      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


In the Matter of the Dependency of                No. 77281-3-I/Consolidated w/
                                                  No. 77282-1-1
X.C.S.-H., DOB: 04/20/2012,

L.J.S., DOB: 09/04/2008,                          DIVISION ONE

                              Minors,

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
                                                  UNPUBLISHED OPINION
                     Respondent,

                     V.

AMY SWEET,

                     Appellant.                   FILED: April 30, 2018

       SPEARMAN, J. — Amy Sweet appeals from the order terminating her

parental rights to her two sons, X.C.S.-H. and L.J.S. She contends that the court

failed to prove that there was little likelihood that parental deficiencies would be

remedied in the near future, that continuation of the parent-child relationship

diminished the boys' prospects for integration into a stable and permanent home,

and that termination was in the best interests of the children. Substantial

evidence supports these findings. We affirm.
No. 77281-3-I/Consolidated w/No. 77282-1-1/2

                                            FACTS

       Amy Sweet is the biological mother of two boys.' L.J.S was born on

September 4, 2008, and X.C.S.-H. was born on April 20, 2012. On February 2.

2015, after Sweet's arrest on a third degree assault charge, the children were

placed in protective custody. Soon thereafter, on February 4, the Department of

Social & Health Services (Department)filed a dependency petition and placed

the boys in foster care with family friends. At the time, the boys were two and a

half and six and a half years old. In March 2015, Sweet entered into an agreed

order of dependency. As part of the acknowledged issues related to alcohol and

to her mental health, she agreed that the services ordered to address the issues

were ri,ece5sary and appropriate. In the disposition order, Sweet agreed to

participate in a substance abuse evaluation, to follow any resulting

recommendations, submit to random urinalysis, to participate in a mental health

assessment, to follow any resulting recommendations and to participate in

counseling.

        Throughout the dependency, the Department offered and provided the

mother with appropriate services, including substance abuse evaluation and

treatment,2 random urinalysis tests, mental health assessment and counseling,

parenting instruction, Family Drug Treatment Court, Moral Reconation Therapy,

Therapeutic Alternatives Program, a domestic violence assessment and


        1 Sweet also has a daughter, Leigha, who was 18 years old at the time of trial and not
subject to the proceeding.
       2 Sweet attempted drug and alcohol treatment prior to this dependency in 2009 or 2010,
and again in 2013. She did not stop using drugs or alcohol after these treatment attempts.


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No. 77281-3-I/Consolidated w/No. 77282-1-1/3

treatment, medication management, a psychological evaluation with a parenting

component, and a Foster Care Assessment Program assessment.

      Sweet entered into and completed inpatient drug and alcohol treatment in

May 2015. At the time she began the program, she was using alcohol, cocaine,

and marijuana. After completing the program, she relapsed throughout the

summer. But Sweet continued with intensive outpatient treatment and graduated

from Family Drug Treatment Court in June 2016. The Department stopped

asking Sweet for urinalysis testing in December 2016.

      Also in December 2016, the Department filed termination petitions for both

X.C.S.-H. and L.J.S. In April 2017, Sweet requested that the court return the

boys to her or grant unsupervised visits, declaring that she had been clean and

sober for 618 days. But the Department received a report that Sweet was using

and referred for urinalysis testing. Sweet admitted that she had been using

marijuana since February 2017. She tested positive for marijuana and cocaine.

Her motion for a return home or unsupervised visits was denied, and the

Department referred her for additional evaluation and treatment.

      Sweet's sons were eight and a half and five years old, respectively, at the

time of Sweet's termination hearing in June 2017. They had been out of the

home for 29 months. At trial, Sweet's various social workers, case managers,

and the guardian ad litem testified about her strengths and deficits as a parent,

which included her mental health, parenting skills, substance abuse, and choice

of romantic partner.




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       Sweet reported having anxiety and depression. Sweet's depression raised

concerns about her parenting. After evaluating her, forensic psychologist, Dr.

