                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 18, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    In the Matter of the Welfare of                                  No. 47783-1-II

    C.H-K.,

                                  Minor Child,

    T.K. and I.H.,

                                  Appellants,                 UNPUBLISHED OPINION

           v.

    DEPARTMENT OF SOCIAL AND HEALTH
    SERVICES,

                                  Respondent.

          JOHANSON, J. — IH and TK, both of whom have cognitive disorders that affect their

ability to parent, appeal the juvenile court’s order terminating their parental rights to CH-K.1 They

argue that the juvenile court erred in finding that clear, cogent, and convincing evidence supported

its termination order. IH also argues that the juvenile court violated her due process rights. We

disagree and hold that substantial evidence supports the juvenile court’s findings and that IH’s due

process rights were not violated. Accordingly, we affirm.


1
  To provide some confidentiality, we use the minors’ and their family members’ initials in the
case caption and in the body of the opinion.
No. 47783-1-II


                                                FACTS

                                           I. BACKGROUND2

          IH and TK have five children. Between 2009 and 2012, the parents’ three older children

were declared dependent on the State and the parents participated in court-ordered services. The

parents’ rights to these children were terminated in 2013.

          In July 2012, CH-K was born. In October 2012, CH-K was declared dependent. In

November 2013, CH-K’s younger brother, AH-K, was born and since February 2014, AH-K was

placed in in-home dependency. During CH-K’s and AH-K’s dependencies, the parents were

provided with a Safe Care referral, mental health counseling, multiple rounds of counseling from

Family Preservation Services, and Home Builders’3 30-day intensive in-home coaching. TK and

IH were each provided a parent mentor.

          Safe Care is a hands-on parenting education coaching program offered in the home setting

and is designed to increase understanding of safety hazards, health and safety issues, and how to

foster positive parent-child interactions. Typically, Safe Care is offered once a week for 40

minutes to an hour for 18 to 22 weeks. The juvenile court found that the failure to use a video

component did not invalidate the Safe Care’s service. Safe Care uses a variety of instructional

approaches and the juvenile court concluded it was just the sort of adapted service appropriate for

TK and IH.




2
    We rely primarily on the juvenile court’s findings of fact following the bench trial.
3
 Home Builders is an intensive, in-home service addressing the same issues as Safe Care but is
offered for 10 hours per week or more for one month or more.

                                                   2
No. 47783-1-II


       The parents received many services that were adequately adapted to address their learning

disabilities. Although many providers appropriately tailored services and provided information

and tools in a variety of ways and through a variety of modes, the parents were unable to make

long-term, sustained improvement. IH and TK received supervised visits for up to 37 hours per

week including overnight supervised visits.

                                   II. PARENTAL DEFICIENCIES

                                               A. IH

       During the dependency, it was established that IH suffers from a cognitive disorder

affecting her attention, concentration, sequencing, and executive functioning. She was diagnosed

as borderline intellectually disabled, with mixed personality disorder with dependent, avoidant,

and schizoid features and with mild paranoia. IH has difficulty learning and remembering new

parenting skills and does not understand children’s normal or typical developmental stages and

needs. IH often lacks empathy and expresses rigid ideas about how children should act. She has

weak nurturing skills and lacks flexibility in dealing with children’s behaviors. This led to harsh

criticism of the children and damaging actions towards them. Service providers observed that IH

also did not always accurately perceive what occurred, which affected her parenting.

       For example, IH persisted in using a shower spray nozzle to quickly bathe CH-K even

though it caused CH-K anxiety. She also blamed CH-K and spoke harshly to CH-K for normal

behavior like spilling drinks or wetting her pants.

                                              B. TK

       During the dependency it was also established that TK has cognitive disorders that impair

his ability for executive decision making, his ability to prioritize, and his ability to understand


                                                 3
No. 47783-1-II


consequences. TK has a paranoid personality, shows limited ability to process basic information,

and has a lack of knowledge of general principles of child rearing and basic developmental

concepts. TK’s disorders and cognitive limits negatively impacted his parenting. He was rigid in

his approach to CH-K and to IH. He did not communicate effectively with IH or with service

providers. TK was compromised in his ability to manage stress, anger, and to deal with anxiety.

TK also lacked personal insight in regard to his and IH’s limitations that place CH-K’s safety and

healthy development at risk.

                     C. HOME CONDITIONS AND PARENTING ARRANGEMENT

       Service providers found the home environment posed a risk to CH-K. The cluttered home

created tripping hazards, fall hazards, and restricted the normal movement of CH-K within and

outside the home. TK and IH had numerous cats in the home—more than five at a time—that

created an unsanitary environment for the children. The Department of Social and Health Services

(DSHS) worked with TK and IH to address the risks posed by the home environment and offered

services to address the issues. Although at times the home environment improved, the conditions

recurred.   TK and IH failed to recognize that the home conditions interfered with child

development and posed a significant safety risk.

       This safety risk heightened when IH had to care for more than one child, as she was not

capable of the focus necessary to keep multiple children safe in the home environment. In 2014

and 2015, TK began spending more time at home with IH and AH-K and with CH-K during her

visits. TK was higher functioning than IH and his presence mitigated some of her deficiencies,

but TK failed to acknowledge IH’s deficiencies. TK and IH did not communicate well with each




                                                   4
No. 47783-1-II


other, which negatively impacted their parenting. If CH-K and AH-K had been returned to their

care, TK’s plan was to work outside the home with IH as the primary caretaker.

                                III. TERMINATION FACT FINDING

        On March 15, 2013, DSHS filed a petition to terminate IH and TK’s parental rights to CH-

K. The termination trial was continued five times between 2013 and 2015. In March 2015, the

fact-finding hearing was held. CH-K was three years old at the time of trial. Several service

providers who worked with TK and IH between 2010 and 2015 testified. Seven of those service

providers testified that TK and IH were not capable of remedying their parental deficits and could

not adequately provide care for CH-K in the foreseeable future.

