                                                               FILED
                                                           DECEMBER 14, 2017
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division Ill




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

In the Matter of the Welfare of              )         No. 34773-7-111
                                             )         (consolidated with
                                             )         No. 34774-5-111)
A.H.t                                        )
                                             )         UNPUBLISHED OPINION
                                             )

        LAWRENCE-BERREY, J. -Mr. H. and Ms. F. appeal the trial court's order

terminating their parental rights to A.H. We affirm.

                                         FACTS

        A.H. was born on October 26, 2014. Hospital workers placed a hold on A.H. after

concerns arose about the mother, Ms. F. Department of Social and Health Services

(DSHS) workers arrived and spoke with Ms. F. and Mr. H. They determined that Ms. F.

smoked marijuana while pregnant, was homeless, and had intellectual issues. They also




        t To protect the privacy interests of A.H., a minor, we use her and her parents'
initials throughout this opinion. General Order of Division III, In Re Changes to Case
Title (Wash. Ct. App. May 25, 2017),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_ orddisp&ordnumber=
2017 002&div=II1.
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


determined that Mr. H. was homeless, smoked marijuana daily, and exhibited controlling

behavior toward Ms. F.

       DSHS had been involved with Mr. H.'s previous children. Mr. H. admitted to

having a 1992 second degree assault conviction for breaking the legs of one of his infants.

Mr. H.'s criminal history also included arrests for domestic violence threats to kill,

domestic violence assaults involving two of his former girlfriends, and violating no-

contact orders.

       On October 29, 2014, DSHS filed a petition for dependency. A shelter care

hearing took place the same day. The court entered out of home placement for A.H., and

the parents agreed to begin services in exchange for visitation rights. Ms. F. agreed to a

neuropsychological evaluation and SafeCare. SafeCare is a project designed to show the

parents how to raise their child successfully. Mr. H. agreed to random drug testing and

SafeCare.

       On January 16, 2015, Mr. H. and Ms. F. agreed to dependency and dispositional

orders. The court ordered A.H. to remain in out-of-home placement. The court ordered

Mr. H. to complete random drug screening and to obtain negative test results, a parenting

assessment to determine what services are necessary, a chemical dependency evaluation

and to follow any recommended treatment therefrom, a domestic violence assessment,


                                             2
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


and to demonstrate the ability to meet A.H.' s needs. The court ordered Ms. F. to

complete a neuropsychological evaluation and to follow any recommendations therefrom,

and to complete a parenting assessment to determine what services were necessary. The

services are addressed in turn rather than chronologically.

       Mr. H 's failure to reduce his dependency on marijuana

       DSHS scheduled Mr. H. for 30 random drug tests during the dependency

proceeding. He did not show for 13 of the 30 tests. For the other 17 tests, once he did

not submit to testing, and 14 of the remaining 16 tests he tested positive for marijuana.

The two other tests did not test for marijuana. Mr. H. admitted to smoking marijuana at

least three times per day and was not interested in reducing his use. Mr. H. asserts he

began using marijuana recreationally in 1999, but in 2008 started using it for medicinal

purposes to treat pain. Mr. H. never received a prescription for medical marijuana and

refused to consider other medical alternatives.

       Mr. H. participated in a chemical dependency assessment with Iris Aleman in

February 2015. The assessment revealed that Mr. H. was dependent on nicotine and

cannabis. For cannabis, dependency was evidenced by increased tolerance, inability to

cut dosages, multiple failed attempts at reducing usage, daily use, negative consequences

on other life activities such as social or occupational activities, and continued use despite



                                              3
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H.


negative consequences on health. Ms. Aleman recommended intensive inpatient

treatment, but Mr. H. disagreed and said he would seek a different assessment to get a

different recommendation. Mr. H. did not engage in inpatient treatment for his chemical

dependencies.

      Mr. H. completed a second chemical dependency treatment with Kathleen

Pajimola on November 30, 2015. This assessment recommended intensive outpatient

treatment for Mr. H. to address his dependencies. Mr. H. stated he was willing to treat his

dependency to get his daughter back. The outpatient treatment required attendance at.

three sessions per week, but Mr. H.'s attendance requirements were lowered to one

session per week. Mr. H. was eventually discharged for lack of attendance, after having

attended only four sessions. Ms. Pajimola addressed these problems with him and he

revealed he did not believe there was a problem because marijuana was legal.

