       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of        )                                             Cf)       C2.
                                          )        No. 76715-1-1                CO
S.M.M.,                                   )                                                 "cf
DOB: 04/01/2011,                          )        DIVISION ONE                   r--

                                          )                                                       7.-tscri
R.I.A.,                                   )                                                       orrICI
DOB: 03/12/2002,                          )        UNPUBLISHED OPINION
                                          )                                     'It  z
                                                                                 .cJ
                      Minor Children.     )       FILED: July 23, 2018                  S
                                          )
       BECKER, J. —Angela Waldo appeals the trial court's order terminating her

parental rights to her son, S.M.M. Waldo contends the State failed to prove that

all necessary and available services capable of correcting her parental

deficiencies were provided to her. Because substantial evidence supports the

trial court's findings to the contrary, we affirm the termination order.

       Waldo has two children: a daughter, R.I.A., born March 22, 2002, and a

son, S.M.M., born April 1, 2011.1 After a car accident in 2004, Waldo became

addicted to opiate pain medication and benzodiazepines. She was observed on



       1 Waldo's parental rights to R.I.A. were terminated in a separate
proceeding, and R.I.A. is not a subject of this appeal. The parental rights of
S.M.M.'s father were terminated by default on October 12, 2015, and he is not a
party to this action. Clerk's Papers at 191-96.
No. 76715-1-1/2

multiple occasions by school staff, social workers, and family members to be

'"overly sedated' as evidenced by slurring speech and rambling, tangential

conversations." Exhibit 2. Waldo's dental clinic noted that Waldo exhibited

classic "drug-seeking behavior," including not completing dental work but still

requesting painkillers, or becoming belligerent when she believed she was not

given enough painkillers. Clerk's Papers at 121, Report of Proceedings(Nov. 30,

2016) at 247. Waldo also admitted to purchasing drugs from customers when

she was working as a bartender.

       In 2013, the Department of Social and Health Services filed a

dependency petition after Waldo was arrested for driving under the influence with

S.M.M. in the car. Waldo agreed to dependency, and the juvenile court ordered

the following services: a substance abuse evaluation, random urinalysis testing,

mental health counseling, parenting classes, and a psychological evaluation.

Department social worker Michelle Hetzel explained to Waldo how to obtain

these services and provided contact information for eight local inpatient

substance abuse treatment facilities. However, Waldo "vehemently denied

substance abuse issues" to Hetzel. Report of Proceedings (Dec. 6, 2016) at 580.

She insisted that she had merely mixed up her prescription medications or that

her babysitter had drugged her drinks. Nevertheless, Waldo began working with

Community Psychiatric Clinic, an agency that provided Waldo with both

outpatient substance abuse treatment and cognitive behavioral therapy. Waldo

also began taking methadone as part of her substance abuse treatment.



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No. 76715-1-1/3

       In June 2014, Dr. Joanne Solchany conducted a psychological evaluation,

including a parent-child observation. In her report, Dr. Solchany noted that

Waldo seemed "frenetic" with her son, frequently asking him a question and then

immediately asking another without giving him a chance to respond. Report of

Proceedings (Nov. 30, 2016) at 161. Dr. Solchany also described Waldo as

"demanding" and "intrusive." She stated that S.M.M. and R.I.A. seemed

confused as to how to interact with her. Report of Proceedings (Nov. 30, 2016)

at 162-63. Dr. Solchany diagnosed Waldo with generalized anxiety disorder and

a personality disorder with mixed narcissistic, borderline, antisocial, and histrionic

features. Dr. Solchany recommended that Waldo continue participating in

cognitive behavioral therapy, manage her medication use, and engage in parent-

child therapy with S.M.M.

       Waldo argued that the parent-child evaluation went poorly only because

the boy was tired. As a result, Dr. Solchany agreed to conduct a second parent-

child observation in August 2014. However, Waldo exhibited the same behaviors

as in the previous observation and was able to sustain positive interactions for

only a few minutes at a time.

