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

In the Matter of the Dependency of              No. 74911-1-1
C.L.M., DOB: 03/15/2010, and                    (Consolidated with Nos. 74912-9-1,
C.M., DOB: 01/23/2006,                          74913-7-1, 74914-5-1)                          c:
                                                                                             (pc)
                       Minor children.                                                       rrl
                                                                                    720      CD
                                                                                              -11    ri
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND                                                                      7c
                                                                                               , -0ill
                                                                                                 rrl
HEALTH SERVICES,                                                                     --er•
                                                                                              =
                                                UNPUBLISHED OPINION                            2.4
                       Respondent,
                                                                                       CJI

             V.

LATAE MARIA MITCHELL and
KENNETH LAVELLE MADDEN, SR.,

                       Appellants.              FILED: March 13, 2017

      SCHINDLER, J. — Following a 13-day trial, the court terminated the parental rights

of Latae Maria Mitchell and Kenneth Lavelle Madden Sr. to their two children and

denied the petition to establish a guardianship. Mitchell challenges findings and

conclusions supporting the denial of the guardianship petition but does not challenge

the termination. Madden challenges findings and conclusions supporting the

termination of his rights and denial of the guardianship. We affirm.
No. 74911-1-1/2 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

Agreed Dependency

       Mitchell and Madden are the biological parents of C.M., born in 2006, and

C.L.M., born in 2010.

       In 2011, Mitchell and Madden and the Washington State Department of Social

and Health Services(DSHS)entered agreed orders of dependency. The agreed facts

describe the children's exposure to domestic violence, Madden's long-standing

substance abuse and mental health issues, physical abuse of the children by Mitchell

and Madden, and the significant criminal records of Mitchell and Madden. Madden had

recent diagnoses for major depression, polysubstance dependency, personality disorder

with antisocial and paranoid traits, and borderline intellectual functioning. Madden's

criminal record includes convictions for domestic violence property destruction and

domestic violence interfering with reporting in 2009, criminal solicitation of a controlled

substance in 2008, driving while license suspended in 2007, driving under the influence

in 2005, and multiple violations of the Uniform Controlled Substances Act.1 Mitchell's

criminal record includes convictions for felony assault and forgery in 2009 and a 1997

misdemeanor assault that was deferred and dismissed.

       The dependency orders required Mitchell and Madden to complete a drug and

alcohol evaluation and any recommended treatment, urinalysis (UA), a psychological

evaluation with a parenting component and any recommended treatment, intensive

family preservation services (IFPS), and comply with probation requirements.

       Less than a week after entry of the dependency orders in 2011, Mitchell

assaulted a laundromat manager. Mitchell pleaded guilty to the felony assault.



       1 Chapter 69.50 RCW.


                                             2
No. 74911-1-1/3(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

       After completing the confinement portion of her sentence, Mitchell obtained a

psychological evaluation in 2012. The evaluator diagnosed Mitchell with intermittent

explosive disorder, attention deficit hyperactivity disorder(ADHD), and personality

disorder with narcissistic traits. The evaluation states Mitchell was "defensive,

externalized blame rather than accepting responsibility, lacked empathy for others, and

had a propensity to be controlling in relationships." Mitchell also "displayed multiple

incidents of violence grossly disproportionate to the triggering events." The evaluator

states that "these issues" made it difficult for Mitchell "to respond to the needs of her

children." The evaluator believed Mitchell's "serious psychological problems" would be

"very difficult to treat" and would need to be resolved before she could safely parent her

children.

       The evaluator recommended numerous services including anger management

classes, domestic violence counseling, mental health counseling, and one-on-one

parent training. Despite 36 parent coaching sessions that included anger management,

Mitchell did not "adequately absorb and implement the lessons," "remained

unempathetic to the children," and continued to "put her needs ahead of theirs."

       Mitchell also participated in domestic violence and mental health counseling. A

domestic violence evaluation showed Mitchell had a "very high propensity for violence

under provocation." The evaluator developed a treatment plan that included domestic

violence treatment, anger management education, and mental health counseling.