      Mr. H 's noncompliance with domestic violence counseling and slow progression
      with mental health counseling

      Mr. H. completed a domestic violence assessment on April 14, 2015. The

assessment rated Mr. H. as low risk for domestic violence and many other categories, but

as a medium risk for truthfulness. Nonetheless, the assessment recommended one year of

domestic violence treatment, to begin June 27, 2015. He missed that session and all

sessions in July. He missed three sessions in August and attended three or four sessions

                                            4
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


each month until December. Except for February 2016, he did not meet the minimal

attendance requirements for any month. He was discharged on June 1, 2016, for

noncompliance, having not attended a session since April 16, 2016.

       Mr. H. also received mental health services from Steven Erickson, starting

September 10, 2015. Mr. Erickson identified anger management and impulse control as

mental health issues. Mr. H. fully engaged in this program and had stellar attendance

from the starting date until trial. Mr. H. had strong progress in the beginning of the

sessions, but began to regress. Mr. Erickson reported that Mr. H. was aware that he

needed to control his tendencies to display his frustration openly, Mr. Erickson identified

that Mr. H. was evicted in part because of these issues. Mr. Erickson was optimistic

about Mr. H.'s relationship with A.H., and Mr. H.'s ability to benefit from further

treatment. Based on Mr. H.'s pattern of progress and regression, Mr. Erickson estimated

it would take four to five months of treatment from the time of trial to make satisfactory

progress.

      Ms. F. 's neuropsychological assessment and general failure to attend mental
      health counseling appointments

       Ms. F. completed a neuropsychological assessment with Dr. Scott Mabee in July

2015, after missing scheduled assessments in March and June. Dr. Mabee attempted to

identify emotional and cognitive capabilities with his testing. He identified concerns with

                                             5
 No. 34773-7-111; No. 34774-5-111
 In re Welfare ofA.H


 depression, immaturity, and "borderline intellectual functioning." Report of Proceedings

 (RP) at 430. At trial, Dr. Mabee clarified that Ms. F.'s intellectual functions were "above

 the area that we talk about in terms of intellectual disability but it's below the average

 level." RP at 430. He noted that Ms. F. had problems with communicating her thoughts

 through language, but also noted standard memory. In comparing her results to an

 intelligence test scale, he scored her at 80 for verbal language processing, and 89 for

 spatial ability to form concepts. He stated she could identify and process things visually

 much better than she could communicate her thoughts verbally. Tory Carl, an employee

 with the DSHS Developmental Disabilities Administration (DDA), determined that Ms.

 F. was not qualified for DDA services because she had no qualifying condition such as an

 intellectual disability.

        Amanda Clemons performed the first parenting assessment in February 2015 and

· referred Ms. F. for mental health treatment for concerns over her functioning and ability

 to identify support systems. For reasons not apparent in the record, she did not begin

 treatment until September of that year. Her treatment counselor, Gary Woods, reported

 that Ms. F. missed 12 of26 sessions, and arrived late for 2 others. Ms. F.'s last in-person

 treatment occurred in February 2016, and she had one phone contact in April 2016.




                                               6
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H.


       The parents 'failure to attend and progress with parenting services

       Mr. H. and Ms. F. started SafeCare services in November 2014. Mr. H. attended

only 3 of the 10 sessions. Ms. H. attended only 5 of the 10 sessions. The provider was

concerned about the parents' lack of attendance. These services were terminated in

January 2015 so the parents could follow the recommendations of a parenting assessment.

       The parenting assessment recommended services, including family therapy, as well

as an additional second assessment when A.H. was six months older. Ms. Clemons also

referred the parents to family therapy as a result of the first parenting assessment, to begin

in February 2015. The parents missed four sessions and were discharged from the

program. DSHS re-referred them on June 17, 2015, to Tim Hanson for more family

therapy. They were discharged from this second program for failure to engage. On

July 23, 2015, DSHS again referred them to family therapy. After one month of

attempted contact, they finally engaged with this service in September 2015.

       In November 2015, and because of their positive engagement with family therapy,

Mr. Hanson recommended the parents to attend weekly Promoting First Relationships

(PFR) services. After two weeks of PFR, the parents began arriving without the

necessary supplies such as milk, diapers, food, and wipes. They attributed the problems




                                              7
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


to either being late or forgetting. The parents stopped responding to feedback and were

transitioned back to family therapy in December 2015.