        On June 25, 2015, the juvenile court ordered termination of TK and IH’s parental rights to

CH-K.     Based on its findings, the juvenile court concluded that the elements of RCW

13.34.180(1)(a) through (f) had been established by clear, cogent, and convincing evidence. The

juvenile court also concluded that the State established that the mother and father were currently

unfit and unable to parent and that termination of the mother and father’s parental rights was in

CH-K’s best interest.

                                           ANALYSIS

                        I. SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS

                          A. STANDARD OF REVIEW AND RULES OF LAW

        The juvenile court may order termination of a parent’s rights if DSHS establishes the six

elements in RCW 13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence. RCW

13.34.190(1)(a)(i). “Clear, cogent and convincing evidence exists when the evidence shows the

ultimate fact at issue to be highly probable.” In re Dependency of K.S.C., 137 Wn.2d 918, 925,


                                                5
No. 47783-1-II


976 P.2d 113 (1999). In addition to the statutory elements of RCW 13.34.180(1), due process

protections require that a court make a finding of unfitness before parental rights can be terminated.

In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995). This finding does not need

to be made explicitly because satisfying all of the statutory elements raises an implied finding of

parental unfitness. In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011). DSHS

also must prove by a preponderance of the evidence that termination of parental rights is in the

child’s best interests. RCW 13.34.190(1)(b).

       We uphold the juvenile court’s factual findings if those findings are supported by

substantial evidence. In re Parental Rights to M.J., 187 Wn. App. 399, 406, 348 P.3d 1265 (2015).

Where a party is required to establish its case by “‘clear, cogent, and convincing evidence,’” we

incorporate that standard of proof into our review. In re Dependency of P.D., 58 Wn. App. 18, 25,

792 P.2d 159 (1990) (quoting RCW 13.34.190). Thus, the question to be resolved is not merely

whether there is substantial evidence to support findings but whether there is substantial evidence

in light of the “highly probable” test. In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831

(1973). Because the juvenile court has the advantage of observing the witnesses, deference to the

juvenile court is particularly important in termination proceedings. K.S.C., 137 Wn.2d at 925. We

do not review credibility determinations or weigh the evidence. In re Welfare of A.G., 155 Wn.

App. 578, 588, 229 P.3d 935, remanded, 169 Wn.2d 1032 (2010).




                                                  6
No. 47783-1-II


             B. SUBSTANTIAL EVIDENCE THAT ALL NECESSARY SERVICES PROVIDED

1.     DSHS TAILORED SERVICES TO MEET PARENTS’ NEEDS

       Both TK and IH argue that the juvenile court’s finding that all necessary services were

appropriately tailored is unsupported by substantial evidence.4 We disagree.

       Under RCW 13.34.180(1)(d), DSHS must prove “[t]hat 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.” “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).

       The Americans with Disabilities Act (ADA) requires public entities to make reasonable

accommodation for disabled persons, but does not require public entities to provide the disabled

with services not offered to others. 42 U.S.C. § 12132; In re Welfare of H.S., 94 Wn. App. 511,

521, 973 P.2d 474 (1999). A termination should be upheld and the ADA is not violated where all

reasonably available services are provided to the parents, the services were modified by the

individual providers to accommodate parents’ special needs, and the juvenile court’s finding that

the best interests of the child were met by termination of parental rights is amply supported by

clear, cogent, and convincing evidence. In re Welfare of A.J.R., 78 Wn. App. 222, 230, 896 P.2d

1298 (1995); see also H.S., 94 Wn. App. at 521.




4
 The parties do not dispute that the first three elements of RCW 13.34.180(1) were met: (a) CH-
K was found dependent, (b) the juvenile court entered a dispositional order, and (c) CH-K had
been removed for over six months. RCW 13.34.180(a)-(c).

                                                 7
No. 47783-1-II


        The juvenile court found that while some providers throughout the years failed to provide

ideally adapted services, many service providers appropriately tailored their services for TK and

IH. Brenda Sullens, a parent coach, met with both TK and IH from March 2011 to July 2012 while

they were trying to parent their three older children. Sullens identified the specific needs of the

family and tailored her approach based on TK’s and IH’s learning style. Stephen Harding, TK’s

therapist from January 2012 to June 2012, testified that he had experience working with parents

with cognitive impairments and that the therapy he provided was appropriate for TK. Laura

Gustavson, IH’s therapist from May 2011 to January 2012, testified that she was aware of IH’s

cognitive deficits and accommodated her treatment accordingly. Parenting Protection Group

instructor Christa Sommerfeld worked with both TK and IH from September 2012 to May 2013.

Sommerfeld testified that she allowed them to progress through the program, despite their inability

to complete assignments to the program’s specifications, as an accommodation for their

disabilities.

        From December 2013 until 2015, Denise Johnson, a Child Protective Services (CPS)

investigation unit supervisor, oversaw TK and IH’s case. Johnson has a degree in education and

training in working with and designing service plans for parents with developmental delays.

Johnson spoke to all of TK’s and IH’s service providers when she was on the case and evaluated

their methods. She instructed the service providers to offer their instructions in multiple forms,

including in writing, so TK and IH could review the information more than once and seek advice

about it. Johnson also reviewed a report containing recommendations to DSHS about working

with adults with developmental disabilities. From this report, Johnson learned that for a family

like TK and IH’s, it was important to offer hands-on education using different methods that would


                                                8
No. 47783-1-II


allow them to review the material multiple times, to establish trust through openness and

transparency, and to consider the economic status and support system available to the family.