Mitchell's participation in the treatment plan was "inconsistent" and "she was eventually

terminated from the program." In 2015, Mitchell again engaged in domestic violence




                                             3
No. 74911-1-1/4(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

treatment but did not complete the program and did not participate in mental health

counseling.

        The dependency order required Madden to engage in several services including

a "Psychological Evaluation with Parenting Component and Follow through with any

Treatment Recommended." Shortly thereafter, Madden obtained a psychiatric

evaluation at Atlantic Street Center.2 The evaluator diagnosed him with ADHD,

depression, and anxiety and prescribed ADHD medication and continuing therapy.

        In November 2011, a permanency planning order noted the court-ordered

psychological evaluation had not yet occurred because an "[a]greed provider" was "not

available." But the order noted Madden "completed a psychiatric evaluation at Atlantic

Street [C]enter," was in mental health counseling, and on medication management. An

April 2012 review hearing order stated essentially the same thing but added DSHS

recommended the "psychological evaluation . . . service order be removed."

        Six months later, the court stated in a permanency planning order that the

psychological evaluation service was "N/A"(not applicable):

        N/A[.] Father not referred[.] Father completed a psychiatric and
        medication management evaluation through Atlantic Street Clinic and has
        a primary diagnosis of ADHD, mixed type[.] This is being successfully
        treated through therapy and medication management[.] [DSHS]
        recommends removing this ordered service.

        In April 2013, a dependency review order stated the psychological evaluation

was "fd]eferred until father has 90 days of clean UAs and medication compliance."3



        2 The record is unclear as to whether DSHS provided this service or Madden obtained it on his
own. In any event, a court may consider any service received for the correction of parental deficiencies
regardless of whether the State provides or arranges for the service. In re Dependency of D.A., 124 Wn.
App. 644, 651-52, 102 P.3d 847(2004).
        3 Emphasis in original.



                                                   4
No. 74911-1-1/5(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

The order stated Madden had "multiple missed appointments and poor follow through

with counseling and medication compliance." Subsequent orders stated Madden had

"completed a mental health intake with [Sound Mental Health)" in June 2014 but he had

not engaged in ongoing services, participated in visitation, or complied with UA testing.

Termination and Guardianship Trial

       DSHS filed a petition to terminate the parental rights of Mitchell and Madden.

Mitchell filed a petition to establish a guardianship with the children's maternal aunt and

her husband, Misty and Lorenzo Merida. Madden joined in the petition. The court held

a 13-day trial on the petition to terminate and the guardianship petition.

       Social worker Janice Strong was assigned to the case from 2011 to 2014.

Strong testified the children were removed from Madden's care on three occasions due

to his substance abuse. DSHS repeatedly referred Madden to IFPS and mental health

counseling. IFPS assisted Madden "in resolving barriers to attending his mental health

services." In particular, IFPS assisted Madden in developing a plan for taking his ADHD

medication so that he would not forget his appointments. Madden, however, did not

consistently take his medication or consistently participate in mental health counseling.

       Strong testified that while Madden did not receive the court-ordered

psychological evaluation with a parenting component, the service became unnecessary.

Strong testified Madden received the services through the psychiatric evaluation, mental

health counseling, and IFPS including parenting instruction and the "Homebuilders"

program.

       Child Welfare and Family Services social worker Sophie Keefe-Bullock testified

she was assigned to the case in early 2014. Madden was not actively engaged in




                                             5
No. 74911-1-1/6 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

services at that time. Keefe-Bullock referred Madden for mental health services and

urged him to "reengage in mental health and chemical dependency" services. At one

point, Madden did "go back to complete both the mental health evaluation and the

chemical dependency evaluation." Keefe-Bullock did not order a psychological

evaluation because Madden had obtained a psychiatric evaluation and successful

treatment with ADHD medication.

       Keefe-Bullock also testified Madden lost a visitation contract due to missed visits

that were often cancelled at the last minute. Keefe-Bullock then obtained a Friday

visitation contract for Madden but he did not consistently attend visits with the children.

The missed visits made C.M."very anxious" because "he didn't know if they were going

to be canceled or not." Keefe-Bullock testified Madden made no progress on his

parental deficiencies during the time she handled the case.

