                                                                       FILED 

                                                                   NOVEMBER 3, 2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


IN THE MATTER OF THE WELFARE                 )
OF:                                          )         No. 32715-9-III
                                             )
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                                             )         UNPUBLISHED OPINION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. Jacqueline Pagel appeals the termination of her

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

                                         FACTS

       Jacquelyn Pagel, born in 1971, experienced an unfortunate childhood, teenhood,

and young adulthood. Pagel 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,
     No. 32715-9-III
     In re the Welfare ofMP.


     posttraumatic stress, and anxiety. Pagel has lost her parental rights to six children, and

     another child has been under a guardianship since 2000.

            Jacqueline Pagel suffers from bunions that cause chronic pain. Pagel refused to

     quit smoking long enough to undergo surgery for the bunions.

            Jacquelyn Pagel bore Richard, on April 2, 2010. Richard is a fictitious name and,

     under the initials M.P., is the subject of this appeal. Pagel has not identified Richard's

     father. Based on Pagel'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

     Jacquelyn Pagel 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 Pagel

     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 Jacquelyn Pagel three times per

     month during 2010. Paullin is a licensed mental health and chemical dependency

     counselor. During the period that Paullin assisted Pagel, Pagel- engaged in the Family of

     Faith recovery program, which Paullin concluded temporarily changed and improved
If
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No. 32715-9-III
In re the Welfare ofMP.


Pagel'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 February 2012.

       In late 2012, Jacquelyn Pagel commenced periodically deserting Richard with

relatives because of her chronic pain. The Department of Social and Health Services

(DSHS) received reports that Pagel deposited Richard with inappropriate caregivers and

Pagel might be utilizing unlawful drugs again. Child Protective Services (CPS)

employee Leah Furlong-Nicks investigated. In response, Pagel complained that her

brother and sister wanted to kidnap Richard. She protested harassment by CPS and foster

parents. Pagel agreed to provide a urine sample, but then failed to show to supply the

sample. Furlong-Nicks lost contact with Pagel.

       On January 16, 20l3, 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 9/2/12,
       [Jacquelyn Pagel] was arrested for shoplifting.

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

mental health illness, and chronic pain.

       On January 18, 2013, Jacquelyn Pagel agreed to a shelter care order by which she

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


relinquished care and custody of Richard to DSHS. The order provided for her son's

return to Pagel in one month if she completed a chemical dependency evaluation,

provided four clean urine samples, and initiated mental health treatment with Carla

Paullin.

       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, Jacquelyn Pagel reinitiated mental health counseling with Carla

Paullin. Paullin then suspected Pagel of using illegal drugs because Pagel 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 Pagel. Paullin sought to help Pagel regulate her emotions.

       Jacquelyn Pagel tested clean from any unlawful drug use on January 22 and 25,

2013. On February 12,2013, John Dickey at New Horizons evaluated Pagel for chemical

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

lifetime of use, Dickey found Pagel chemically dependent on alcohol, cocaine, and

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

dependency treatment with New Horizons. Dickey recommended continued therapy with

Carla Paullin.

       Jacquelyn Pagel tested clean from any drug use on February 13 and 14,2013.

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


Nevertheless, Richard did not return to his mother's care within the anticipated month of

shelter care. DSHS allowed Pagel to visit Richard in her home.

       On April 2, 2013, Jacquelyn Pagel visited Richard, to celebrate his birthday, at

Empowering, Inc., a family preservation services provider. Pagel brought Richard heaps

of candy and multiple cakes. Pagel acted manic and under the influence of drugs. When

Richard showed more interest in the candy than his birthday party, Pagel grew upset and

agitated. Empowering, Inc. ended the visit early.

       During spring 2013, CASA John Bain observed five of Jacquelyn Pagel and

Richard's visits, some at Pagel's home and some at Empowering, Inc. During trial, Bain

described the visits as chaotic. Pagel arrived late to every visit at Empowering. Once at

Pagel's home, Pagel presented Richard a bike, but inexplicably quickly altered moods

and directed Richard to brush his teeth. At trial, Bain testified:

               [W]hen 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.