        Johnson also referred TK and IH to Safe Care for a second time. The Safe Care program

is designed to increase understanding of child development, home safety and health, and to foster

positive parent/child interaction. Johnson stated that these were key areas of concern for TK and

IH and that Safe Care was an appropriate program to meet their needs and increase their skills.

When AH-K was returned to the home, Johnson also recommended the Home Builders program,

an intensive family preservation service which provides at least 10 hours a week of support.

Johnson noted that while typically there are funding challenges associated with offering Home

Builders and Safe Care at the same time, she accommodated for TK’s and IH’s needs and ensured

they received both. Johnson also referred them each to a foster parent mentor, and in order to

serve TK’s and IH’s needs, she requested additional mentorship for each of them so the program

would extend six months longer than usual.

        Megan Kirshbaum, Ph.D in clinical psychology, testified that Tina Santiago, an in-home

therapist for Institute for Family Development, worked with the family from September 2012

through May 2013 and appropriately tailored her services to TK’s and IH’s needs by being

respectful and using creative, concrete, and varying approaches. Kirshbaum further testified that

Katie Smigaj, who worked with the family from May to July 2013 and from July to December

2014, also adapted her work to TK’s and IH’s needs. Smigaj did so by praising strengths and

combining written and verbal instruction. Kirshbaum also noted that the Safe Care program that

the family received includes safety scenarios that are appropriate for parents with intellectual

disabilities.


                                                9
No. 47783-1-II


       Thus, substantial evidence supports the juvenile court’s finding that DSHS provided all

necessary, reasonably available services and that services were appropriately tailored to TK’s and

IH’s needs. A.J.R., 78 Wn. App. at 230.

2.     DSHS WAS NOT REQUIRED TO OFFER ADDITIONAL SERVICES

       TK and IH also argue that DSHS should have provided additional services in order to meet

the requirements of RCW 13.34.180(1)(d). We disagree.

       DSHS does not have to provide services when the parent is unable or unwilling to make

use of them. In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988). And

even if DSHS “inexcusably fails” to offer services to a willing parent, termination is still

appropriate if the services “would not have remedied the parent’s deficiencies in the foreseeable

future.” In re Dependency of T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001); In re Welfare of

Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983).5

               a.     VIDEO RECORDED SERVICES

       TK argues that he should have been offered video recorded services. The juvenile court

found there was a misunderstanding regarding whether, after initially refusing to be videotaped,

TK later consented to video use. But the juvenile court found that failure to use the video

component in the Safe Care program did not invalidate the service. Safe Care used a variety of

instructional approaches and was an adapted service appropriate for TK and IH. TK may have

been willing to participate in a video service through Safe Care or another program. But TK has



5
 DSHS’s responsibility is not fulfilled by a mere offer of services. See In re Dependency of D.A.,
124 Wn. App. 644, 653-54, 102 P.3d 847 (2004) (holding that DSHS must follow up if a party
who once declined services expresses a willingness to participate later and cannot point to the
efforts of others to seek out or offer certain services where DSHS did not).

                                               10
No. 47783-1-II


not shown that the addition of video recorded services would have remedied his parental

deficiencies in the near future.

               b.       ADDITIONAL EVALUATIONS AND MULTIPLE CHILDREN SERVICES

       IH argues that DSHS should have offered her a learning style evaluation or services to help

care for two children.6 But substantial evidence shows that it would have been futile to offer TK

and IH additional services. DSHS offered IH a parenting evaluation and a neuropsychological

evaluation with parenting components.         IH also received individual counseling, cognitive

behavioral therapy, and couples’ counseling. Additionally, IH was offered therapy and parent

coaching during the dependencies of her three older children addressing how to care for multiple

children at once.

       Substantial evidence supports the finding that despite being offered evaluations and

multiple services, TK and IH were still unable to make long-term, sustained improvements. The

service providers who worked with TK and IH from 2011 to 2013 reported that their progress in

developing parenting skills was stagnant, TK and IH failed to acknowledge their parenting

deficiencies, and most of the 2013 to 2015 service providers stated that TK and IH could not parent

two children at once.




6
  IH also argues, “The failure to tailor the mother’s services to meet her learning needs violated
the ADA.” Br. of Appellant at 15. However, the ADA is not violated where all reasonably
available services are provided to the parents, the services were modified by the individual
providers to accommodate parents’ special needs, and the juvenile court’s finding that the best
interests of the child were met by termination of parental rights is amply supported by clear, cogent,
and convincing evidence. A.J.R., 78 Wn. App. at 230. As shown above, substantial evidence
shows that services were reasonably tailored to meet the parents’ special needs. And IH does not
offer analysis or argument based on the ADA; rather, she argues about whether substantial
evidence supports the finding under RCW 13.34.180(1)(d). For these reasons, her argument fails.

                                                 11
No. 47783-1-II


       None of the 2013 to 2015 service providers recommended unsupervised visitation; rather,

they recommended additional services. In 2015, based on comments from the 2013 to 2015 service

providers and her own evaluations of TK and IH, Johnson testified that IH and TK regressed to

old ways of thinking or functioning and it would take years before CH-K could be in their care.

Multiple providers noted that TK’s and IH’s progress was stymied by their refusal to acknowledge

their parental deficiencies and their belief that DSHS took their children away to profit from the

adoptions. TK and IH have failed to show that additional evaluations or additional services would

have remedied the parental deficiencies in the near future. T.R., 108 Wn. App. at 164; Hall, 99

Wn.2d at 850-51. Thus, substantial evidence supports the juvenile court’s finding that all

necessary services were expressly and understandably offered.

      C. SUBSTANTIAL EVIDENCE OF LITTLE LIKELIHOOD CONDITIONS WILL BE REMEDIED

       TK and IH argue that the juvenile court’s finding that there was little likelihood that

conditions could have been remedied to permit CH-K to return home in the near future is

unsupported by substantial evidence.7 We disagree.