       Social worker Melissa Hoogendoorn testified Madden received mental health

services and chemical dependency treatment at Sound Mental Health. Hoogendoorn

did not refer Madden fora psychological evaluation with a parenting component

because the service had been deferred until he could maintain a length of sobriety.

Hoogendoorn saw no "red flags" that Madden had mental health issues other than those

he was "already working" on with Sound Mental Health. When asked if she knew that

Madden had been diagnosed with a depressive disorder, Hoogendoorn was unsure but

said, "[That would be something that !would think that he would be working on with his

therapist" at Sound Mental Health. Hoogendoorn conceded she never confirmed

whether Madden's therapist was treating his depression. When Hoogendoorn's work




                                             6
No. 74911-1-1/7(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

with Madden ended, he was "still using alcohol and marijuana and PCP"4 and "he was

not consistently engaged in his mental health treatment."

       Social worker Kristin Mayer worked with Madden in 2015. Mayer testified

Madden "had been engaged with Sound Mental Health for mental health, medication

management, and chemical dependency services, as well as UAs." But Madden did not

consistently take his ADHD medication. When Madden failed to take the medication,

"his mental health would spiral out of control." When asked if there were times when

Madden seemed to be making progress, Mayer said, "No; quite the opposite." Mayer

testified that Madden had "very poor impulse control" and "would escalate very often"

and "very quickly." Mayer stopped working with Madden after he physically threatened

her.

       Social worker Romeo Garcia testified that he took over for Mayer in July 2015.

Garcia was aware that Madden engaged in mental health services with Atlantic Street

Center and Sound Mental Health. Garcia and Madden discussed the need to re-

engage in mental health services and drug treatment. Despite Madden's strong interest

in those services, he did not follow through. When asked if there were any other

necessary mental health services "that haven't been ordered but could be provided,"

Garcia said,"[N]o, not at this time." When asked if there were "any issues that

[Madden] had that would not have adequately been addressed by the mental health and

drug and alcohol services that he was receiving," Garcia said,"No." Garcia did not

order the psychological evaluation because it had been deferred pending a period of

sobriety. .



       4   Phencyclidine, also known as "angel dust."


                                                    7
No. 74911-1-1/8 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

      Atlantic Street Center mental health therapist Al Davis III testified that he treated

Madden for approximately one year. Madden's attendance at sessions declined over

time and he eventually lost his insurance coverage. Davis told Madden that Atlantic

Street Center could help him regain his coverage but Madden did not request

assistance. Davis testified that Madden was receiving all the treatment he needed at

Atlantic Street Center and that he would have referred Madden for additional services if

he felt Madden needed them.

      Sound Mental Health chemical dependency and mental health counselor Amy

Plumb treated Madden for substance abuse in a group setting in 2012 and 2013.

Starting in October 2014, Plumb treated Madden concurrently for substance abuse and

mental health issues in both a group setting and individual sessions. During their

sessions, they talked about his depression. Plumb did not recommend additional

services. Plumb testified she would have referred Madden for additional services if she

had seen any signs that he needed them. Although Madden had appointments every

two weeks, he met with Plumb only about once a month. In March and April 2015,

Madden's UAs were positive for PCP and marijuana. Madden then missed a series of

appointments with Plumb.

      DSHS Children's Administration Division of Licensed Resources social worker

and home studies specialist Cynthia Hostetler conducted a home study with the

Meridas. The Meridas have two adult children. One child has Asperger's syndrome

and obsessive-compulsive disorder.

       Hostetler concluded a guardianship would not be in the children's best interests

because the Meridas lacked the experience and skills necessary to care for C.M. and




                                            8
No. 74911-1-1/9 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

C.L.M. "given the severity of their special needs." Hostetler's report noted C.M. was

diagnosed with post-traumatic stress disorder(PTSD)and ADHD and engaged in self-

harming or suicidal behaviors, including putting a belt so tightly around his neck that it

bruised him and scraping his wrists with knives and cork screws. C.M. sometimes

screams for hours or runs away when things do not go his way. C.L.M. also has PTSD

and exhibits "challenging behaviors including running away, hitting, kicking and

punching her caregivers and younger children." The report states C.L.M. pulled her

pants down in public and invited another child to put his face on her bottom. The report

states the children can be physically aggressive toward each other and prior attempts to

place them together "in very skilled foster homes" failed.

