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                                                                            FILED
                                                                          MAY 24, 2016
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division Ill

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

In the Matter of the Termination of            )
Parental Rights to                             )               No. 33289-6-111
                                               )              (consolidated with
F.H.                                           )               No. 33290-0-111)
                                               )
and                                            )
                                               )
D.H.                                           )         UNPUBLISHED OPINION
                                               )

       SIDDOWAY, J. -After an almost four-year dependency and a two-day trial, the

trial court entered an order terminating the appellant mother's parental rights to two of

her children. The mother appeals the order, arguing the court erred when it found that the

Department of Social and Health Services (DSHS) provided her with all necessary

services to correct her parental deficiencies and that she is currently an unfit parent.

       We find no error and affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       The appellant is the mother of 10 children, her parental rights to two of whom are

at issue in this appeal.

       On May 19, 2011, DSHS caseworkers filed dependency petitions in Pend Oreille

County, asking the court to declare the two children dependent. At the time, the two

children-both boys-were ages 6 and 4 (almost 5).
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H.


        This was the third dependency filed with respect to these two children. The first

was an in-home dependency initiated in Spokane County in June 2007. It lasted for eight

months, through February 2008.

        The second was filed five months later, in July 2008, again in Spokane County,

although it was transferred to Pend Oreille County. It lasted 20 months, through March

2010. The second concluded with an award of custody of the boys 1 to their father.

        The third was filed a little over one year later, after the father failed to pick up the

younger son from Head Start.

        An order of dependency and disposition order as to the mother was not entered for

18 months, which we surmise was because the assigned DSHS caseworker had a history

with the family and proceeded directly to offer services. The social worker, Kathy

Bennett, had been assigned to the second dependency when it was transferred to Pend

Oreille County. According to Ms. Bennett, the three dependencies involved overlapping

issues of mental health problems, possible substance abuse, and domestic violence in the

home.

        During the second dependency, the mother was referred to Dr. Jennifer Van Wey,

a clinical psychologist, for a neuropsychological evaluation. Dr. Van Wey, who

conducted the evaluation in 2009, diagnosed the mother with post-traumatic stress


        1
         All of our references to "the boys" and "the sons" are to the children who are
parties to the termination orders on appeal.

                                                2
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination ofF.H


disorder (arising from exposure to sexual abuse as an adolescent and later, secondary

exposure having family members in a crisis); bipolar disorder, mixed type, without

psychotic features; and personality disorder, not otherwise specified, with narcissistic,

dependent and histrionic traits. She observed that the mother had "poor judgment and

follow-through" and demonstrated poor medication compliance. Report of Proceedings

(RP) at 33. Dr. Van Wey's opinion at the time of her 2009 evaluation was that in

combination, the mother's mental issues were "very debilitating" and children in her care

would "absolutely [be affected]." RP at 33-34. Her prognosis for the mother was

"guarded." RP at 35. Dr. Van Wey's recommendation for the mother included a

chemical dependency evaluation, a psychiatric evaluation, a neurological evaluation, and

a parenting attachment evaluation.

       After the third dependency was filed, Ms. Bennett initially referred the mother for

a psychological evaluation with Dr. Sean Smitham, an attachment assessment with Carol

Thomas, parenting and family therapy with Amanda Clemons, and hair follicle tests to

detect substance use.

       Dr. Smitham, a clinical psychologist, conducted a psychological evaluation of the

mother based on three visits that began in April 2012. He diagnosed her with

undifferentiated somatoform disorder, and schizotypal personality disorder with features

of narcissistic, histrionic or dependent traits. Undifferentiated somatoform disorder is

described as one or more physical complaints, not feigned, that persist for six months or

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Il   No. 33289-6-111 (consol. w/ 33290-0-111)
l    In re the Termination ofF.H.


     longer, cannot be fully explained by any known general medical condition, and that cause

     clinically significant distress or impairment in functioning. AM. PSYCHIATRIC Ass'N,

     DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS§ 300.82, at 490-91

     (4th rev. ed. 2000) (DSM-IV-TR). Schizotypal personality disorder is described as "a

     pervasive pattern of social and interpersonal deficits marked by acute discomfort with,

     and reduced capacity for, close relationships as well as by cognitive or perceptual

     distortions and eccentricities of behavior." Id. § 301.22, at 697. Although his diagnoses

     differed from Dr. Van Wey's, he believed that both their diagnoses "capture similar sort

     of content, maybe emphasizing or de-emphasizing certain areas." RP at 60.