       Dr. Solchany issued an addendum to her report in which she

recommended that, instead of cognitive behavioral therapy, Waldo participate in

a formal dialectical behavioral therapy program. Dr. Solchany explained that

dialectical behavioral therapy is a specific, evidence-based therapy that is

particularly helpful for individuals with personality disorders—particularly



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No. 76715-1-1/4

borderline personality disorder—because it teaches skills such as emotional self-

regulation and distress tolerance. Such a program frequently takes a year or

more to complete.

       Department social worker Tatiana Popov, who herself was trained in

dialectical behavioral therapy, referred Waldo to a program at Harborview Mental

Health. Joanne Marsden, the lead therapist at the Harborview program, testified

that Waldo was not eligible because the Harborview program focused on suicidal

ideation and self-harm behaviors, which were not an issue for Waldo. In

addition, Marsden explained that because success in dialectical behavioral

therapy is so dependent on internal motivation to change, Harborview did not

accept individuals who were court-ordered to participate. Marsden gave Popov a

list of other providers who offered this type of therapy. At the time, none of the

Seattle-area providers accepted Waldo's Medicaid benefits; the nearest program

that did was in Spokane. Waldo continued participating in dialectical behavioral

therapy at Community Psychiatric Clinic.

       In October 2014, S.M.M.'s caregivers asked that he be removed from their

home. Over the department's objection, the juvenile court returned S.M.M. to

Waldo's care, on the condition that Waldo participate in in-home parenting

services and ensure that the boy attend a special education preschool to address

developmental delays.

      The placement was not successful. Waldo refused to participate in in-

home services and struggled to get her son to preschool consistently, despite



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No. 76715-1-1/5

having school bus transportation for him. On April 18, 2015, police responded to

a call that Waldo appeared to be passed out in a parked truck with four-year-old

S.M.M. in the back seat. When police knocked on the window, Waldo was

difficult to rouse, incoherent, and unable to focus. Waldo denied being under the

influence of drugs or alcohol and insisted she was merely tired. Police placed

S.M.M. in protective custody.

       In the weeks following the boy's removal, department social worker

Cecelie Han noted several occasions when Waldo appeared impaired—not

making sense and allowing her voice to trail off—including once while driving.

The child's therapist, Erin Wentz, also described two similar phone calls in which

Waldo appeared intoxicated. The department filed a petition to terminate

Waldo's parental rights as to S.M.M.

       By this time, Waldo had changed her outpatient substance abuse

treatment to Therapeutic Health Services and her mental health services to

Center for Human Services. She continued participating in both, though her

participation was inconsistent. On November 12, 2015, Waldo tested positive for

two nonprescribed benzodiazepines. Peggy Hopkins, Waldo's substance abuse

treatment provider, was extremely concerned that Waldo could overdose from

the combination of methadone and benzodiazepines. Hopkins urged Waldo to

discontinue the methadone program and enter inpatient substance abuse

treatment. Waldo refused.




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No. 76715-1-1/6

       Over the department's objection, the juvenile court placed R.I.A. with

Waldo on March 28, 2016. The juvenile court wrote: "In the court's experience,

repeated failed attempts to return children to their parents invariably cause great

damage to the children. The court noted on the record and in the presence of

the mother that this is the mother's last chance to demonstrate compliance and

progress." Exhibit 20. Within days, Waldo's stepfather reported that Waldo's

speech was slurred and incoherent. Waldo refused to submit a required

urinalysis sample on April 8, 2016, and a sample on April 13, 2016, was positive

for benzodiazepines. Waldo denied taking benzodiazepines and blamed the

positive result on either incompetence at the laboratory or deliberate tampering

by the department.