      On return to family therapy, the parents were detached and stopped making

progress. They were argumentative and defensive. They attended both of the December

2015 sessions. Mr. H. missed two January 2016 sessions and the therapist became

concerned about the parents' increasingly poor attendance and participation. Mr. H.

attended only one session in February 2016. Ms. F. missed two February 2016 sessions

and arrived alone without milk for a third. She claimed her roommate drank all of A.H.' s

milk. In March 2016, the parents began attending all sessions, but continued to arrive

without any supplies. One time, the parents brought a workout supplement, Muscle Milk,

in place of regular milk. Another time, they brought sugar water. The therapist stated he

thought these behaviors reflected parent-centered decision making instead of child-

centered decision making. The sessions had positives such as the parents' interactions

with A.H., but the therapist was continually concerned about attendance, engagement,

both parents missing A.H.'s cues, and Mr. H.'s confrontational and aggressive behavior.

The therapist doubted that the parents were able to nurture and care for A.H.

Nonetheless, Mr. Hanson again referred the parents to PFR, in addition to continued




                                            8
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


family therapy. In May 2016, the parents were discharged from family therapy for lack of

attendance and engagement.

       Ms. F.'s second referral for PFR went poorly. Ms. F. did not appear on time for

the first session on April 22, 2016, and, by the time she did arrive, it had already been

rescheduled. Ms. F. showed for the second session. Ms. F. did not show for any further

PFR sessions, and she was discharged. DSHS found another provider who was willing to

work with Ms. F., starting June 2, 2016. Ms. F. did not show for that appointment and

she was discharged. No further engagements with PFR occurred.

       The parents' poor attendance with out-of-home supervised visits, and inability to
       maintain condition of their own home

       The court order provided the parents supervised visitation with A.H. three times

per week, with each visit lasting two hours. From November 2014 to September 2015,

the visits took place at the Salvation Army. Ms. F. did not show for 49 of the 120 visits

during this time, and Mr. H. did not show for 54 of the 120 visits.

       Supervised visitation moved to the parents' home in September 2015, and

continued there until May 2016. Shanna Porter, the DSHS case manager supervising the

visits, noted that during these in-home visits, the parents frequently were unprepared and

had to leave to get supplies.




                                              9
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


       Initially, Ms. Porter was pleased with the home's appearance, and the parents

responded to concerns such as fixing smoke alarms and making electrical outlets safe.

However, the condition of the home began to deteriorate. The parents refused to allow

Ms. Porter to inspect portions of the home. Ms. Porter saw cat feces, animal vomit,

cigarette butts, and a dead mouse. In May 2016, the visits were moved because of the

continued deterioration of the home.

       Mr. H 's expressions ofanger and threats

       Mr. H. constantly expressed anger with Ms. Porter throughout the proceedings. He

called her stupid and a liar several times, and muttered threats that he would kill himself.

He sent several angry communications to her online.

       Ms. F. and Mr. H. had another child, C.H., in May 2016. DSHS removed C.H.

from his parents' care. Mr. H. was extremely upset and began making online threats to

Ms. Porter and her supervisor saying that he would come "first thing in the morning." RP

at 680. The next day he went to DSHS offices, visibly outraged and screaming. Shortly

after, he returned and Ms. Porter heard him screaming 50 feet away and through the

building's glass walls. Mr. H. 's unidentified companion threatened physical harm to

DSHS staff. DSHS summoned police, and police advised Mr. H. that he no longer was

permitted on DSHS property.



                                             10
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


         Mr. H. and Ms. F. were evicted from their home on May 31, 2016. The reasons

they were evicted included Mr. H.'s continued marijuana use, the presence of four cats in

the house without the landlord's permission, and Mr. H.'s anger issues.

         The trial began June 28, 2016. During the 17 months between the shelter care

hearing and the trial, Mr. H. and Ms. F. lacked housing during only the initial and the last

month.     During trial, the court made a record of the multiple times the parents were late

returning from recess because they were smoking. At the conclusion, the trial court

announced its decision to terminate Mr. H.'s and Ms. F.'s parental rights to A.H. During

the trial court's oral decision, Mr. H. left the courtroom.

         Mr. H. and Ms. F. appealed.

                                         ANALYSIS

         Mr. H. argues there was insufficient evidence to support the trial court's findings

that certain ordered services were offered or provided, that there was little likelihood that

conditions could be remedied so that A.H. could be returned to him in the near future, that

he was currently unfit to parent A.H., and that termination was in A.H.' s best interest.