            Dr. Smitham recommended individual and family therapy, an updated

     neuropsychological evaluation,2 UAs, and-depending on the results of the UAs-a

     substance abuse evaluation. His prognosis for the mother was "poor to guarded," in light

     of the history of services provided to her without success. RP at 66.

            The mother was also referred for and participated in an attachment assessment

     with Carol Thomas, a therapist and parent-child evaluator, in April 2012. Her two sons

     were present for the assessment. Its purpose was to assess the nature and quality of her

     relationship and interaction with the boys. During the assessment, the older boy, then age


            2
             A psychological evaluation of the sort done by Dr. Smitham takes into account
     an individual's current emotional state, their emotional functioning, and their intellectual
     functioning. A neuropsychological evaluation of the sort performed in 2009 by Dr. Van
     Wey goes beyond that, examining neurocognitive functioning as well.

                                                  4
No. 33289-6-111 (consol. w/ 33290-0-111)
In re the Termination of F.H.


seven and a half, did not use his mother as a source of security, emotional support, or

regulation. He acted, instead, in a disrespectful, challenging, and sometimes violent

manner toward her. He discounted statements she made, claiming she did not know

anything, and called her "crazy" and a "bad mom." RP at 171. While the mother tried to

direct and redirect his behavior, none of her efforts worked. Based on the assessment,

Ms. Thomas recommended the mother participate in mental health counseling, a

neuropsychological evaluation, a psychiatric evaluation, a chemical dependency

evaluation, and follow all recommendations. She also recommended the mother and her

two sons participate in family therapy.

       In October 2012, Ms. Bennett referred the mother for family therapy, including

parenting instruction. The mother and her sons engaged in 16 sessions with Amanda

Clemons, a mental health counselor. One goal of the sessions was for the mother to

"establish herself as a consistent and-predictable caregiver." RP at 82-83. Other goals

were for the two boys to "develop a healthy attachment to their mother," and "learn to see

their mother as an authority figure." RP at 83.

       According to Ms. Clemons, the mother was never able to establish herself as an

authority figure or as a consistent or predictable caregiver before services were

terminated on account of her failure to abide by an attendance agreement. 3 Ms. Clemons


       3
        After showing up late for a session, the mother was required to enter into an
attendance contract that required her to call on the morning a session was scheduled, to

                                             5
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H.


viewed her as making "little to no progress" during the 16 sessions. RP at 90. She also

reported that the mother did not take full advantage of information and strategies offered.

Since the boys were not able to develop a healthy attachment to their mother, Ms.

Clemons recommended that DSHS pursue a permanent plan for the children "outside of

[the mother's] full-time care." RP at 89.

       When the disposition order for the mother was filed on November 1, 2012, it

required her to "(a) Successfully complete a neurological assessment by a provider

approved by the parties and follow all recommendations[,] (b) Successfully engage in

[the then-ongoing] parenting/attachment therapy with Amanda Clemons or other

mutually-approved provider and follow all recommendations[, and] ( c) Participate in a

drug/alcohol evaluation by a provider approved by the parties and follow any

recommended chemical dependency counseling include [sic] UA/BA/hair follicle

testing." Ex. PET 1 at 5 (Order of Dependency).

       On May 23, 2013, two years after the third dependency had been commenced, the

State filed a petition to terminate both parents' parental rights to the two boys. The father

did not enter an appearance or answer the petition, and an order of default was entered

against him in October 2013.




confirm whether she would attend. The contract provided that service would be
discontinued in the event of two failures to call.

                                              6
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H.


       Despite the petition to terminate, and even after the family therapy was

unsuccessful, the mother continued to attend supervised visits with her sons. Between

July 2013 and February 2014, the visit supervisor estimated the mother attended 25 to 30

visits with the boys, missing only one. But the boys, who lived in Pend Oreille County

and would be transported to Spokane for visits, began to balk at attending. 4 It first

happened in April 2012, but Ms. Bennett was thereafter often able to cajole them into

attending. Beginning on February 22, 2014, however, the boys ceased attending entirely.

By the time visits ceased being scheduled, the boys had no-showed for 10 visits since

December 2013.

       In review and other hearings taking place in and after February 20, 2014, the court

found that the mother was not complying with the requirement for a drug/alcohol

evaluation or chemical dependency screening, random UA/BA testing, recommendations

stemming from the psychological evaluation, family therapy, mental health treatment or

individual counseling.