Evan Freedman testified that

       some of the withdrawal and lack of engagement that I observed in
       the parent-child visit would relate to either depression or a sense of
       hopelessness, a lack of confidence, and so that — there's a
       connection there between the information on the [Minnesota
       Multiphasic Personality Inventory] and the actual behavior that we
       observe when she's parenting. . . . depression can have a negative
       impact on parenting.

Verbatim Report of Proceedings(VRP)at 227-28. Sweet's court-appointed

diversion case manager, Christine Lee, recommended that she see a therapist

once a week. But Sweet attended therapy appointments far less frequently. In

the four months leading up to trial, Sweet attended therapy between three and

six times. At another point in the dependency, Sweet went two or three months

without attending therapy. These periods of inconsistent attendance were usually

due to a change in mental health provider. A psychiatrist recommended that

Sweet take medication for her mental health condition, but Sweet discontinued

use after trying it.

       Witnesses also testified that Sweet had been unable to make progress

expanding her visits with the boys. Throughout the dependency, Sweet had

regular, monitored visits with them. At the time of trial, Sweet had a two hour visit

with X.C.S.-H. on Tuesday, a two hour visit with L.J.S. on Thursday, and a two

hour visit with both boys on Friday. At one point, the Department attempted to

expand Sweet's visits. But Sweet missed these visits, so the monitored visit

contract was cancelled. While Sweet did graduate from supervised visits to


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No. 77281-3-I/Consolidated W/No. 77282-1-1/5

monitored visits, she never successfully moved to unsupervised visits, or to

expanding times for monitored visits.

       Those who observed Sweet with her boys testified that she loved her

children and was bonded to them, and likewise her boys loved and were

attached to her. But they also noted concerns about Sweet's parenting skills.

Social worker Denise Hollenbeck testified that she observed X.C.S.-H. nearly put

a marble up his nostril during a visit with Sweet. When Hollenbeck took the

marble from the child and gave it to Sweet, she did not place the marbles out of

reach. In addition, Sweet was told about concerns that a bookshelf on top of a

desk was a tipping hazard. But Sweet did not promptly move the bookshelf or

secure it to the wall. Hollenbeck also criticized Sweet for feeding her children and

watching shows or movies with them when she should have been helping with

homework or more actively engaged with them. Hollenbeck criticized Sweet for

not insisting that her boys stay in timeout, and being inconsistent with them. She

testified about another incident in which Sweet took her boys to do laundry in

another building. When returning to the apartment, X.C.S.-H. did not follow

Sweet inside, and was left outside the apartment with Hollenbeck for a few

minutes.

       These observations of Sweet's parenting skills were of particular concern

because X.C.S.-H. has special needs arising from his global developmental

delays and low cognitive functioning. Dr. Freedman testified that "the task of

parenting these children is going to be very difficult. So there's a mismatch there

between the level of difficulty the children present and the level of skill and


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capacity that Ms. Sweet has." VRP at 224. And in spite of invitations to medical

and school appointments, Sweet had attended only one medical and one school

appointment.

       Sweet's living situation was also a concern. She continued to live with her

fiancé even though the Department advised her that it could not approve the

children living with him due to his recent domestic violence criminal history. In

spite of the Department's warnings, Sweet did not take action to move her fiancé

out of her home. In addition, Sweet's daughter lived in her home, which

concerned witnesses. The two had a volatile relationship and the daughter used

drugs in the home.

       The Department's witnesses testified that, while continued contact with

Sweet would be ideal, termination of her parental rights was in the boys' best

interests. Hollenbeck testified that she saw a lot of progress with the boys after

they were placed in foster care:

       When I first met [X.C.S.-1-11, the caregivers told me that he had —
       came to them with about 15 words. And at that point, he acted out
       angrily or he acted out a lot because he...seemed unable to use
       words....
              Over the course of[the] next year and a half, he became
       much more verbal. . . .
              He learned to not fight so much with his brother and sister
       and not grab toys, and, you know,just do a variety of things that he
       seemed not to be able to do when he arrived at the home.