       Despite this, on June 30, 2016, the juvenile court returned S.M.M. to

Waldo for the second time. Again, however, Waldo was incapable of safely

parenting her son. Diana Sonne, Waldo's family preservation services provider,

observed that Waldo was extremely sleepy and could not respond to questions

or hold an intelligible conversation. R.I.A. witnessed Waldo remove milk from the

refrigerator, pour the milk into a bottle of Windex cleaning solution, and return the

mixture to the refrigerator. Waldo denied that her erratic behavior was the result

of drug use. She claimed she had suffered a head injury, but medical providers

found no evidence of head trauma.

       On September 2, 2016, police responded to a call and found Waldo

slumped over in the driver's seat of her truck with the engine running. Waldo's



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No. 76715-1-1/7

speech was heavily slurred, and her responses to police were nonsensical. She

performed very poorly on field sobriety tests. Waldo admitted that she was on

her way to pick up S.M.M. from camp. A blood test was positive for

benzodiazepines, which Waldo was not prescribed. Waldo gave inconsistent

explanations for the positive result. Her son was again placed in protective

custody.

       Waldo's substance abuse treatment provider again recommended that

Waldo enter an inpatient substance abuse treatment program. Waldo replied that

she did not "currently have a problem with the use of alcohol or drugs." Report of

Proceedings(Dec. 1,2016) at 286. However, Waldo acknowledged that "she

would like to try something that could . . . benefit her more." Report of

Proceedings (Dec. 2, 2016) at 293. On September 20, 2016, Waldo entered a six-

month "dual diagnosis" inpatient program at Evergreen Recovery Center offering

both substance abuse treatment and dialectical behavioral therapy. Though a

dialectical behavioral therapy program typically takes a year or more to complete,

Evergreen compressed the program into six months by doubling the number of

treatment sessions per week.

       On November 15, 2016, while at Evergreen, Waldo tested positive for

benzodiazepines, which she was not prescribed.

      Trial on the termination petition began on November 29, 2016. Due to the

holidays and witness scheduling issues, the trial lasted more than two months.

The following occurred while the termination trial was proceeding.



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No. 76715-1-1/8

       On December 15, 2016, Waldo was discharged from Evergreen. Julia

Lugo, Waldo's chemical dependency counselor at Evergreen, testified that Waldo

made an excessive number of doctor's appointments that interfered with her

treatment requirements. Lugo attempted to work with Waldo so she could

remain at Evergreen but told Waldo she would need to streamline her doctor's

appointment. Waldo said, "That's not going to happen.... I at least need to go

to the doctor once a week." Report of Proceedings(Dec. 19, 2016) at 1186-87.

Following her discharge from inpatient substance abuse treatment, Waldo

entered a "dual diagnosis" program at Valley Cities offering both outpatient

substance abuse treatment and dialectical behavioral therapy.

       On January 21, 2017, Waldo attended a visit with S.M.M. in which she

appeared under the influence. Waldo stumbled, was unable to read a book to

the child, made nonsensical comments and continually fell asleep. Waldo also

fed the boy so much food that he threw up. Denise Huynh, the department social

worker, asked Waldo to submit to a urinalysis test, but Waldo refused. Waldo's

explanations of what happened were inconsistent and contradicted by the record.

For example, Waldo claimed that she was still sleepy from a dental procedure

that occurred on January 20. However, Waldo's primary care physician testified

that Waldo would not have still been experiencing effects from the medication or

procedure by January 21. Waldo then claimed that she was sleepy from having

been assaulted by an acquaintance on January 20. However, medical providers

who examined Waldo found no evidence of concussion or anything else that



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No. 76715-1-1/9

could account for Waldo's behavior. Waldo testified that she would have

canceled the visit but was unable to because her phone was broken. However,

Huynh called and talked to Waldo the morning of January 21 to confirm the visit.

The trial court specifically found Waldo's explanations not credible.

       S.M.M.'s foster parent testified that S.M.M. said, "I'm calm here" and "Mt

was crazy ... at my mom's house, I always felt crazy." Report of Proceedings

(Nov. 29, 2016) at 40-41. The boy disclosed that Waldo was frequently "drowsy"

and that made him "nervous and scared." Report of Proceedings(Nov. 29, 2016)

at 53. S.M.M. told his foster parent that one time he had to throw water on

Waldo's face to wake her up and he was afraid she was dead.