       The termination trial took place on January 7, 2015, and February 2, 2015. The

mother was represented by counsel. The court heard testimony from eight witnesses 5 as

well as a statement from the children's guardian ad litem. A principal issue in dispute



       4
        There was a four hour block of time on Saturdays that the boys would have visits
in Spokane: two hours with their mother, followed by two hours with their father.
       5
           Dr. Van Wey, Dr. Smitham, Ms. Clemons, visit supervisor Joann Carstens, Ms.

                                              7
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination ofF.H.


was the reason why the mother had never received an updated neuropsychological

evaluation or the court-ordered neurological examination. 6

       Ms. Bennett testified that three referrals for an updated neuropsychological

evaluation of the mother (and any recommended therapy) were made in the course of the

third dependency. The practice in making referrals was to send the referral to the

provider, who would then attempt to contact the mother to schedule an appointment. If

the provider was unable to get in touch with the mother, he or she would let Ms. Bennett

know, and she would send a follow-up letter and e-mail to the mother and mother's

attorney.

       The first referral was made in January 2012, to Dr. Van Wey. It did not result in

an appointment; Ms. Bennett testified that a neuropsychological examination "wasn't

court-ordered at that time, so she didn't go." RP at 126. Dr. Van Wey testified similarly

that Ms. Bennett had contacted her office a number of times trying to get the mother in

for an updated evaluation but "[t]hey just haven't been able to get her to get in ... call, or

come, or follow up." RP at 41.

       A second referral made in December 2013 resulted in the scheduling of an

appointment, but the mother no-showed.



Thomas, Ms. Bennett, the children's 17-year-old half-sibling, and the mother.
       6
       The neurological evaluation would have been conducted by a neurologist and
would evaluate whether there was a chemical imbalance in her brain that was causing the

                                              8
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination ofF.H.


       A third referral was made in October 2014, but the provider was unable to contact

the mother. It therefore provided appointment dates and times to Ms. Bennett, who

passed them along, but the mother did not attend or follow up.

       As for the neurological evaluation, Ms. Bennett contacted three providers in an

attempt to schedule one for the mother. Each required a primary care physician's referral

before scheduling an appointment. Ms. Bennett informed the mother of the referral

requirement and told her that DSHS would pay the cost of an appointment with the

mother's primary care physician if the physician would make the referral. The mother

then made an appointment with a clinic but on the day of her appointment, clinic staff

contacted Ms. Bennett, told her that they were a naturopathic clinic, and were "adamant

they would not make a referral." RP at 132. Ms. Bennett testified that at that point, all

she could do was "encourag[e] [the mother] to continue trying with a primary care

physician." RP at 134. 7




mother's odd behavior.
       7
         Ms. Bennett acknowledged the mother was convinced (incorrectly) that the
problem was a financial one (that the neurologist required advance proof of payment)
rather than a medical one. On that score, Ms. Bennett testified that while the third
dependency was pending, the mother stopped receiving medical assistance through the
State. Ms. Bennett communicated with the mother about reapplying for assistance,
explaining that if the mother was denied, the Department could then (and only then)
assist with paying for treatment. According to Ms. Bennett, the mother would not
reapply for State assistance.

                                             9
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H.


       Ms. Bennett testified the boys had been in their current foster care placement since

June 2011. While early on in the dependency, they had told Ms. Bennett they wanted to

go back to living with their father, they later became attached to their foster family and

for the year and a half before the termination trial had expressed their wish to be adopted

by their foster parents. The guardian ad litem also expressed the view that the children's

best interests would be served through terminating the parent-child relationship because

the children had become integrated in their foster home.

       The mother testified on her own behalf, claiming to have participated in all

services made available to her. According to her, if services had not been completed, it

was because Ms. Bennett had not set them up. She admitted that communication between

her and Ms. Bennett had been difficult and it was "partially my fault, partially hers." RP

at 200. The mother acknowledged she did not have a phone and had to communicate

with Ms. Bennett by e-mail, but she thought "most of the time they got through. A lot of

times her answers would get spammed-I don't know why." Id. She testified that her

boys learned the disrespectful behavior they sometimes showed to her from their father,

who was abusive toward her.

       At the conclusion of the testimony, the mother's lawyer argued that the diagnoses

of Dr. Van Wey and Dr. Smitham were inconsistent, and

              So there's a real question as to the validity of what mental health
       issues she has. And you heard extensive testimony about a neurological
       examination that just frankly didn't happen. There were efforts on her part

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l   In re the Termination ofF.H.



'          to make it happen. Social worker testified there were efforts on her part to
           make it happen. Questions still remain about what is the neurological
           situation that [the mother] may be facing. Is there an organic diagnosis that
           needs to be made? Are there-what is going on? We just frankly don't
           know.