       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. RCW 13.34.180(1)(e). In determining




7
  IH argues also that there was evidence showing that she could overcome parenting issues and
without provision of properly tailored services, it is impossible to determine if she could have
parented CH-K in the near future, while TK argues that there was concrete evidence he progressed
with remedying his deficits. These arguments are best characterized as arguments about the weight
placed on the evidence. But we do not review credibility determinations or weigh evidence on
appeal. A.G., 155 Wn. App. at 588. Thus, we do not review the juvenile court’s decision to give
greater or lesser weight to certain evidence.

                                               12
No. 47783-1-II


whether RCW 13.34.180(1)(e) has been met, the focus is on whether parenting deficiencies have

been corrected. A.G., 155 Wn. App. at 590.

        If DSHS offers or provides all necessary services reasonably capable of correcting

parenting deficiencies within the foreseeable future and the parent does not substantially improve

his or her deficiencies within a year of the dispositional order, a rebuttable presumption arises that

DSHS has sufficiently proven there is little likelihood conditions will be remedied in the near

future. RCW 13.34.180(1)(e). Once the rebuttable presumption applies, it shifts the burden of

production to the parent, but DSHS must still convince the juvenile court that it is highly probable

the parent would not improve in the near future. In re Welfare of C.B., 134 Wn. App. 942, 956,

143 P.3d 846 (2006).

        Even where evidence shows that a parent may eventually be capable of correcting

deficiencies, termination is appropriate if those deficiencies will not be corrected in the near future.

A.G., 155 Wn. App. at 590. A determination of what constitutes “near future” depends on the

child’s age and the circumstances of the placement. Hall, 99 Wn.2d at 844, 850-51 (finding eight

months not in the foreseeable future for a four-year-old); see also In re Dependency of A.W., 53

Wn. App. 22, 24, 32, 765 P.2d 307 (1988) (one year not in near future of three-year-old). The

juvenile court may consider the parent’s history of parenting and compliance with services to

determine whether conditions are likely to be remedied in the near future. In re Dependency of

J.C., 130 Wn.2d 418, 428-29, 924 P.2d 21 (1996).

        The juvenile court here found there was little likelihood conditions could be remedied so

CH-K could be returned to TK’s and IH’s care in the near future. Specifically, the juvenile court

found that


                                                  13
No. 47783-1-II


       [b]oth parents have participated extensively in services for a number of years
       spanning this child’s dependency as well as the dependencies of the parents’ older
       children. Though the parents have, at times, demonstrated the ability to implement
       new parenting skills, the evidence showed that even after repeating services,
       progress by both parents has not been sustained. While there is little evidence of
       imminent risk to the child, the parents are not able to maintain and apply new
       parenting skills in the long-term.

Clerk’s Papers (CP) at 833.

1.     IH’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES

       Substantial evidence supports the juvenile court’s finding that IH was unlikely to remedy

her deficiencies to parent CH-K. From 2012 to 2015, IH did not consistently progress in her

services to remedy parental deficiencies and service providers who worked with her during various

periods from 2011 to 2015 stated that CH-K should not be placed in her sole care.

       Johnson and the mid-2012 to 2014 social worker, Joel Pettit, both testified that IH

consistently struggled to give CH-K emotional feedback and connection. From October 2013 until

March 2015, Jody Smetak was IH’s state-provided mental health therapist. Smetak also worked

with TK and IH together in couples’ sessions. Smetak testified that IH did not acknowledge how

her parental deficiencies lead to her children’s dependencies, did not relate to CH-K in a

developmentally appropriate way, bathed CH-K in a traumatic way, and could not focus on CH-K

and AH-K at the same time. Smetak noted IH regressed or did not progress during treatment. IH

also told Smetak on more than one occasion that she could not meet the needs of both children at

the same time.

       Erica Toth, who supervised IH’s visitation before trial from 2014 to 2015, testified that IH

had difficulty focusing on two children at once, had age-inappropriate conversation and play with

CH-K, and yelled at CH-K for peeing on the floor. This substantial evidence supports the juvenile


                                               14
No. 47783-1-II


court’s finding that although IH may not have posed an imminent risk to CH-K even after receiving

services, IH’s progress was not sustained and there was little likelihood that she could remedy her

parental deficiencies in the near future.

2.     TK’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES

       Substantial evidence supports the juvenile court’s finding that TK was unlikely to remedy

his deficiencies to parent CH-K. TK’s reliance on C.B. to support his argument that substantial

evidence does not support the juvenile court’s finding is unpersuasive. In C.B., this court found a

mother’s primary parenting deficit was drug and alcohol addiction. 134 Wn. App. at 948. The

mother entered a treatment program that she almost completed by the time of trial. C.B., 134 Wn.

App. at 948. While DSHS in C.B. argued that this was not enough progress to show the mother

would improve conditions within six months to a year, 134 Wn. App. at 958, this court held that

       where a parent produces evidence that she has been improving over a four-month
       period after the State files a termination petition but before the termination hearing,
       the State may not rely solely on past performance to prove that it is highly probable
       that there is little likelihood that the parent will be reunited with her children in the
       near future.

134 Wn. App. at 953.

       C.B. is distinguishable from TK’s case. There, the State presented no evidence, other than

past evidence, and testimony from a social worker that the mother would need to engage in anger

management, demonstrate ongoing sobriety, and keep a safe, stable home. C.B., 134 Wn. App. at

956. Here, the juvenile court was presented with substantial, past and recent evidence that T.K.’s

deficiencies were ongoing and would take more than a year to improve.

       There is a notable difference, too, between parental deficiencies due to drug and alcohol

addiction as in C.B. and cognitive developmental disabilities as presented here. Michael O’Leary,


                                                  15
No. 47783-1-II


Ph.D. in clinical and forensic psychology, testified and his evaluation was admitted into evidence.