         Ms. F. argues that DSHS's burden of proof must be viewed through the lens of the

Americans with Disabilities Act of 1990 (ADA),§§ 12101-12213. She also argues there

was insufficient evidence to support the trial court's findings that certain ordered services



                                               11
 No. 34773-7-111; No. 34774-5-111
 In re Welfare ofA.H


 were offered or provided, and that there was little likelihood that conditions could be

 remedied so that A.H. could be returned to her in the near future.

        A.     STANDARD OF REVIEW


        All but two of the issues raised by the parents involve whether substantial evidence

 supports the trial court's findings under RCW 13.34.180(1). This court must affirm

 findings of fact under RCW 13 .34 .180( 1) if substantial evidence from which a rational

 trier of fact could find the necessary facts by clear, cogent, and convincing evidence

 supports the findings. In re Dependency ofK.S.C., 137 Wn.2d 918,925,976 P.2d 113

 (1999). Evidence is substantial if it is sufficient to persuade a fair-minded person of the

 truth of the matter asserted. In re Welfare ofS.J., 162 Wn. App. 873,881,256 P.3d 470

 (2011 ). Clear, cogent, and convincing evidence exists when the ultimate fact at issue is

· "highly probable." K.S.C., 137 Wn.2d at 925. Unchallenged findings are verities on

 appeal. In re Interest ofMahaney, 146 Wn.2d 878,895, 51 P.3d 776 (2002).

        Because the trial court hears the testimony and observes the witnesses, it is entitled

 to deference concerning credibility of witnesses or weight of the evidence. In re Welfare

 ofL.NB.-L., 157 Wn. App. 215,243,237 P.3d 944 (2010). If a trial court has resolved

 conflicting evidence, this court will not substitute its judgment for that of the trial court,

 even if this court would have resolved a factual dispute differently. Mairs v. Dep 't of



                                                12
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993). The party claiming error has the

burden of showing that a finding of fact is not supported by substantial evidence. Fisher

Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).

       B.     GENERAL PROOF REQUIRIMENTS FOR TERMINA TICN PROCEEDINGS


       Parents have a fundamental liberty interest in the care, custody, and

companionship of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 71 L. Ed. 2d 599 (1982). Therefore, the State may interfere with parents' rights

"' only for the most powerful [of] reasons.'" S.J, 162 Wn. App. at 880 (internal

quotation marks omitted) (alteration in original) (quoting In re Welfare ofA.JR., 78 Wn.

App. 222,229, 896 P.2d 1298 (1995)). When the parental actions may cause harm or a

risk of harm to the child, the State has a right and responsibility to protect the child. In re

Custody ofSmith, 137 Wn.2d 1, 18, 969 P.2d 21 (1998). Therefore, "reunification must

be balanced against the child's right to basic nurture, physical and mental health, and

safety; ultimately, the child's rights and safety should prevail." In re Welfare ofA.G., 155

Wn. App. 578, 589, 229 P.3d 935 (2010), vacated on other grounds on remand, 160 Wn.

App. 841,248 P.3d 611 (2011).

       Washington courts use a two-step process to determine whether to terminate

parental rights. RCW 13.34.180(1); In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d



                                              13
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


1104 (2010). The first step focuses on the adequacy of the parents and requires the State

to prove the six statutory elements ofRCW 13.34.180(1) by clear, cogent, and convincing

evidence. RCW 13.34.190(l)(a); A.B., 168 Wn.2d at 911. The six statutory elements

required by the first step are:

               (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 reasonable 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. A parent's
       failure to substantially improve parental deficiencies within twelve months
       following entry of the dispositional order shall give rise to a rebuttable
       presumption that there is little likelihood that conditions will be remedied
       so that the child can be returned to the parent in the near future ....
               (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). The second step asks whether termination is in the best interests of

the child. RCW 13.34.190(l)(b); A.B., 168 Wn.2d at 925.

       C.      SPECIFIC ISSUES RAISED BY THE PARENTS




                                              14
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


              1.     RCW 13.34.180(1)(d): Services ordered were expressly and
                     understandably offered or provided

       Mr. H. and Ms. F. contest the trial court's finding that DSHS offered or provided

all court-ordered services.