    RP at 218. She also argued, "I think the Department can find the financing for an

    evaluation should they find it important, and ... worth doing, and they just-they

    didn't." Id.

           The trial court announced its ruling from the bench, finding that the State had

    proved a basis for termination of the mother's parental rights by clear and convincing

    evidence. Addressing the mother's argument that she had not been provided with the

    recommended examinations, the court stated:

                   Now, were all the services reasonably available capable of
           correcting the parental deficiency in the foreseeable future, were those
           offered. And that narrows down to this neuropsychological evaluation and
           possible-medical treatment for any of the disorders that had been
           identified by the doctors.
                   And there the court finds that by clear, cogent and convincing
           evidence that Ms. Bennett's description of her efforts to work with [the
           mother] to get that accomplished, I find that more credible, or more
           believable. Now I don't in any sense believe that [the mother] is trying to
           mislead the court or anything of that kind, but I do believe that Ms. Bennett
           is in a better position, inasmuch as this is her profession, she has the
           advantage of paper work and written materials to refresh her memory, that
           her recollection about her efforts to set up this neuropsychological
           evaluation-which would have been the next step-is on the record, here,
           and I find that that has been proved.

    RP at 224.



                                                11
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H.


       The court entered an order terminating both parents' parental rights in April 2015.

The mother appeals.

                                        ANALYSIS

       "The fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been model

parents or have lost temporary custody of their child to the State." Santosky v. Kramer,

455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because parents have a

fundamental liberty interest in the custody and care of their children, the State may

terminate parental rights "' only for the most powerful of reasons.'" In re Welfare of S.J,

162 Wn. App. 873, 880, 256 P.3d 470 (2011) (internal quotation marks omitted) (quoting

In re Welfare ofA.JR., 78 Wn. App. 222,229, 896 P.2d 1298 (1995)).

       Washington's termination of parental rights statute responds to this constitutional

command by providing a two-step process before a court may terminate parental rights.

The first step requires that the State prove six statutory elements, the first three of which

are procedural and are seldom in dispute. 8 Where a termination decision is appealed, it is


       8
           The three rarely disputed elements appear at RCW 13.34.180(l)(a)-(c) and
provide:
       (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; [and]
       (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.

                                              12
No. 33289-6-111 (consol. w/ 33290-0-111)
In re the Termination ofF.H.


the State's proof of the remaining elements that are most often challenged-those being

its burden of proving

      [t]hat the services ordered [to be provided to the parent] 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(l)(d);

      [t]hat 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(l)(e); and

      [t]hat continuation of the parent and child relationship clearly diminishes
      the child's prospects for early integration into a stable and permanent home.

RCW 13.34.180(l)(f).

      This first step "focuses on the adequacy of the parents and must be proved by

clear, cogent and convincing evidence." In re Welfare ofA.B., 168 Wn.2d 908, 911, 232

P.3d 1104 (2010) (footnote omitted). "Clear, cogent and convincing evidence exists

when the evidence shows the ultimate fact at issue to be highly probable." In re

Dependency of K.S.C., 137 Wn.2d 918,925,976 P.2d 113 (1999). Proof of the six

statutory elements by clear, cogent and convincing evidence satisfies the requirement of

due process that a parent be found currently unfit before terminating the parent-child

relationship. In re Dependency of K.N.J, 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011).




                                             13
     No. 33289-6-III (consol. w/ 33290-0-III)

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     In re the Termination of F.H


               The second step is for the court to ascertain the best interests of the child. RCW

     13.34.190. "Because the parent's rights will already have been observed in the first step,

     this second step need be proved by only a preponderance of the evidence." A.B., 168

     Wn.2d at 912.

               In this case, the mother challenges the State's proof of only one of the six elements

     provided by RCW 13.34.180(1): that services ordered by the court, or reasonably

     available and capable of correcting her parental deficiencies within the foreseeable future

     had been expressly and understandably provided. RCW 13 .34.180(1 )( d). She also

     challenges the trial court's finding that she was presently unfit to parent. Br. of Appellant

     at 2-3.

               Whether a termination order satisfies statutory requirements is a question of law

     that we review de novo. K.NJ., 171 Wn.2d at 574. "The court's factual findings must be

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

     the necessary facts by clear, cogent, and convincing evidence." K.S.C., 137 Wn.2d at

     925. Evidence is substantial if it is sufficient to persuade a fair-minded person of the

     truth of the fact at issue. S.J., 162 Wn. App. at 881. "The trial judge has the advantage

     of having the witnesses before him or her, and deference to the findings is of particular

     importance in deprivation proceedings." K.S.C., 137 Wn.2d at 925.