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


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

State. The trial court identified Jacquelyn Pagel's primary parental deficiency to be her

mental health. The court found that Pagel lacked insight into her interactions with others

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

The dependency order required Pagel 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. Pagel tested clean from any drug use on April 23

and May 3, 2013.

       On May 6, 2013, Dr. Walter Mabee reevaluated Jacquelyn Pagel. Pagel showed

the psychologist the bunions on her feet and left the evaluation early to retrieve

medication. Pagel returned the next day, at which time Mabee completed the

psychological evaluation. Dr. Mabee believed Pagel to exaggerate her complaints of

physical pain. Mabee opined that Pagel focused on her physical pain to the extent that

the focus interfered in her parenting.

       Dr. Walter Mabee opined that Jacquelyn Pagel used avoidance to cope with stress.

Pagel refused to answer Mabee's questions about handling stressful situations with

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


Richard. Pagel 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.

       Dr. Walter Mabee diagnosed Jacquelyn Pagel 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 Jacquelyn Pagel 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.

       Jacquelyn Pagel's urinalysis was negative on May 7, 2013.

       On May 10, 2013, Jacquelyn Pagel took Richard to a physician because Richard

purportedly complained about a painful penis. Pagel asked the physician to circumcise

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


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.

       Jacquelyn Pagel tested clean from drug use on May 13,2013.

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

not go well. Jacquelyn Pagel did not focus on Richard's needs. At one session, Pagel fell

asleep while encouraging Richard to nap with her. Richard routinely returned to his

foster home hungry. Pagel'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 Pagel

appeared for a visit.

       Jacquelyn Pagel missed some family therapy sessions. When a counselor

addressed Pagel's parenting of Richard, Pagel 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 Jacquelyn Pagel had participated in some, but not all,

court ordered services. Pagel failed to provide urine samples on April 2, 8, and 10. Pagel

failed to progress in family preservation services, such that the service provider

discontinued services. The court also found that Pagel had not consistently attended

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


therapy with Carla Paullin. Pagel 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 2013, Jacquelyn Pagel saw Carla Paullin for the last time. In late July

2013, Pagel visited Richard at Empowering and took Richard to a nearby restaurant.

During the walk to the restaurant, Richard ran into traffic without intervention from

Pagel. In the restaurant's lobby, Richard sat in a chair while Pagel bent over and scolded

him for unsuccessful visits. An Empowering employee intervened, separated Richard

from Pagel, and demanded Pagel leave.

       In September 2013, Jacquelyn Pagel became homeless. Ostensibly, Pagel's

landlord evicted her, although Pagel denied any eviction. DSHS could only sporadically

contact Pagel thereafter.

                                      PROCEDURE

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

terminate the parent-child relationship between Jacquelyn Pagel and Richard.

       On October 1,2013, the trial court reduced Jacquelyn Pagel'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 Jacquelyn Pagel visited Richard only

sporadically. Pagel excused her missing visits on illness and the lack of a telephone. In

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


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,

Pagel 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. Jacquelyn Pagel then resided in jail. After Pagel left jail, Piper arranged

for Pagel to visit Richard at a new location, Fulcrum. At Fulcrum, Pagel 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, Jacquelyn Pagel submitted to no drug testing. The court found

Pagel 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 20 14, Jacquelyn Pagel phoned therapist Carla Paullin. Paullin

attempted to return Pagel's call, but Pagel's phone was disconnected. In April 2014, at

Jacquelyn Pagel'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. Pagel repeatedly

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


missed visits, so Piper repeatedly issued new referrals to additional visitation centers.

       At the start of May 2014, Jaqueline Pagel lost her social security income because

of her recent jailing. Pagel remained homeless.

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

beginning of trial, Jaqueline Pagel's counsel moved to continue trial to a later date,

because Pagel was missing. The trial court phoned Pagel, who expressed a desire to enter

treatment. The trial court gave Pagel until 10:00 a.m. that morning to come to the

courthouse. Pagel refused defense counsel's offer to arrange transportation. Trial started

without her.

       During trial, Carla Paullin testified that Jacquelyn Pagel's mental health illness

prevented her from prioritizing a child's needs. Paullin testified that medication might

permit Pagel to attend to a child's needs, but Pagel refused medication. Paullin believed

that Pagel suffered physical pain, but thought Pagel exaggerated the pain. According to

Paullin, Pagel failed to participate in mental health therapy during the second

dependency.