       To meet its burden under RCW 13.34.I80(1)(d), DSHS must show it offered or

provided the required services and the parent either failed to engage or waived their right

to such services. In re Welfare ofS. VB., 75 Wn. App. 762, 770, 880 P.2d 80 (1994). The

services offered or provided must be tailored to the individual parent's needs. In re

Dependency of TR., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). A parent's

unwillingness or inability to avail himself or herself of remedial services within a

reasonable period is highly relevant to a court's determination of whether the elements of

RCW 13.34.180 are established. In re Dependency of CT, 59 Wn. App. 490,499, 798

P.2d 1170 (1990). A service is necessary if it is "needed to address a condition that

precludes reunification of the parent and child." In re Parental Rights to I.M-M, 196

Wn. App. 914, 921, 385 P.3d 268 (2016).

                     a.       Ms. F. failed to assert her ADA argument to the trial court, so
                              we will not review it on appeal

       As an initial matter, Ms. F. contends that the ADA increases the burden on DSHS

to tailor required services to her needs. Ms. F. cites several out-of-state jurisdictions for


                                              15
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


the conclusion that compliance with the ADA is relevant to this court's determination of

whether DSHS appropriately offered or provided court-ordered services. See State ex rel.

KC. v. State, 2015 UT 92,362 P.3d 1248, 1252; People in Interest ofC.Z., 2015 COA

87, 360 P.3d 228,233. The State does not respond to this argument.

       Ms. F. did not assert her ADA argument to the trial court. Her failure to assert the

argument to the trial court prevented the parties from developing a sufficient factual

record as to whether Ms. F. was disabled for purposes of the ADA and also prevented the

trial court from entering findings in this respect.

       In general, an appellate court may refuse to review a claim of error that was not

raised in the trial court. RAP 2.5(a). The general rule is subject to three exceptions. Ms.

F. does not argue that any exception applies. For the reasons discussed above, we decline

to review this undeveloped claim of error.

                      b.     Court-ordered services were offered or provided to Ms. F.

       The trial court ordered DSHS to provide the following services to Ms. F. so that

her parental deficiencies could be remedied: a neuropsychological evaluation, individual

counseling, family therapy, Project SafeCare parenting instruction, PFR parenting

instruction, and two parenting assessments. Specifically, Ms. F. contests the finding that




                                              16
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


DSHS sufficiently provided the PFR service to her. She argues the PFR service was not

tailored to her learning limitations and that it was offered too late. We disagree.

       Substantial evidence contradicts Ms. F.'s argument. Mr. Hanson was the PFR

provider, and his testimony supports the finding. Mr. Hanson was aware of Ms. F.'s

intellectual limitations, although he did not have the psychological report created by Dr.

Mabee. Mr. Hanson considered Ms. F.'s limitations, and modeled skills and used

repetition to account for her learning ability. Mr. Hanson also as part of all sessions

offered "additional education based on observable behavior in that session." RP at 150.

       PFR first began with two sessions in November 2015. Providers recommended

PFR because although initial family therapy was positive, Ms. F. was having trouble

recognizing A.H. 's cues. The first PFR session went well. Within two weeks, however,

Ms. F. and Mr. H. began arriving without necessary supplies, including milk, diapers,

food and wipes because they "forgot or were running late." RP at 158. Mr. Hanson

talked about the necessity of having the appropriate supplies, and the parents were not

receptive to his feedback. Because of the lack of engagement, the parents were placed

back into family therapy.

       Back in family therapy, Ms. F. and Mr. H. were detached, less responsive to

feedback, argumentative, and defensive. They continued to arrive without necessary



                                             17
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H.


supplies. Both parents began to frequently arrive late or not attend at all. Ms. F. attended

only two scheduled sessions in February 2016, and in one of those sessions, did not bring

any supplies.

      Ms. F.'s engagement and attendance increased in March, but she still did not bring

adequate supplies. She explained the deficiency as her roommates were drinking her

milk. One time she brought a workout supplement instead of milk and another time she

brought sugar water. Mr. Hanson questioned whether she was making child-centered

decision making.

      PFR began again at this point, and Ms. F. was referred to Ashley Suter for her new

sessions. Ms. F. arrived over 15 minutes late for the first session on April 22, 2016, so

that session was rescheduled to April 29, 2016. Ms. F. did not show for the next session

on May 6, 2016. She was discharged from PFR at this point for noncompliance. At the

request of Ms. F.'s attorney, Ms. Suter contacted her to reschedule, but Ms. F. could not

work out a date and time that would work for her. Ms. F. was again discharged on

May 13, 2016.