VPR at 112. With respect to the older brother,[L.J.S.], "he seemed to be able to

kind of come out of [his] shell." VRP at 113.

       Evaluator Beverley Pearl also recommended termination, testifying that in

foster care the boys
    No. 77281-3-I/Consolidated w/No. 77282-1-1/7

           were both progressing in school, they were doing better
           behaviorally and emotionally. I think that there had been quite a
                                                                                 I
           turnaround in behaviors...[W]hen [X.C.S.-H.] was placed at 34
           months, he wasn't walking, and he wasn't really talking, and he
           wasn't potty trained. He was just under three years old. And he
           immediately started making really significant progress in all of those
           areas.

    VRP at 312-13. She also recommended termination.

           The trial court entered findings and an order terminating Sweet's parental

    rights to the children. Sweet appeals.

                                       DISCUSSION

           Parental rights are a fundamental liberty interest protected by the United

    States Constitution. Santosky v. Kramer,455 U.S. 745, 753, 102 S. Ct. 1388, 71

    L. Ed. 2d 599 (1982). To terminate parental rights, the State must satisfy a two-

    step test. First, it must prove the following statutory elements by clear, cogent,

    and convincing evidence:

                  (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;
                  (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;
                  (d) 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;
                  (e) That there is little likelihood that conditions will be
           remedied so that the child can be returned to the parent in the near
           future. . ..
                  (f) That continuation of the parent and child relationship
           clearly diminishes the child's prospects for early integration into a
           stable and permanent home.

;
No. 77281-3-I/Consolidated w/No. 77282-1-1/8

RCW 13.34.180(1)(a-f). If the State satisfies these criteria, the court may

terminate parental rights if it finds by a preponderance of the evidence that

termination is in the "best interests" of the child. RCW 13.34.190(b).

       On review, unchallenged findings of fact are considered verities. In re

Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001). Challenged

findings will be upheld "[i]f there is substantial evidence which the lower court

could reasonably have found to be clear, cogent and convincing ..." In re Welfare

of Aschauer, 93 Wn.2d 689, 695,611 P.2d 1245 (1980). Because the trial court

hears the testimony and observes the witnesses, its decision is entitled to

deference. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277

(1991). Consequently, we defer to the trier of fact on issues of conflicting

testimony, credibility of the witnesses, and the weight or persuasiveness of the

evidence. Id.

Likelihood That Conditions Will Be Remedied in the Near Future

       Sweet argues that the Department failed to prove that her children could

not be returned to her in the near future as required by RCW 13.34.180(1)(e).

She contends that she was actively engaged in services at the time of trial, and

required merely eight weeks to complete relapse prevention, remove her fiancé

from her home, and complete her parenting classes.

       The State points out that the mother failed to assign error to the finding

that "[t]here is little likelihood that conditions will be remedied so that the children

can be returned to the mother in the near future." Findings of Fact(FF) 2.30; CP

at 12. Unchallenged findings of fact are verities on appeal, and this finding


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No. 77281-3-I/Consolidated w/No. 77282-1-1/9

supports that the boys could not be returned to Sweet in the near future. But

even if Sweet had challenged this finding, substantial evidence supports that the

Department met its burden to prove that there is little likelihood that conditions

will be remedied so that the children can be returned to the parent in the near

future.

          Sweet continued to have significant parental deficiencies in spite of the

many services that she participated in, making her unable to successfully expand

visits with her children. She also continued to struggle with substance abuse,

which diminished her ability to parent effectively. After relapsing in February

2017, urinalysis testing demonstrated that her marijuana levels were not

decreasing. While Sweet acknowledged that she "shouldn't be using any kind of

drugs or alcohol ... [b]ecause I make bad decisions," she also minimized her use

of marijuana due to it being a legal substance, and testified that she believed her

boys should live with her even if she used marijuana. VRP at 67-68.