       The report cautioned that the children "require consistent supervision, clear

communication from their caregivers and caregivers that are able to meet their needs

and address their behaviors immediately." Hostetler concluded the Meridas do not have

the "experience with parenting children with self-harming behaviors, running behaviors,

screaming for hours, and inappropriate invitations towards other children of a perceived

sexual nature." Hostetler states these deficiencies are compounded by Mr. Merida's

"very, very minimal" parenting experience. Hostetler states that while the Meridas'

experience with their own special-needs child was helpful, their son presented "nowhere

near" the challenges the Meridas would face with C.M. and C.L.M.

       The report emphasizes the children had "recently begun to stabilize, both

because of their current caregiver's skills and also the support of the trauma focused

cognitive behavioral therapy." Hostetler worried "this stabilization may unravel" if the

children are moved.




                                             9
No. 74911-1-1/10 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

       Mitchell and Madden hired independent child welfare consultant Sonja Ulrich.

Ulrich conducted a home study of the Meridas and concluded a guardianship with the

Meridas would be in the children's best interests. Ulrich emphasized the Meridas'

"multiple trainings" in preparing for foster parent licensure, Mrs. Merida's participation in

numerous online courses for her work as a caregiver, the Meridas' hiring of a parent

coach to assist them with C.M.'s and C.L.M.'s issues, and other preparation they

voluntarily undertook for parenting the children. Ulrich disagreed with the central

conclusions in Hostetler's home study report including concerns about the Meridas'

ability to handle the children's issues.

       Social worker Garcia testified that a guardianship with the Meridas was not in the

children's best interests. Garcia stressed the importance of the children's recent

progress and stable placements. Garcia also testified he did "not believe the Merida

family is able to meet the needs of" C.M. and C.L.M.

       Court-appointed special advocate Judith Lang testified she had several

"concerns" about a guardianship. Given the children's extreme behaviors, Lang

believed the Meridas would be challenged by taking in even one of the children. Lang

recommended the court deny the guardianship petition and terminate parental rights.

       The court found Madden had "been offered or provided all court-ordered

services." The court noted that while the dependency order required a psychological

evaluation with a parenting component, in April 2014,"the court ordered that the

evaluation would not be initiated until the father had provided [90] days of clean UAs."

The court found Madden did not provide 90 days of clean UAs. However, the court

found the psychological evaluation with a parenting component "would not have



                                             10
No. 74911-1-1/11 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

resulted in a different outcome" because Madden received a comparable evaluation and

services and failed to participate consistently in the services he received.

      [E]ven if[DSHS] had scheduled the father for a psychological evaluation
      with parenting component, that would not have resulted in a different
      outcome. The father had a psychiatric evaluation which made treatment
      recommendations; he did have mental health counseling, and both of his
      counselors felt that the treatment was appropriate, that ADHD treatment
      was the father's primary treatment need, and that the father would have
      been referred for additional treatment or evaluations if they felt that it was
      necessary. In addition, the father declined to fully participate in the mental
      health services that were offered and available to him.

       In addressing termination of Madden's parental rights, the court found there was

"little likelihood that conditions will be remedied so that the children can be returned to

the father in the near future."

       There is little likelihood that conditions will be remedied so that the
       children can be returned to the father in the near future. The father has
       been offered or provided all necessary and appropriate remedial services
       but has failed to participate, or has participated but has been unable to
       apply the information in a real-world setting. The father did not
       consistently take his ADHD medication despite his awareness of its
       positive effects and despite the efforts of social workers and providers to
       encourage him to take the medication consistently. The father testified to
       his inability to stop using PCP since he started using it as a teenager,
       despite multiple treatment attempts; he has been able to remain clean for
       a period of 90 days only once in the last five years. The father continues
       to face incarceration and resulting unavailability to parent for crimes
       related to his substance use. The father has not been able to make
       consistent visits with his children, much less undertake full parental
       responsibilities for their care. The court overseeing the dependency has
       not returned any of the children to the father's care since the children were
       removed by the court in July of 2012.. . and the father has not asked that
       court to do so.