       Despite being twice discharged for noncompliance with PFR, Ms. Porter referred

Ms. F. for further PFR. Ms. F. was scheduled for intake on June 2, 2016, but again did

not attend. By June 13, 2016, the PFR counselor still had not been able to communicate



                                             18
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


with Ms. F. By the time of trial, Ms. F. had made no further attempts to engage with PFR

services.

       All indications from the record show PFR was reasonably tailored to Ms. F.'s

abilities during the first referral. She was discharged from the program for lack of

engagement and lack of attendance. She was further discharged from every other PFR

referral because of further lack of attendance. The trial court found she was reasonably

offered this service in a tailored fashion, and substantial evidence supports this finding.

                      c.    Court-ordered services were offered or provided to Mr. H

       Mr. H. contends that DSHS never offered him any housing assistance, and housing

assistance was necessary because it was the primary parental deficiency preventing

reunification. "[A] juvenile court hearing a dependency proceeding has authority to order

DSHS to provide the family with some form of assistance in securing adequate housing in

those cases where homelessness or lack of safe and adequate housing is the primary

reason for the foster placement or the primary reason for its continuation." Wash. State

Coalition/or the Homeless v. Dep't ofSoc. & Health Servs., 133 Wn.2d 894,924,949

P.2d 1291 (1997). But we disagree that the rule stated above applies here.

       First, the trial court never identified homelessness as a primary parental deficiency.

The trial court identified Mr. H.'s parental deficiencies as the cumulative effect of,



                                              19
I
    No. 34773-7-111; No. 34774-5-111
    In re Welfare ofA.H


    "chemical dependency issues, parenting issues, domestic violence issues, and the inability

    to meet the child's physical, emotional, and psychological needs." Clerk's Papers (CP) at

    141.

           Second, the record indicates that homelessness was not the basis for termination of

    Mr. H.'s parental rights. The basis for termination of Mr. H.'s parental rights included

    his untreated marijuana addiction and his inability to control his anger. Mr. H. and Ms. F.

    received housing assistance and used it to pay rent. The ability to afford housing was not

    at issue. They were evicted near the time of the termination trial because they violated

    their lease agreement that prohibited cats and because of Mr. H.'s ongoing marijuana use

    and his anger issues.

           Mr. H. also argues that he needed housing assistance because he could not provide

    a safe home for A.H. The record does not support his argument. Ms. Porter was initially

    pleased with the house during her visits and the actions Mr. H. took to fix her safe

    housing concerns. She testified that the housing situation significantly deteriorated

    during subsequent walkthroughs. Mr. H. and Ms. F. began barring her from various

    rooms in the home. Nonetheless, Ms. Porter could see and smell extensive animal urine

    and animal vomit from the portions of the home the parents permitted her to see.




                                                20
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


       We conclude the evidence does not support Mr. H.'s contention that homelessness

was a primary parental deficiency. We further conclude that the causes of Mr. H. 's

homelessness near the time of the termination trial were nonfinancial causes, wholly

within his and Ms. F. 's control.

              2.     RCW 13.34. l BO(l)(e): Likelihood that conditions will be remedied

       Ms. F. argues that DSHS failed to prove there was little likelihood that conditions

would be remedied so that A.H. could be returned to her in the near future. We disagree.

       DSHS must prove "[t]hat there is little likelihood that conditions will be remedied

so that the child can be returned to the parent in the near future." RCW 13.34.180(1)(e).

The focus of this element is whether the identified deficiencies have been corrected. In re

Welfare ofMR.H., 145 Wn. App. 10, 27, 188 P.3d 510 (2008). If the parent is unable to

resolve his or her deficiencies within 12 months after the child has been declared

dependent, the statute provides a rebuttable presumption that there is little likelihood that

conditions will change, and the burden of production shifts to the parent. In re Welfare of

T.B., 150 Wn. App. 599,608,209 P.3d 497 (2009). DSHS must still prove it is highly

probable that the parent would not improve in the near future. Id.

       "A parent's unwillingness to avail herself of remedial services within a reasonable

period is highly relevantto a trial court's determination as to whether [the Department]



                                             21
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


has satisfied RCW 13.34.180(1)(e)." Id. Even if some evidence suggests that the parent

may eventually be capable of correcting his or her deficiencies, termination is still

appropriate where the deficiencies will not be corrected within the foreseeable future.

A.G., 155 Wn. App. at 590. The foreseeable future must be determined from the child's

point of view. In re Dependency ofP.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990).