          Sweet's living situation is additional evidence that conditions would not be

remedied in the near future to enable the boys to return home. The Department

repeatedly warned the mother that it could not approve of reunification if the

mother's fiancé was living with her due to his history as a domestic violence

perpetrator. At trial, Sweet first denied that she remembered such a warning.

Later, she acknowledged that she knew that her continued cohabitation was a

barrier to reunification with her kids. There is no evidence in the record that

Sweet was willing to remove her fiancé from her home in response to these

concerns. While Sweet argues that her fiancé offered to move out of the home,


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No. 77281-3-I/Consolidated w/No. 77282-1-1/10

Hollenbeck testified that it was not a "real genuine offer to move out" because he

was "sort of having a tantrum" at the time. VRP at 163.

       Sweet argues that her enrollment in a relapse awareness program

demonstrates her ability to correct her substance abuse problems in the near

future. But as the trial court found, Sweet had already experienced extensive

treatment for substance abuse, which included relapse awareness. Substantial

evidence supports the trial court's findings that additional relapse awareness

training would not correct her substance abuse. Sweet's relapse and

minimization of her use of marijuana is substantial evidence supporting the trial

court's finding that there was little likelihood that conditions will be remedied so

that the boys' can return to their mother in the near future.

       Sweet contends that the trial court relied on extrinsic evidence to support

its findings of fact that she would not benefit from a relapse awareness program

and suffered from "major depressive disorder."3 She argues that the trial court

erred by relying on its "common experience" to reach its finding on relapse

awareness, and that the record did not support that Sweet had major depressive




        3 "The mother claims she would be ready to parent after she completes the eight-week
relapse awareness program. It is clear to this Court from both this Court's common experience
with drug use and from the mother's history that relapse awareness is not going to cure the
mother's severe, very long-term substance abuse problem." FF 2.68
       "The mother has been diagnosed with major depressive disorder." FF 2.74.
       "The mother has chosen not to take medication to treat her depression even though it
was recommended." FF 2.85
CP at 15.


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No. 77281-3-I/Consolidated w/No. 77282-1-1/11

disorder. The Department argues that substantial evidence in the record supports

these findings.4

        With respect to the relapse awareness program, we agree with the

Department. As discussed above, there is substantial evidence that, due to the

mother's substance abuse history, an additional eight-week relapse awareness

program would not remedy conditions such that the children could return home.

This is substantial evidence supporting the trial court's finding, independent of

any "common experience" of the court.

        But we agree with Sweet with respect to finding of fact 2.74 related to

major depressive disorder. Substantial evidence does not support that Sweet

was diagnosed with major depressive disorder. Rather, the record supports that

Sweet felt depressed or had situational symptoms of depression with which she

struggled. Sweet argues further that this erroneous finding is the basis for

additional findings related to her mental health and thus requires reversal. We

disagree. Regardless of its characterization, substantial evidence supports the

challenged findings that Sweet was depressed, that she was not actively

engaged in treatment of her depression, and that the depression impacted her




        4 The Department initially argues that Sweet raises this issue for the first time on appeal.
But the Department does not cite authority for its proposition that a parent can waive an argument
on insufficiency of the evidence due to a failure to object at trial.



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No. 77281-3-I/Consolidated w/No. 77282-1-1/12

parenting.5

Diminishing Prospects for Early Integration Into a Permanent Home

        Sweet next argues that the Department did not prove that continuation of

the parent-child relationship diminished the boys' prospect for early integration

into a stable and permanent home as required by RCW 13.34.180(1)(f). She

contends that the Department failed to meet its burden with respect to this

element because it did not prove that a less restrictive alternative to termination,

such as dependency guardianship or open adoption, was unavailable.