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

even if Pagel fully engaged in mental health treatment, she would not improve

significantly within the first three to six months of treatment. According to Dr. Mabee,

Pagel needed nine to twelve months at least, and more likely two to four years, to

improve her mental health.

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


        DSHS social worker Wendy Seignemartin testified. Seignemartin was the first

caseworker assigned to Richard's case. Seignemartin identified Jacquelyn Pagel's

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

of these deficiencies, Pagel 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 Pagel 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.

        Wendy Seignemartin testified at trial that someone referred Jaqueline Pagel to

Alcohol Anonymous and Narcotics Anonymous, and Carla Paullin referred Pagel to New

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

she know where to go?" 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 Pagel needed to access such a program "through her

medical." RP at 136. One might deduce from this comment that DSHS expected Pagel

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

declared that Pagel reported attending a relapse prevention program named Celebrate

Recovery.

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


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

Richard's best interests. Bain maintained that Jacquelyn Pagel garnered a weak

relationship with Richard and Pagel 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 Jaqueline Pagel

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

observation of Pagel'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 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 Jaqueline Pagel's parental rights to

Richard. On July 25, 2014, the trial court entered findings of facts, conclusions oflaw,

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.


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


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

               [Pagel] is currently unfit to parent [Richard]. [Pagel'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 of 20 13.

               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 of a child. Jacquelyn Pagel contends insufficient evidence

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

elements. Pagel 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. Pagel 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 ofC.B., 134

Wn. App. 942, 952, 143 P.3d 846 (2006). First, the State must show that six statutory

requirements under RCW 13.34.180(1) are established by clear, cogent, and convincing


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


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.l90(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 P.3d 510 (2008).

       Jacquelyn Pagel 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 .34.180(1), 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. In re Dependency ofC.B., 61 Wn. App. 280, 286, 810 P .2d 518 (1991).

Likewise, the trial court's factual findings under the second step, RCW 13 .34.190(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

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


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

provided services to Jacqueline Pagel 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:


               (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

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No. 32715-9-111
In re the Welfare   0/ MP.

parent. In re Dependency o/D.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 0/ D.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 o/SJ., 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 o/SJ., 162 Wn. App. at 881.

       Jacquelyn Pagel contends insufficient evidence supports the trial court's findings

that the State supplied all necessary and reasonably available services. Pagel 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 Pagel received one service elsewhere, the State could

not provide some of the services because of Pagel's failure to cooperate, and the services

would not have remedied PageFs parental deficiencies.

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

prevention program to Jacquelyn Pagel. DSHS caseworker Wendy Seignemartin testified

she did not refer Pagel to a relapse prevention program because of the absence of a

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


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 Pagel needed to access such a program "through her medical." RP at 136.

Seignemartin delivered no testimony that she informed Pagel that Pagel needed to

arrange this service for herself. Nevertheless, despite DSHS' failure to offer the program,

Jacquelyn Pagel 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 Pagel received needed services.

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

but the State failed to offer Jacqueline Pagel such an evaluation. The State argues that

the court's 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 Pagel 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 Pagel refused

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

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

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

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


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

      The trial court never ordered housing assistance. Nevertheless, Pagel

halfheartedly and inconsistently participated in services when she had adequate housing.

By the time Pagel needed housing assistance in September 2013, Pagel had stopped

attending mental health therapy.

                        Timely Remedy of Parental Deficiencies

      Jacquelyn Pagel next contends insufficient evidence supports the trial court's

findings that Pagel's parental deficiencies were unlikely to be remedied in Richard's near

future. Under RCW 13.34.l80(l)(e), DSHS must show:

              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

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


       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

"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 ofT.L.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

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


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

P.2d 159 (1990).

       The focus ofRCW 13.34.180(1 )(e) is "whetherthe 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 ofT.R., 108 Wn. App. at 167 (2001).

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

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

termination. T.R., 108 Wn. App. at 166.