       Ms. F. does not assign error to the trial court's findings of fact IV or VIII, which

are therefore verities on appeal. Finding of fact IV states that A.H. was found dependent

on January 16, 2015, as to both parents. Finding of fact VIII states that the parents have

displayed an inability to change throughout the dependency, A.H. has been removed from

her parents for her entire two-year life, an adoptive home has been found, and only the

dependency proceeding was a barrier to that adoption. Because these findings establish

that Ms. F. had not been able to remedy her parental deficiencies within 12 months of the

dependency, the statutory presumption against the parent applies.

       Ms. F. claims the record supports the idea that she might be able to remedy the

conditions that led to the dependency. We disagree. Her argument is both contrary to the

record and the trial court's findings. Moreover, once the statutory presumption against

the parent applies, Ms. F. must establish that she could remedy the conditions in the near




                                             22
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


future, as measured by the child's perspective. Here, neither the record nor the trial

court's finding supports this.

       Ms. F.' s lack of engagement with services was a major theme throughout the

termination proceeding. She frequently was not prepared, arrived late, or missed

appointments. Ms. F. was constantly re-referred to services as a result of her lack of

engagement. Even during trial, Ms. F. and Mr. H. were repeatedly late returning from

trial recesses because they were smoking outside.

       We conclude that substantial evidence supports the trial court's finding that there

was little likelihood that conditions would be remedied in the near future so that A.H.

could be returned to Ms. F.

              3.     Parental unfitness ofMr. H.

       Mr. H. argues DSHS failed to sufficiently establish that he is currently unfit to

parent A.H. We disagree.

       Due process requires the trial court to explicitly or implicitly find by clear, cogent,

and convincing evidence that the parent is currently unfit. A.B., 168 Wn.2d at 918-19. A

trial court cannot terminate a parent's rights absent this finding of unfitness. Id. at 918.

Parental deficiencies alone do not render a parent currently unfit, "[t]he proper inquiry is

whether the existing parental deficiencies, or other conditions, prevent the parent from



                                              23
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


providing for the child's basic health, welfare, and safety." In re Parental Rights to

K.MM, 186 Wn.2d 466, 493, 379 P.3d 75 (2016). Here, the trial court made the

following finding relating to the challenged issue, a finding we review for substantial

evidence:

              Mr. [H.] is currently unfit in that the parental deficiencies set forth
       herein render the parent unable to safely parent the child. Mr. [H. 's]
       parental deficiencies include chemical dependency issues, parenting issues,
       domestic violence issues, and the inability to meet the child's physical,
       emotional, and psychological needs.

              It is the cumulative effect of all the deficiencies identified that make
       the parent's [sic] currently unfit to parent.
              The parents are barely able to take care of themselves ....

CP at 141. Mr. H. specifically contests the trial court's findings that his drug use and

domestic violence issues are parental deficiencies that render him unfit to parent.

                     a.      Mr. H 's chemical dependency

       Mr. H. argues that his marijuana use does not interfere with his parenting ability

and that he uses marijuana to reduce pain. We disagree. The record supports the trial

court's finding that this deficiency contributed to his lack of fitness.

       Ms. Aleman provided a chemical dependency evaluation for Mr. H. The

evaluation showed that Mr. H. was dependent on nicotine and cannabis. His cannabis use

was increasing because of his growing tolerance. Mr. H. could not reduce his usage



                                              24
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


amounts when he tried. He smoked daily. Another provider stated that Mr. H. had no

interest in stopping his marijuana use and did not recognize the negative consequences of

use, and that marijuana use had once cost Mr. H. his job. As discussed above, marijuana

use contributed to at least one instance of homelessness.

       The trial court heard testimony that people can become dependent even on legal

substances. The trial court heard testimony marijuana use affects attention and influences

ability to attend services. The trial court directly asked Dr. Mabee a number of questions

about the use of marijuana on the body. Dr. Mabee testified marijuana affected

neurological functions, including the abilities to multi-task, stay organized, and manage

learning. Usage affects attention and concentration, which also implicates memory.

Chronic usage enhances these impairments and deficits. Dr. Mabee concluded that

marijuana use affected parenting skills: "[C]annabis's effect on concentration, attention,

being able certainly to multi-task gets impaired, the ability to make another individual's

needs a priority, all of those can be affected by chronic use." RP at 456.