       After hearing testimony from 36 witnesses and reviewing 63 exhibits, the

trial court entered findings of fact and conclusions of law and an order

terminating Waldo's parental rights. Waldo appeals.

       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 the parent-child relationship, the department

must prove each of the following six 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;




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No. 76715-1-1/10

              (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. . .[;and]
              ..
              (f) That 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(1). If all of these elements are proven, the trial court must also

find by a preponderance of the evidence that termination is in the "best interests"

of the child. RCW 13.34.190(1)(b).

       We treat unchallenged findings of fact as verities. In re Interest of J.F.,

109 Wn. App. 718, 722, 37 P.3d 1227(2001). Challenged findings will be upheld

"if 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). "Clear, cogent and convincing evidence exists

when the ultimate fact in issue is shown to be 'highly probable." In re

Dependency of T.L.G., 126 Wn. App. 181, 197, 108 P.3d 156 (2005), quoting In

re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082

(1998). We defer to the trier of fact on issues of conflicting testimony, credibility

of the witnesses, and the weight or persuasiveness of the evidence. In re

Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).




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No. 76715-1-1/11

       Waldo contends that the department did not satisfy its burden of providing

all necessary services under RCW 13.34.180(1). Specifically, she argues that

the department failed to provide her with dialectical behavioral therapy until

approximately two years after Dr. Solchany recommended it.

       The department has a statutory obligation to provide all the services

ordered by the permanency plan, as well as "all necessary services, reasonably

available, capable of correcting the parental deficiencies within the foreseeable

future." In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75

(2016), quoting ROW 13.34.180(1)(d). "Necessary services" are those services

"needed to address a condition that precludes reunification of the parent and

child." In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500

(2014).

       Here, substantial evidence in the record supports the trial court's finding

that dialectical behavioral therapy was offered or provided to Waldo. In 2014,

Popov referred Waldo to Harborview, which determined she was not eligible for

their program. At the time, no other Seattle-area dialectical behavioral therapy

programs accepted Medicaid. However, in 2015, two did: Sound Mental Health

and Valley Cities. Catie Wilkins, Waldo's mental health therapist at Center for

Human Services between August 2015 and August 2016, testified that she

explained how Waldo could transfer to one of these programs, but Waldo

declined to do so. Waldo testified that she believed she would lose the




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No. 76715-1-1/12

opportunity to participate in parent-child therapy with her son if she changed her

mental health provider. Several witnesses testified that this was not the case.

       Waldo contends that reversal is required because the department

inexcusably failed to procure funding to pay for a dialectical behavioral therapy

program. Had it done so, she argues, she could have entered the program

earlier and demonstrated progress by the time of the termination trial. But

Waldo's claim is belied by the undisputed fact that when a program became

available to her in 2015, she chose not to participate. Waldo also argues that the

department did not comply with ROW 13.34.025(2)(c), which provides that if

"court-ordered remedial services are unavailable for any reason, including lack of

funding," that the department "shall promptly notify the court that the parent is

unable to engage in the treatment due to the inability to access such services."

But Waldo does not demonstrate that the department failed to inform the juvenile

court as required. Nor does Waldo cite to any authority that such a failure would

mandate reversal of a termination order.