        Contrary to Sweet's argument, this statutory element does not require that

the Department prove there is no less restrictive alternative to termination. The

court is under no obligation to consider a dependency guardianship as an

alternative to termination where such an option was not being considered by the

Department. In re Dependency of K.S.C., 137 Wn.2d 918, 930, 976 P.2d 113

(1999). Sweet cites In re Welfare of S.V.B., 75 Wn. App. 762, 880 P.2d 80(1994)

for her contention that the trial court must consider a guardianship as a less



          5 "The mother has chosen not to take medication to treat her depression even though it
was recommended." FF 2.85;"The mother's testimony and demeanor in court have convinced
the court that it would be beneficial not just for the mother's own wellbeing but also for her
interactions with her children to follow through more with her mental health treatment and
medication recommendations." FF 2.86; "The mother's depression feeds into both her chemical
dependency and her inability to actively parent." FF 2.87; The mother's depression plays a role
in the fact that when the Department added another weekly visit in summer 2016 she missed
three visits because the visits were in the morning and she could not wake up in time, which
resulted in a termination of those visits." FF 2.88;"The mother's tendency to watch videos during
brief visits indicates an inability to actively parent or actively participate with her children. This is
likely a result of the mother's depression and a lack of self-esteem." FF 2.90;"The mother's
unwillingness to do anything about the safety concern raised in Spring 2016 regarding a
bookshelf that[X.C.S.-H.] was climbing on until her home was remodeled (which didn't occur until
March 2017) is another sign of a lack of active parenting and actively doing something about a
problem." FF 2.91;"The mother has lingering parental deficiencies. The mother has an ongoing
mental health and substance abuse problem that are not being appropriately addressed." FF 2.96


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No. 77281-3-I/Consolidated w/No. 77282-1-1/13

restrictive alternative prior to terminating parental rights. But S.V.B. held that

where one child was already in a guardianship, rather than foster care,

continuation of the parent-child relationship did not diminish that child's prospect

for integration into a stable and permanent home. Here, there was no

guardianship already in place, so S.V.B. is inapposite.

        Similarly, the court has no obligation to find that open adoption is

unavailable as a less restrictive alternative. Sweet cites In re Welfare of H.Q.,

182 Wn. App. 541, 330 P.3d 195(2014) in support of her argument. But in that

case, the court held that due process requires that voluntary relinquishment,

which would enable open adoption, must be available. Voluntary relinquishment

was available to Sweet, but she did not avail herself of that option.

        The lack of evidence regarding the availability of less restrictive

alternatives did not cause the Department to fail to prove that continuation of the

parent-child relationship diminished the boys' prospect for early integration into a

stable and permanent home.

Best Interests of the Child

        Finally, Sweet argues that the Department failed to prove that termination

of her parental rights was in the children's best interests as required by RCW

13.34.190(1)(b). She contends that testimony supported that the boys would

benefit from having her in their lives.6


        6 Sweet assigns error to findings of fact 2.116 and 2.117. Finding of fact 2.116 states: "It is
in the best interest of[X.C.S.-H.] and [L.J.S,] that all of the parental rights of the mother be
terminated under ROW 13.34.180 and .190." Finding of fact 2.117 states: "While the court
believes that the children would greatly benefit from a relationship with their mother that is not an
issue that the court can control." OP at 17.


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No. 77281-3-I/Consolidated w/No. 77282-1-1/14

      The evidence at trial established that the boys were doing well in their

current placement, were entitled to permanency as soon as possible, and that

delay for Sweet to redress her parental deficiencies would diminish the boys'

prospects for integration into a stable and permanent home. The guardian ad

litem, Department social workers, and Ms. Pearl acknowledged the affection

between Sweet and the boys, and their preference that Sweet maintain some

contact with them. But they nevertheless recommended termination of parental

rights and adoption based on the boys' progress in foster care, their high level of

needs, Sweet's ongoing substance abuse issues, her relationship with a man

with a domestic violence history, and her mental health issues that were not

properly addressed. VRP at 145; 340; 391-92; 437.

       Because substantial evidence supports the trial court's findings, we reject

Sweet's appeal and affirm the termination order.

      Affirmed.




WE CONCUR:




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