O’Leary evaluated both parents in 2010 and opined that because the parents’ deficiencies involve

developmental, cognitive issues, it is unlikely that they will ever be able to remedy their resulting

parenting deficits. O’Leary concluded that TK’s inabilities interfere with his ability to learn,

retain, and implement new parenting behaviors.

       According to service providers and TK’s own testimony, TK failed to acknowledge his

parental deficiencies that led to his children’s dependencies. O’Leary predicted in 2010 that TK’s

deficiencies would prevent him from providing his children with a safe, stable home and from

anticipating hazards. Parent coaches Sullens from 2011 to 2012 and Shaune Putas from 2013 to

2104 assisted TK with developing parenting skills and cleaning up hazards in the home. But when

Johnson visited the home a week before trial, the home was even more cluttered and hazardous

than before.

       Although TK showed more child development awareness than IH, he did not prevent IH

from engaging in inappropriate behaviors with CH-K in his presence. And while TK decreased

his work hours before the termination trial to help IH with the children, he planned to return to

work full time if both CH-K and AH-K were returned to his and IH’s care, leaving IH as the

primary parent. Several providers who worked with TK between 2011 and 2015 also testified that

TK was unable to make sustained progress from his services and could not parent two young

children at once.

3.     REMEDY NOT IN THE NEAR FUTURE

       Substantial evidence supports the finding that at the time of dependency, neither TK nor

IH was likely to remedy their deficiencies in the near future. Johnson testified that as of the time


                                                 16
No. 47783-1-II


of trial, both TK and IH had regressed to old ways of thinking or functioning and it would take

“years” before CH-K could be in their care. 9 Report of Proceedings (RP) at 1638. And O’Leary

predicted in 2010 that because TK’s and IH’s deficiencies are developmental, cognitive issues, it

is unlikely they will ever be able to remedy their resulting parenting deficits. A year or more is

not in the near future for a three-year-old—CH-K’s age at the time of trial. A.W., 53 Wn. App. at

24, 32. We hold that substantial evidence supports the juvenile court’s finding that there was little

likelihood conditions could be remedied so CH-K could be returned to TK and IH’s care in the

near future under RCW 13.34.180(1)(e). J.C., 130 Wn.2d at 428.

                       D. DIMINISHED PROSPECTS FOR EARLY INTEGRATION

       IH argues that the juvenile court improperly conflated the best interest factor and a finding

that termination would help achieve permanent placement in the near future. TK argues that

evidence before the juvenile court undermined the juvenile court’s finding that he and IH placed

CH-K into anxiety-inducing settings. We disagree.

       Under RCW 13.34.180(1)(f), DSHS must prove that “continuation of the parent and child

relationship clearly diminishes the child’s prospects for early integration into a stable and

permanent home.” DSHS can prove RCW 13.34.180(1)(f) in one of two ways: (1) that prospects

for a permanent home exist, but the parent-child relationship prevents the child from obtaining that

placement or (2) that the parent-child relationship has a damaging and destabilizing effect on the

child that would negatively impact the child’s integration into any permanent and stable home. In

re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013).

       Under the first method, “[RCW 13.34.180(1)(f)] is mainly concerned with the continued

effect of the legal relationship between parent and child, as an obstacle to adoption; it is especially


                                                  17
No. 47783-1-II


a concern where children have potential adoption resources.” In re Dependency of A.C., 123 Wn.

App. 244, 250, 98 P.3d 89 (2004). Under the second method, the juvenile court considers whether

the child is emotionally and psychologically prepared to integrate into a stable and permanent

home should one become available. R.H., 176 Wn. App. at 428 (quoting In re Dependency of

K.D.S., 176 Wn. 2d 659, 294 P.3d 695 (2013).

       Here, the juvenile court found that

       [c]ontinuation of the parent/child relationship clearly diminishes the child’s
       prospects for early integration into a stable and permanent home. [CH-K] has been
       out of the parents’ care for nearly her entire life. During this time, the parents have
       not corrected their deficiencies so that she can be returned to their care. The parents
       have repeatedly put their child into anxiety-inducing and emotionally-distraught
       settings. This child needs permanency and without termination of parental rights,
       the child will not be able to find a permanent home in the near future.

CP at 833.

       First, contrary to IH’s argument, the juvenile court made separate findings regarding RCW

13.34.180(1)(f) and CH-K’s best interests. The best interest finding includes that “[t]ermination

will allow [CH-K], as soon as possible, to enter into a stable family relationship where her

individual needs can be met.” CP at 834. But the inclusion of this language in the best interest

finding does not mean the juvenile court conflated the best interest and RCW 13.34.180(1)(f)

analyses: finding of fact 2.25 specifically addresses the juvenile court’s findings in support of

RCW 13.34.180(1)(f), and the juvenile court’s best interest finding is supported by the juvenile

court’s eight-page ruling.

       Second, TK’s challenge to the juvenile court’s finding that a continued relationship with

the parents negatively affected CH-K goes to the weight placed on the evidence. TK argues that

substantial evidence does not support the finding that TK and IH repeatedly placed CH-K into


                                                 18
No. 47783-1-II


anxiety-inducing and emotionally distraught settings where other evidence showed that he was a

nurturing presence and offset IH’s “less sensitive parenting.” Br. in Supp. of Mot. for Accelerated

Review at 47. But we do not weigh evidence on appeal. A.G., 155 Wn. App. at 588.