       Moreover, a trial court may find that the department has offered all

reasonable services if the evidence shows that the offer of such services would

be futile. K.M.M., 186 Wn.2d at 483. "The provision of services is futile where a

parent is unwilling or unable to participate in a reasonably available service that

has been offered or provided." K.M.M., 186 Wn.2d at 483. Marsden, Popov, and

Dr. Solchany all testified about the rigorous nature of a dialectical behavioral

therapy program. The record showed that Waldo was rarely in full compliance



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No. 76715-1-1/13

with any of her services. Denise Huynh testified that she did not push harder for

Waldo to do dialectical behavioral therapy because Waldo claimed she was

already overwhelmed by the services she was doing, to the point that she was

unable to get R.I.A. to medical or mental health appointments. And Waldo does

not challenge the following findings:

       The mother declined to participate in the in-home service with
       Jennifer Perez that was offered to her because she was too busy.
       The mother participated in the in-home service provided by Cindy
       Irwin mid-November 2014-December 2014 but cancelled at least 8
       in-home appointments and consistently expressed that she was
       overwhelmed with too many appointments. . . .

             ... The mother attended approximately 60% of her
       scheduled sessions with [mental health therapist] Ms. Wilkins.

Clerk's Papers at 118-19, 124. These uncontested findings were sufficient to

support the trial court's finding that "the evidence regarding the mother's

participation in her other services demonstrates that she would most probably not

have attended or participated in the service of [dialectical behavioral therapy]

with the regularity and dedication needed . . . to profit from that service." Clerk's

Papers at 126.

       Waldo argues that the department also failed to offer her inpatient

substance abuse treatment at the beginning of the dependency proceedings,

when it would have been most helpful. This claim is contradicted by the record.

Waldo declined inpatient substance abuse treatment at almost every opportunity

in the dependency proceedings. When Hetzel, Waldo's first department social

worker, suggested inpatient substance abuse treatment, Waldo denied that she



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No. 76715-1-1/14

had a substance abuse problem. When Hopkins, Waldo's substance abuse

treatment provider in 2015 and 2016, offered Waldo assistance getting into

inpatient treatment, Waldo refused. Han, the department social worker in 2015

and 2016, testified that she recommended inpatient treatment to Waldo, but

Waldo "told me that she did not abuse substances." Report of Proceedings(Dec.

7, 2016) at 829. Micah Kurtz, a department supervisor, testified that Waldo had

continually denied having a substance abuse problem "as long as I'd known her."

He said, "I don't know of many people who go to inpatient treatment when they

don't acknowledge a substance abuse issue or other natural consequences in

their life that are leading them to that." Report of Proceedings (Nov. 29, 2016) at

113.

       Nevertheless, Waldo appears to argue that the department should have

asked the juvenile court to order her to participate in inpatient substance abuse

treatment. But Jennie Lindberg, the clinical director for residential treatment at

Evergreen, testified that determining the appropriate level of care is "a medical

diagnosis" that must be made by a chemical dependency professional and "the

court can't assign people to inpatient or outpatient." Report of Proceedings (Dec.

5, 2016) at 453. Waldo's claim that the department should have advocated for

her to remain at Evergreen is similarly unavailing, in light of the testimony that

Waldo was not in compliance with her treatment there.

       Finally, citing In re Termination of S.J., 162 Wn. App. 873, 256 P.3d 470

(2011), Waldo argues that the department failed to offer services "specifically



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No. 76715-1-1/15

tailored to address her co-occurring mental health conditions and substance

abuse." In S.J., the mother struggled with both substance abuse and mental

health issues. A dispositional order required that the mother achieve sobriety

before beginning mental health services. Consequently, the department did not

refer the mother to mental health services until late in the dependency

proceedings, after the mother had unsuccessfully attempted to complete

inpatient substance abuse treatment three times. Once the mother began

addressing her mental health issues, she was able to successfully complete

inpatient substance abuse treatment. Division Three of this court held that her

inability to complete substance abuse treatment was a result of untreated mental

health issues and that she would have been able to remedy her parental

deficiencies if she had been offered mental health treatment sooner.

      Waldo's reliance on S.J. is misplaced. Here, the department did not

intentionally withhold mental health services until Waldo addressed her

substance abuse. Waldo simultaneously received mental health and substance

abuse services throughout the dependency proceedings.

      We affirm the trial court's order terminating Waldo's parental rights to

S.M.M.




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