       The record also shows that Mr. H. is committed to his marijuana dependency. Mr.

H. first began using marijuana recreationally in 1999 but began using it to medicate pain

in 2008. He testified that he does not have a medical marijuana prescription and has no

interest in medical alternatives. He uses marijuana at least three times per day, and his



                                            25
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


urinalysis results have shown the same consistent use for the entirety of the dependency

process. During his testimony, the following exchange took place:

       [Counsel:] lf--if a court determined that you needed to stop using
       marijuana to safely parent [A.H.], would you do it?
       [Mr. H.:]     I'd appeal it.
       [Counsel:] You'd appeal it?
       [Mr. H.:]     Uh-huh.
       [Counsel:] You would appeal the court's decision?
       [Mr. H.:]     Yes, I would.

RP at 414. Mr. H. regularly missed meetings, was late to meetings, and had trouble

putting A.H.' s needs before his own interests, all negative consequences associated with

marijuana use, as testified to in the record. We conclude that the record supports the trial

court's finding that marijuana use contributed to Mr. H.'s parental fitness.

                     b.     Mr. H. 's domestic violence and threatening behavior

      Mr. H. attempts to explain the reasonableness of certain episodes of domestic

violence and threatening behaviors. Minimizing these problems, he argues that the trial

court's finding that domestic violence contributed to his parental unfitness is not

supported by substantial evidence. We disagree.

      Mr. H. has a lengthy history of domestic violence. He was convicted of second

degree assault for breaking the legs of an infant child of his. Courts had issued protective

orders against him for the purpose of protecting his past girlfriends. Mr. H. had even


                                             26
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


violated one or more of those orders. The trial court also heard testimony that Mr. H.

self-reported yelling at, shouting at, and controlling the money of his partners.

       In addition, Mr. H.' s propensity toward domestic violence is supported by

evidence of his aggressive and confrontational nature. Mr. H. threated A.H.'s foster

parents after a session with A.H. He sent threatening communications to Ms. Porter. He

sent threatening communications to DSHS after another child was removed and showed

up at DSHS the next day, screaming so loud from outside the building that he could be

heard inside. In addition, he posted threats to others on Facebook, vowing revenge.

       Mr. Erickson provided individual counseling to Mr. H. He identified anger

management and impulse control as part of Mr. H.'s mental health issues. Mr. Erickson

noted that Mr. H. would become aggressive when he felt defensive, such as when

interacting with DSHS. Mr. Erickson noted these issues contributed to Mr. H.'s recent

eviction.

       We conclude that substantial evidence supports the trial court's finding that Mr.

H.' s history of domestic violence is a factor that contributed to his parental unfitness.

              4.     RCW 13.34.190(J)(b): Termination is in the best interests ofA.H




                                              27
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H


       Finally, both Mr. H. and Ms. F. challenge the trial court's finding that termination

is in the best interests of A.H. They additionally contend that the finding was premature.

We disagree.

       Mr. H. minimally cites to the record to show that he and A.H. had begun to bond.

He offers no other argument and does not explain why this court should substitute its

judgment for that of the trial court. Here, the trial court entered the following uncontested

finding: "Continuation of the parent-child relationship diminishes the child's prospects

for early integration into a permanent and stable home. . . . A permanent, adoptive home

has been identified for the child, and the only barrier to adoption is parental rights." CP

at 142. The trial court also explicitly gave weight in its findings to the court appointed

special advocate's testimony that termination was in the best interests of A.H. We reject

Mr. H.'s argument because we do not reweigh conflicting evidence.

       As mentioned earlier, termination of parental rights is a two-step process. A.B.,

168 Wn.2d at 925. The trial court must always consider the first step-alleged unfitness

of the parent as outlined by RCW 13.34.180-before moving to the second step, which

focuses on the child's best interests. Id.

       Mr. H. and Ms. F. both argue that the trial court was premature in determining

termination was in the best interests of A.H. They argue the trial court's findings



                                             28
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H


pertaining to RCW 13 .34 .180( 1) were erroneous, and for this reason, the trial court never

properly considered the first step before progressing to the second. In other words, their

argument on this issue depends on this court deciding the previous issues in their favor.

Because we determined those issues unfavorably to the parents, their argument here must

also fail. We conclude that the trial court did not prematurely consider A.H.' s best

interests.

       Affirmed.

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

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

RCW 2.06.040.




WE CONCUR:




Fearing,     c.JY                         Pennell, J.




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