       As to Mitchell, the unchallenged findings of fact state, in pertinent part:

       There is little likelihood that conditions will be remedied so that the
       children can be returned to the mother in the near future. The mother has
       been offered or provided all necessary and appropriate remedial services
       but has failed to participate, or has participated but has been unable to
       apply the information. Ms. Patrick utilized all of her known coaching tools


                                             11
No. 74911-1-1/12 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

      and techniques but the mother did not make significant progress. The
       mother did not complete the treatment recommended by Dr. Shepel, who
      testified that the mother's progress would be measured by changes in her
      response to frustration. It is clear that she continues to suffer from
      difficulty in controlling her temper. She testified that due to her frustration
      with her business partner, and with allegations about sexual abuse of
      [C.L.M.], she left the state for several months because if she remained
      present she might do something dangerous. As a result she was unable
      to visit with her children or work towards reunification with them during that
      time. The mother was very volatile in court, interrupting lawyers and the
      court, and accepting no responsibility for this behavior. In March of 2015 -
      after she had participated in extensive services and testified that she had
      learned how to avoid and/or walk away from conflict - she assaulted her
      sister, for which she was convicted of Felony Assault 3 -[Domestic
      Violence] and now faces many months of incarceration, during which time
      she will be unavailable to parent her children. The mother has not been
      able to make consistent visits with her children, much less undertake full
      parental responsibilities for their care; she has lost multiple visitation
      supervision contracts for failure to engage in visitation, and due to the
      extreme negative emotional reaction by [C.L.M.] the mother's visitation
      with that child was suspended by the court in the fall of 2015. The court
      overseeing the dependency has not returned any of the children to the
      mother's care, and the mother has not asked that court to do so.

       The court found by clear, cogent, and convincing evidence that continuation of

the parent-child relationship would diminish the children's prospects for early integration

into a stable and permanent home and that termination of parental rights, rather than a

guardianship, was in the children's best interests. The findings state, in pertinent part:

       2.19 Continuation of the parent-child relationship is an obstacle to
            permanency for these children. The children are adoptable and
            have the potential for adoption if made legally free. Adoption is not
            possible while parental rights remain intact. The proposed
            permanency alternative of Guardianship is not in the children's best
            interests.

       2.20 Continuation of the parent-child relationship, and thus the parental
            right to visitation, is also emotionally disruptive to the children and
            would interfere with their ability to stabilize in placement. The
            intermittent nature of the parents' visitation with the children has
            had an extremely negative effect on the children's psychological
            well-being.




                                            12
No. 74911-1-1/13(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)




      2.22 . . . Mrs. Merida has experience raising a special needs child of her
           own, and has made efforts to educate herself about these
           children's needs. The children share strong although somewhat
           troubled bonds between each other and with their parents.
           Continued contact with siblings and extended family would probably
           be beneficial to the children. But these considerations are
           outweighed in this case by other more compelling considerations,
           and therefore guardianship would not be in the children's best
           interests.

      2.23 The need for continued State involvement with these children is
           critical. It would not be in these children's best interest to grant the
           petition for guardianship, dismiss the dependency, and hope that
           placement with the Meridas went well. There is no existing bond
           between the children and the proposed guardians, who have met
           the children only a handful of times several years ago. Both
           children have been hard to place successfully in the past. Both
           children require support services and benefit from continued
           oversight by[DSHS]and the court.

      2.24 In addition it would not be in the children's best interest to place
           them together in the same home at this time. Children with such
           behavioral issues can exacerbate each other's behaviors. In
           addition [C.L.M.] has expressed some fear of[C.M.]. Most
           importantly,[C.L.M.] has engaged in sexualized behaviors and has
           referred to "the brother-sister game." Therefore to place her in a
           home with her brother while she is behaving in this manner would
           put both children at serious risk.