          Third, substantial evidence supports the finding that a continued relationship diminished

CH-K’s chances for permanent placement. DSHS proved a permanent home was available to CH-

K, but a continued relationship with IH and TK could prevent her placement there. CH-K was out

of her parents’ care since birth in 2012 and never had unsupervised visits with her parents. CH-K

had only one foster home, which was a preadoptive home. Johnson testified that the parental

relationship between CH-K and her parents affected her ability to integrate into a permanent and

stable home because CH-K would not be “legally free” to be adopted. 7 RP at 1321. Thus,

substantial evidence supports a finding that at the time of dependency, the effect of continuing

CH-K’s legal relationship to her parents was an obstacle to a viable adoption. A.C., 123 Wn. App.

at 250.

          Substantial evidence also supports a finding that DSHS proved that the parent-child

relationship had a damaging and destabilizing effect. From 2012 to 2015, TK and IH did not

consistently progress in their services to remedy parental deficiencies and many of the parents’

service providers stated that CH-K should not be placed in their sole care. Johnson testified that

remaining between two home environments stunted CH-K’s development. And Johnson reported

that while in CH-K’s foster home, CH-K was talking, thriving, and developing at an average rate,

but when CH-K was with her parents, there was concern she did not talk as much and regressed

emotionally. TK and IH also repeatedly placed CH-K in distressing situations including bathing

her in a traumatic manner and taking her to an emotional visitation review meeting with DSHS.


                                                 19
No. 47783-1-II


Substantial evidence thus supports a finding that a continued dependency may have had a

damaging and destabilizing effect on CH-K’s emotional and psychological state, negatively

impacting her integration into a stable and permanent home. R.H., 176 Wn. App. at 428.

                                    E. UNFITNESS TO PARENT

       Both TK and IH argue that substantial evidence does not support the juvenile court’s

findings that they are unfit to parent CH-K. We disagree.

       DSHS must establish by clear, cogent, and convincing evidence that the parent is currently

unfit. In re Welfare of A.B., 181 Wn. App. 45, 58, 323 P.3d 1062 (2014). To prove current

unfitness, DSHS must show that the parent’s deficiencies prevent the parent from providing the

child with “‘basic nurture, health, or safety.’” A.B., 181 Wn. App. at 61 (quoting RCW 13.34.020);

see also In re Custody of B.M.H., 179 Wn.2d 224, 236, 315 P.3d 470 (2013) (holding a parent is

unfit “if he or she cannot meet a child’s basic needs”).

       The child’s right to basic nurturing includes the right to a safe, stable, and permanent home

and a speedy resolution of the dependency proceeding. RCW 13.34.020; In re Dependency of

J.A.F., 168 Wn. App. 653, 668, 278 P.3d 673 (2012). When the rights of basic nurture, physical

and mental health, and safety of the child and legal rights of the parent are in conflict, the rights

and safety of the child should prevail. RCW 13.34.020. If DSHS proves the elements of RCW

13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence, an implicit finding of

current parental unfitness may be made. K.N.J., 171 Wn.2d at 577.

       Here, the juvenile court found that

       the parents are not currently fit to parent this child. The parents have failed to
       adequately provide a safe and nurturing environment for this child on a consistent
       and sustained basis. The parents have repeatedly demonstrated an inability to put
       this child’s emotional and developmental needs first. The parents have failed to

                                                 20
No. 47783-1-II


       consistently provide a safe home environment. Parental support from friends,
       family, or community members is not sufficient to overcome the parents’
       deficiencies that affect their ability to provide adequate care and supervision for
       this child.

CP at 834.

       Regarding TK’s deficiencies, the juvenile court also found that he has a cognitive disorder

impairing his ability to make decisions, prioritize, and understand consequences. He is paranoid

and has a “limited abilit[y] to process basic information, and has a lack of knowledge of general

principles of childrearing and basic developmental concepts.” CP at 830. These disorders and

cognitive limits negatively impacted his parenting because he was rigid in his interactions with

CH-K and IH, did not effectively communicate with IH or providers, did not consistently address

his home environment, was compromised in his ability to manage stress, anger, and to deal with

anxiety, and lacked insight into his and IH’s limitations, putting CH-K’s safety and healthy

development at risk. Further, TK’s interactions with CH-K “negatively impact[ed] the child’s

emotional development,” and as he parented, he was unable to account for CH-K’s normal, age-

appropriate behavior. CP at 831.

1.     UNFITNESS PRESUMPTION

       The first three elements of RCW 13.34.180(1) are undisputed and as addressed above, the

remaining elements of RCW 13.34.180(d) through (f) were also proven by clear, cogent, and

convincing evidence. Thus, an implicit finding of current parental unfitness may be made. K.N.J.,

171 Wn. 2d at 577. However, the parties’ arguments related to unfitness are addressed below.

2.     UNFITNESS AS NONCUSTODIAL PARENT NOT A NECESSARY FINDING

       IH argues that the juvenile court did not have substantial evidence to “prove she was

currently unfit to be a noncustodial parent.” Br. of Appellant at 20.

                                                21
No. 47783-1-II


3.     SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT IH WAS UNFIT

       Even if we address IH’s arguments on the merits, substantial evidence supports the finding

that IH is unfit. Service providers testified that despite services offered between 2009 and 2015,

IH lacked the ability to emotionally connect with CH-K, she put CH-K into distressing situations,

interacted with CH-K in age-inappropriate ways, failed to remedy the safety and sanitation hazards

in the home, and stated and exhibited that she cannot parent two children at once. And from 2012

to 2015, IH did not consistently progress with her services to remedy parental deficiencies and

several of her service providers stated that CH-K should not be placed in her sole care. Thus,

substantial evidence supports the juvenile court’s finding that at the time of dependency IH was

unfit to meet CH-K’s basic needs.

4.     SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT TK WAS UNFIT

       TK argues substantial evidence does not support the juvenile court’s findings that he was

unfit and its related findings, and he relies on A.B. for support. But TK’s arguments are

unpersuasive. In A.B., this court stated that the existence of cognitive impairments is not proof

that a parent is unfit unless the cognitive impairment directly impacts the ability to parent, and thus

the question is whether the resulting parenting deficiencies can be corrected. 181 Wn. App. at 65.