       The State argues that the one year rebuttable presumption in RCW 13.34.l80(1)(e)

applies to Jacqueline Pagel's proceedings. The presumption only arises if the State

showed it offered all necessary services reasonably capable of correcting Jacquelyn

Pagel'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 13.34.180(1)(e) to affirm the trial

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

Jacqueline Pagel would not cure her parental deficiencies in Richard's near future. Pagel

challenges the trial court's finding by highlighting contradictory evidence, not undisputed

                                            21 

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


evidence. Pagel underscores that Wendy Seignemartin estimated Richard's near future at

six to twelve months, while Dr. Walter Mabee testified that Pagel's mental health could

improve within nine months, if Pagel complied with necessary services. Nevertheless,

Dr. Mabee also testified that Pagel 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 Pagel to cure her deficiencies.

       Jacqueline Pagel'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 Pagel would not cooperate with service providers and suffer needed

services for the ensuing nine to twelve months. By the date of trial, Pagel had refused to

visit Carla Paullin, her mental health therapist, for one year. Unlike the first dependency,

Pagel failed to consistently participate in mental health therapy. Pagel repeatedly failed

to show for visits with Richard. DSHS caseworkers encountered increasing difficulty in

contacting Pagel.

       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 13.34.lS0(l)(e). In re Welfare ofT.B., ISO Wn. App. 599, 60S, 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

                                             22 

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


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

RCW 13.34. 190(1)(b). As noted in In re Welfare ofA.B.:

                By virtue ofRCW 13.34.180(1) and RCW 13.34.190, 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

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 ofT.R., 108 Wn. App. at 167 (2001).

       Jacquelyn Pagel 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 Pagel 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 Pagel with serious, significant mental health

impediments that interfere with social and occupational functioning. Pagel presented as

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

                                              23 

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


circumcision. Carla Paullin testified that Pagel'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

       Jacquelyn Pagel 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.

      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 ofMy ricks , 85 Wn.2d 252, 254, 533 P.2d 841 (1975). More

                                            24 

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


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.

       Under RCW 13.34.100(1): "The court shall appoint a guardian ad litem for a child

who is the subject of an action under this chapter, unles's 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). Jacqueline Pagel 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 reDependency ofMS.R., 174 Wn.2d 1,20-21,271 P.3d234 (2012). Unless a court

directs otherwise, a CASA holds the duties:

                                              25
No. 32715-9-III
In re the Welfare ofMP.


               (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;
               (f) 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).

       Jacquelyn Pagel 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




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


process. Lassiter v. Dep'tofSoc. Servs., 452 U.S. 18,27,101 S. Ct. 2153,68 L. Ed. 2d

640 (1981).

       Pagel does not contend that RCW 13.34.100 and .105 are constitutionally

deficient. Rather, Pagel contends that John Bain denied Richard and her the process that

chapter 13.34 RCW affords. More specifically, Pagel argues that Bain failed in his

statutory duties by focusing on Richard's relationship with his foster family. Bain had

not seen Richard with Pagel for one year when he testified at trial. Thus, Pagel maintains

Bain could not gauge Richard's best interests. Pagel asks this court to apply the Mathews

factors and hold that the procedure Richard and she received did not pass constitutional

muster.

       The State observes that Jacqueline Pagel did not complain about John Bain's

performance at the trial court level. The State argues that Jacquelyn Pagel 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

                                             27 

No. 327 15-9-III
In re the Welfare oIMP.


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 Jacqueline Pagel's assignment of error of a neglectful

investigation by the CASA. Pagel did not object to John Bain's initial appointment under

RCW 13.34.102(2)(c). Pagel did challenge the foundation ofBain's testimony or his

conclusions. Pagel 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 Bain's testimony, substantial evidence supports the trial court's finding

that termination was in Richard's best interests. Pagel does not enlighten the court as to

what helpful information the CASA may have unearthed if he engaged in a thorougher

investigation. Pagel 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 oITB., 150 Wn. App. 599,209 P.3d

497 (2009). In T.B., 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. T.B.,

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

                                            28 

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


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 13.34.10S, 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
      investigation under the version of former RCW 13.34.10S 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. ofResp'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.

TB., ISO Wn. App. at 61S-16.

                                      CONCLUSION

       We affirm the trial court's termination of Jacqueline Pagel's parental rights to

Richard.

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




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




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

2.06.040.




WE CONCUR: 





      Lawrence-Berrey, J.




                                          30 