               We address the mother's challenges in turn.




                                                    14
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H


                                     Necessary services

       The State's burden of proving it offered or provided all services ordered by the

court or necessary, reasonably available, and capable of correcting the parental

deficiencies within the foreseeable future, requires proof that it offered services "tailored

to each individual's needs." In re Dependency of TR., 108 Wn. App. 149, 161, 29 P.3d

1275 (2001). With respect to necessary services, the mother argues "the State failed to

refer [the mother] to a primary care physician so that she could obtain a recommended

neurological consult," and failed to "offer services to address the effects of the domestic

violence [the mother] suffered and the fact that her children were resisting visits with

her." Br. of Appellant at 2-3.

       In addition to finding the ultimate fact that DSHS had understandably offered or

provided court ordered and other necessary services, the court found:

       Ms. Bennett ... worked very hard to identify appropriate services and
       service providers, and to relay information and referrals to the parents.
       [The mother] was capable of understanding the requirements of the court
       and the referrals from the Department, and was able, if she had chosen, to
       comply with these requirements. . . . The services that were offered and
       provided were appropriate to address the issues with which the parents
       presented, and might have been very efficacious in dealing with their areas
       of parental deficiency.

Clerk's Papers (CP) at 110.

       Substantial evidence supports the trial court's findings. With respect to domestic

violence, evidence was presented that Ms. Bennett made three referrals for the mother to


                                             15
No. 33289-6-111 (consol. w/ 33290-0-111)
In re the Termination of F.H


obtain an updated neuropsychological evaluation and any treatment recommended. As

described by Dr. Van Wey, a part of the clinical interview conducted in a

neuropsychological examination is for the parent to "provide[ ] her-her own personal

history, her personal narrative." RP at 23. In Dr. Van Wey's evaluation in 2009, the

mother did not tell the doctor about domestic violence in her adult life, although she

talked about abuse as a child. As Dr. Van Wey described the clinical interview with the

mother in 2009, "the way she provided information from her history was inconsistent.

She would be vague about talking about her involvement with [Child Protective

Services], while she would be sort of ... overly talkative about other topics that weren't

helpful in terms of the evaluation." RP at 25.

       Ms. Bennett recognized the mother needed an updated neuropsychological

evaluation, hence the three referrals. Such an evaluation would have called on the mother

to disclose domestic violence in her relationship with the boys' father and, if she had

disclosed domestic violence, would have led to individual counseling that was already

part of the referral. But the mother passed on three separate referrals for such an

evaluation, each of which was good for six months.

       It is well settled that the statutory requirement to offer or provide corrective

services does not contemplate an entirely one-way process, and "a parent's unwillingness

or inability to make use of the services provided excuses the State from offering extra

services that might have been helpful." In re Dependency ofRamquist, 52 Wn. App. 854,

                                              16
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H


861, 765 P .2d 30 (1988) (citing In re Welfare of Ferguson, 41 Wn. App. 1, 6, 701 P .2d

513 (1985)).

       As for the neurological evaluation, Ms. Bennett's testimony established she

contacted three providers, explained the need for a physician referral to the mother,

offered that DSHS would pay for what turned out to be the mother's appointment at a

naturopathic clinic, and, when the clinic refused to provide a referral, continued to

encourage the mother to find a primary care physician. The mother provides no authority

for her argument that all of this is insufficient since DSHS did not find her a different

primary care physician. The trial court found that the mother "was capable of

understanding the requirements ... and the referrals ... and was able, if she had chosen,

to comply" and the mother provides no argument that this finding is not supported by the

evidence. CP at 110. It is therefore a verity on appeal. In re A. W., 182 Wn.2d 689, 711,

344 P.3d 1186 (2015).

       Other evidence also calls into question whether the mother desired a closer

examination of any physiological explanation for her behavioral deficits. Both Dr. Van

Wey and Dr. Smitham questioned whether the mother might be engaged in substance

abuse and there were recommendations, and ultimately court orders, requiring chemical

dependency assessments and UAs. Ms. Bennett speculated that the mother abused drugs,

because she was arrested twice on charges related to methamphetamine during the

dependencies, participated in just one UA throughout all of the dependencies, and-

                                             17
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination ofF.H.


despite three referrals-failed, ever, to submit to the hair follicle test ordered by the

court.