There, DSHS failed to prove that the mother was unfit because it failed to prove that it was highly

probable that her parenting deficiencies rendered her unable to provide for her child’s basic needs.

A.B., 181 Wn. App. at 64-65.

       Here, unlike in A.B., the juvenile court did not rely solely on TK’s cognitive deficits, and

substantial evidence supports the juvenile court’s findings that TK’s deficits rendered him unable




                                                  22
No. 47783-1-II


to provide for CH-K’s basic needs.8 The juvenile court relied on evidence that TK failed to provide

a safe and nurturing home environment for CH-K on a consistent basis, that TK never recognized

his or IH’s deficiencies, which was problematic because IH would be CH-K’s primary caretaker

while he was at work, that TK could not handle the stress and tasks necessary to parent two children

at once, and that neither parent had support sufficient to overcome their deficiencies. The juvenile

court also relied on evidence that from 2012 to 2015, TK did not consistently progress with his

services to remedy parental deficiencies, and his service providers stated that CH-K should not be

placed in his sole care. Thus, the juvenile court’s finding that TK was unfit is supported by

substantial evidence.

       Finally, contrary to TK’s arguments, the related findings detailing TK’s deficiencies were

also supported by substantial evidence. O’Leary’s report and testimony from subsequent providers

support the findings regarding TK’s cognitive disorder, the impediments it caused to his parenting,

and his paranoia. Service providers also testified that he lacked knowledge of parenting and

developmental concepts, that he interacted in a rigid manner with CH-K and IH, that he did not

communicate effectively with IH or providers, that he was compromised in his ability to manage

stress, anger, and to deal with anxiety, that he lacked insight into his and IH’s limitations, and that

his interactions with CH-K negatively impacted her development.




8
  TK points to evidence that his impairments and the home conditions posed no immediate or
severe risk to CH-K’s safety, that he acted in a nurturing manner towards CH-K, that he helped IH
interact appropriately with CH-K, that he functioned well and without conflict at work, and that
while he did not acknowledge his parenting deficiencies at trial or to service providers, his actions
to resolve them “offset” his words. But we do not weigh evidence on appeal. A.G., 155 Wn. App.
at 588. Giving greater weight to other evidence rather than the evidence that TK emphasizes is
not a juvenile court decision that we review. A.G., 155 Wn. App. at 588.
                                                  23
No. 47783-1-II


       We conclude that because the six required factors were proved by clear, cogent, and

convincing evidence, the juvenile court’s finding of unfitness is also implicitly supported by clear,

cogent, and convincing evidence.

                                   F. BEST INTERESTS OF CH-K

       Both parties challenge aspects of the juvenile court’s “best interest” of the child finding.

We disagree with the parties’ challenges.

       Although parents have a fundamental liberty interest in the care and custody of their

children, the paramount consideration in a termination proceeding is the welfare of the children.

In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979).

       The juvenile court has broad discretion to determine the best interests of the child and its

decision is entitled to great deference. Young, 24 Wn. App. at 395. Where a parent has been

unable to rehabilitate over a lengthy dependency period, a juvenile court is “‘fully justified’” in

finding termination in the child’s best interests rather than “‘leaving [the child] in the limbo of

foster care for an indefinite period while [the parent] sought to rehabilitate himself.’” T.R., 108

Wn. App. at 167 (alterations in original) (quoting A.W., 53 Wn. App. at 33). The child’s right to

basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of

the termination proceeding. RCW 13.34.020.

       Here, the juvenile court stated,

       [T]he parents are not currently fit to parent this child. The parents have failed to
       adequately provide a safe and nurturing environment for this child on a consistent
       and sustained basis. The parents have repeatedly demonstrated an inability to put
       this child’s emotional and developmental needs first. The parents have failed to
       consistently provide a safe home environment. Parental support from friends,
       family, or community members is not sufficient to overcome the parents’
       deficiencies that affect their ability to provide adequate care and supervision for
       this child.

                                                 24
No. 47783-1-II



CP at 834. And

       [this] court finds by a preponderance of the evidence that termination of the
       parent/child relationship is in the best interest of the child. Termination will allow
       the child, as soon as possible to enter into a stable family relationship where her
       individual needs can be met.

CP at 834.

       IH argues that the juvenile court improperly conflated the best interest standard and that

termination would help achieve permanent placement in the near future. First, contrary to IH’s

argument, the juvenile court did not improperly conflate the best interest standard and that

termination would help achieve permanent placement in the near future. Here, as discussed above,

the juvenile court did not conflate the standards but instead made separate findings regarding

impediments to CH-K obtaining permanency and CH-K’s best interests. IH’s argument fails.

       TK argues that because “[DSHS] failed to establish each of the allegations under RCW

13.34.180(1), however, the trial court’s ‘best interests’ determination was premature.” Br. in Supp.

of Mot. for Accelerated Review at 48. After proving the elements of RCW 13.34.180, DSHS must

then prove by a preponderance of the evidence that termination of parental rights is in the best

interests of the child. RCW 13.34.190(1)(b); A.J.R., 78 Wn. App. at 228. Contrary to TK’s

argument, the finding that termination is in CH-K’s best interests was not premature because as

shown above, each factor to support termination was established by clear, cogent, and convincing

evidence. Service providers who worked with TK and IH from 2009 to 2015 testified that the

parents’ progress with services was stagnant or would regress and that they did not recommend

either parent have sole responsibility for CH-K.




