. He points to the six-month delay



                                              3
No. 34771-1-III
In re Parental Rights to E.JE. G.


between the court's initial order requiring an immediate evaluation and the date when a

referral was ultimately made. While J. G.' s arguments regarding the existence of a delay

are persuasive,3 his request for relief ultimately fails as he cannot establish prejudice.

       At a proceeding terminating parental rights, the Department is tasked with proving

by clear, cogent and convincing evidence that it has offered a parent all reasonably

available services capable of addressing parenting deficiencies within the foreseeable

future. RCW 13.34.180(l)(d), .190(l)(a)(i). But the Department is not obliged to prove

it offered services that would have been futile. In re Dependency of TR., 108 Wn. App.

149, 162-63, 29 P.3d 1275 (2001). This is true even if the Department's failure to

provide a particular service is inexcusable. Id. at 164. If the record clearly supports a

conclusion that a given service would not have remedied a parent's deficiencies in the

foreseeable future, "the trial court can make a finding that the Department has offered all

reasonable services." In re Welfare of MR.H, 145 Wn. App. 10, 25, 188 P.3d 510

(2008).

       The record here overwhelmingly supports a finding of futility. J.G. repeatedly

refused to pursue neuropsychological evaluation referrals offered by the Department.



       3
         As set forth above, the record does not support the Department's claim that a
referral was made in January 2015.

                                              4
No. 34771-1-III
In re Parental Rights to E.JE. G.


There is no evidence suggesting J.G. 's responsiveness would have been better had he

been offered services earlier. To the contrary, J.G has, for years, demonstrated an

unwillingness to recognize his parental deficiencies and to consistently work with

professionals to address the parenting problems identified by social workers and the

court. The trial court had substantial evidence to find the Department established the

requirements for termination under RCW 13.34.180(1).

                                    CONCLUSION

      The order terminating J.G.'s parental rights to E.J.E.G. is affirmed.

      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.


                                         Pennell, J.
WE CONCUR:




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