         Also, when questioned at trial by her own lawyer about whether she could get a

neurological evaluation at the clinic she was using at that time, the mother-who had

expressed unhappiness about the discord that arose when the naturopathic clinic realized

DSHS wanted a referral it would not provide, answered, "No. I can probably get a

referral (inaudible) neurological evaluation. But I'm really not looking to go through-

being put on the spot like that again." RP at 206 (emphasis added). Substantial evidence

supports the trial court's conclusion that Ms. Bennett was the more reliable witness on

the issue of the neurological evaluation services that DSHS provided and offered to the

mother.

         Finally, the mother does not identify what service should have been offered or

provided to address the fact that her children were resisting visits with her. 9 In addition

to the family therapy that had already been provided, the younger son was engaged in

court ordered individual therapy (which could be expected to provide an opportunity to

work through issues with his mother), and counseling was available to the older son upon

request.


         9
        "Washington courts have held that visitation is not a service for the purposes of
proving RCW 13.34.180(l)(d)." In re Welfare of K.MM, 187 Wn. App. 545,572,349
P.3d 929 (2015), review granted, 184 Wn.2d 1026, 364 P.3d 119 (2016) (citing In re
Dependency ofT.H, 139 Wn. App. 784, 791-92, 162 P.3d 1141 (2007)).

                                              18
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination of F.H


       Ms. Bennett testified that while she succeeded for a time in persuading the boys to

visit with the mother, "eventually it got to the point where that wasn't even working.

And that's when-they just flat would not go. And we cannot force a child into a

vehicle." RP at 140. Ms. Bennett even attempted to set up visits in Newport rather than

Spokane, thinking that the travel might be part of the problem. But the children, who

continued to engage in visitation with their father even after he defaulted in the

termination proceeding, still refused visitation with their mother. Ms. Bennett testified at

the trial that "I still have conversations [with the boys] about them seeing their mother

every month." RP at 145.

       Substantial evidence supports the trial court's finding that all services, court

ordered or otherwise necessary, reasonably available, and capable of correcting the

mother's parental deficiencies in the foreseeable future were expressly and

understandably offered or provided.

                                      Current unfitness

       "[A] parent has a due process right not to have the State terminate his or her

relationship with a natural child in the absence of an express or implied finding that he or

she, at the time of trial, is currently unfit to parent the child." A.B., 168 Wn.2d at 918.

To meet its burden of proof in establishing a parent is currently unfit, the State must

prove by clear, cogent, and convincing evidence that the parent's deficiencies prevent

him or her from providing the child with "' basic nurture, health, or safety.'" In re

                                              19
No. 33289-6-III (consol. w/ 33290-0-III)
In re the Termination ofF.H


Welfare ofA.B., 181 Wn. App. 45, 61,323 P.3d 1062 (2014) (quoting RCW 13.34.020).

While current parental unfitness is implicitly established when the department proves all

six of the statutory elements, see K.N.J., 171 Wn.2d 568, the court can also explicitly

make a finding of parental unfitness-as it did in this case.

       The mother argues that in light of evidence that her visitation with her boys

improved over the duration of the dependency in the eyes of the visitation supervisor and

even Ms. Bennett (though evidently not the boys themselves), the State failed to prove

she was a currently unfit parent at the time of the termination trial.

       Third party perceptions of appropriate interaction in the mother's later visits with

her boys is not sufficient to establish fit parenting. Whether or not the mother and her

children were able to get along for two hours a week between the summer of 2013 and

February 2014, there was testimony from Ms. Clemons and Ms. Bennett that despite the

family therapy, the mother had never acquired the skills as an authority figure and

consistent caregiver.

       The mother is correct that the court lacked current evaluations of her mental health

at the time of the termination trial. Dr. Van Wey's testimony was outdated and the work

of Dr. Smitham, Ms. Clemons, and Ms. Thomas all took place in or about 2012. But it

was the mother's fault that there were not additional and updated evaluations: she refused

later referrals. And there was testimony from the evaluators in 2009 and 2012 that the

mother's failure to participate in recommended services would likely have led to

                                              20
No. 33289-6-111 (consol. w/ 33290-0-111)
In re the Termination of F.H


deterioration in her mental state. Under these circumstances, the absence of updated

evaluations hurts the mother's position; it does not help it.

       Substantial evidence supports the trial court's finding that the mother was a

currently unfit parent at the time of the order terminating her parental rights.

       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.




WE CONCUR:


   a
Fearing~
                      J;:r

Pennell, J.




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