                                                25
No. 47783-1-II


       The juvenile court had substantial evidence before it to support a finding that termination

was in CH-K’s best interests rather than leaving her in foster care for an indefinite period. T.R.,

108 Wn. App. at 167. We conclude that the parties’ arguments fail and that the juvenile court’s

finding that termination was in CH-K’s best interests was supported by a preponderance of

evidence.

                                 II. NO DUE PROCESS VIOLATION

       IH argues that the juvenile court violated her due process rights because the State had no

compelling interest to support termination of her parental rights and termination was not the least

restrictive alternative. We disagree.

       The Fourteenth Amendment to the United States Constitution provides that no State shall

“deprive any person of life, liberty, or property, without due process of law.” Parents have a

fundamental liberty interest in the care, custody, and control of their children. Troxel v. Granville,

530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Interference with this fundamental

right is constitutional “‘only if the State can show that it has a compelling interest and such

interference is narrowly drawn to meet the compelling state interest involved.’” In re Dependency

of I.J.S., 128 Wn. App. 108, 116, 114 P.3d 1215 (2005) (quoting In re Custody of Smith, 137

Wn.2d 1, 15, 969 P.2d 21 (1998), aff’d sub nom. Troxel, 527 U.S. 57). Consideration of whether

an interference is narrowly drawn can include evaluation of whether a lawful alternative and less

restrictive means could have been used. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280

n.6, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986). Establishing the RCW 13.34.180(1) termination

factors, and factor (e) in particular, by clear, cogent, and convincing evidence also satisfies




                                                 26
No. 47783-1-II


constitutional due process for terminating a parent’s fundamental liberty interest. K.R., 128 Wn.2d

at 142.

                                  A. COMPELLING STATE INTEREST

          IH argues that the government has no compelling interest at stake because the parents do

not pose an imminent risk or threat to CH-K’s welfare. We conclude that the State had a

compelling interest.

          In a termination proceeding, the State has a compelling interest to protect and prevent harm

to children and has an obligation to intervene. I.J.S., 128 Wn. App. at 116; see also Santosky v.

Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). When parental actions or

decisions seriously conflict with the physical or mental health of the child, the State has a parens

patriae right and responsibility to intervene to protect the child. I.J.S., 128 Wn. App. at 116.

Establishing the child is dependent under RCW 13.34.180(1)(a) and that it is unlikely conditions

can be remedied so the child can be returned in the near future under RCW 13.34.180(1)(e) is

equivalent to finding harm to the child. I.J.S., 128 Wn. App. at 118.

          Here, as stated above, that CH-K was found dependent under RCW 13.34.180(1)(a) is

undisputed. And because substantial evidence supports the finding that it is unlikely conditions

can be remedied so that CH-K can be returned in the near future under RCW 13.34.180(1)(e), harm

to CH-K has been established and the State had a compelling interest to intervene. I.J.S., 128 Wn.

App. at 118.




                                                  27
No. 47783-1-II


       Substantial evidence also supports the State’s compelling interest. Service providers

testified that (1) the parents could not meet CH-K’s emotional needs or relate to her in a

developmentally appropriate way, (2) CH-K was developmentally stunted by straddling two

homes, (3) conditions in the home remained hazardous to CH-K’s safety, and (4) neither parent

could provide sole care to CH-K. Thus, we conclude that IH’s and TK’s actions seriously

conflict with the physical or mental health of the child such that the State had a compelling

interest to intervene. I.J.S., 128 Wn. App. at 116.

                                 B. LEAST RESTRICTIVE MEANS

       IH also argues that termination was not narrowly tailored where DSHS could have pursued

the less restrictive alternatives of (1) prolonging dependency to offer continued services, (2)

pursuing a dependency guardianship, or (3) a third party custody order. We disagree.

       Children have the right to basic nurture, which includes a speedy resolution of dependency

proceedings. RCW 13.34.020. Thus, a petition for termination of parental rights must be filed

whenever a child has been in foster care for 15 of the past 22 months unless compelling reasons

excuse this requirement. RCW 13.34.145(1)(c). In 2010, the legislature created a more flexible

alternative to parental termination—guardianship under RCW 13.36.040. R.H., 176 Wn. App. at

423. Evidence of the availability of a guardianship is material to whether the State can meet its

burden to prove RCW 13.34.180(1)(f), but it is not necessary for the State to disprove the

availability of a guardianship placement. R.H., 176 Wn. App. at 428. While recent case law does

not appear to establish a requirement for parents to present evidence of a potential guardianship,




                                                28
No. 47783-1-II


due process requires that parents have the ability to present all relevant evidence for the juvenile

court to consider prior to terminating a parent’s rights; thus, presentation of evidence regarding a

potential guardianship or third party custodian would be considered by the juvenile court if raised.

See R.H., 176 Wn. App. at 429.

       Here, CH-K was in foster care for three years as of 2015. The termination trial was

continued five times between 2013 and 2015 to allow TK and IH to try to progress through the use

of state services. But the 2013 to 2015 service providers did not recommend that the parents even

receive unsupervised visits and reported that the parents regressed such that it would be years still

before CH-K could possibly be in their sole care. IH offers no compelling reasons why the

pretermination period should have been further extended beyond the statutory period in light of

this evidence.

       Additionally, the potential for guardianship placement or third party custody was never

established by either parent at or before trial by testimony or petition. DSHS was not required to

disprove the availability of a guardianship placement. R.H., 176 Wn. App. at 428. And IH makes

no argument why the juvenile court would have a similar obligation to disprove the availability of

a third party custodian. IH’s arguments that the State was required to pursue less restrictive means

than termination fails.

       We conclude that the juvenile court’s findings were supported by substantial evidence and

that constitutional due process was satisfied. K.R., 128 Wn.2d at 142.




                                                 29
No. 47783-1-II


        We affirm the juvenile court’s order terminating the parties’ parental rights to CH-K.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MAXA, J.




                                                30