      2.25 In addition to the above issues,[C.M.] has an established
           relationship in his current and potentially adoptive placement, and
           is finally making progress on his significant emotional issues as a
           result of that stability. [C.M.] is a particularly difficult child who
           requires many special services. [C.M.'s] therapist has indicated
           that another change of placement - and especially an abrupt
           change - would be detrimental to the child's welfare. It would not
            be in his best interests to disrupt his current placement and move
           him into the home of people he barely knows. Also [C.M.'s] parents
           and providers have specifically emphasized that in managing his
           behaviors it is particularly important to have clear communication
           with [C.M.]; while Mr. Merida is very earnest and well-meaning, the
           court had the opportunity to observe his testimony and it is clear
           that his communication ability. . . is not currently sufficient to meet
           [C.M.'s] needs from a parental figure.


                                           13
No. 74911-1-1/14 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)



       2.26 . . . As noted above it is not in the children's best interest to be
            placed together at this time. Unlike [C.M.1,[C.L.M.] is not currently
            in a stable placement, but even if the court were inclined to
            continue the guardianship petition briefly for [C.L.M.] to be
            transitioned into the Meridas' care, this is not simply a matter of
            waiting a few weeks for a child to be moved into a new home.
            Rather the issue is the need for continued court and [DSHS]
            oversight that makes near-term dismissal of the dependency
            contrary to the child's best interest. [C.L.M.]'s therapist has testified
            to the child's significant emotional issues and the need for long-
            term and evolving therapy. These needs will only be intensified by
            a move to an entirely new location with people she barely knows. It
            would not be in [C.L.M.]'s best interest to move her into the
            Merida's home and dismiss the dependency, and then hope for
            success. [C.L.M.]'s interests are best protected by having
            continued [DSHS]involvement and court oversight of her new
            placement. While some minimal court oversight is possible within
            the context of a guardianship,[C.L.M.]'s interests are much better
            protected by having [DSHS]continue to assess her needs and to
            assist with providing supportive services on an ongoing basis, and
            by her case being subject to regular court review. These same
            concerns hold true for[C.M.] as well. Both children have difficult
            placement histories and it is important for[DSHS]to oversee their
            placements, provide supportive services, and also to be able to
            come to court and obtain authority for immediate placement
            elsewhere in the event that their placements were to disrupt in the
            future as they have in the past.

Standard of Review

       Madden appeals the termination of his parental rights. Mitchell and Madden also

appeal the denial of their guardianship petition.

       Parental rights are a fundamental liberty interest protected by the United States

Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599

(1982). To terminate parental rights, the State must satisfy a two-step test. RCW

13.34.180(1), .190(1). First, the State must prove the following statutory elements by

clear, cogent, and convincing evidence:

             (a) That the child has been found to be a dependent child;


                                            14
No. 74911-1-1/15 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

             (b) That the court has entered a dispositional order pursuant to
      RCW 13.34.130;
             (c) That the child has been removed or will, at the time of the
      hearing, have been removed from the custody of the parent for a period of
      at least six months pursuant to a finding of dependency;
             (d) That the services ordered under RCW 13.34.136 have been
      expressly and understandably offered or provided and all necessary
      services, reasonably available, capable of correcting the parental
      deficiencies within the foreseeable future have been expressly and
      understandably offered or provided;
             (e) That there is little likelihood that conditions will be remedied so
      that the child can be returned to the parent in the near future... ; and
             (f) That the 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); .190(1)(a)(i). If the State satisfies these criteria, the court may

terminate parental rights only if the State also demonstrates by a preponderance of the

evidence that termination is in the "best interests" of the child. RCW 13.34.190(1)(b).

       A guardianship must be ordered if the statutory criteria in RCW 13.36.040(2)(c)

are established by a preponderance of the evidence and the court finds under RCW

13.36.040(2)(a) that guardianship, rather than termination, is in the child's best

interests. In re Welfare of A.W., 182 Wn.2d. 689,698-99, 344 P.3d 1186 (2015). RCW

13.36.040(2) provides, in pertinent part:

      A guardianship shall be established if:
             (a) The court finds by a preponderance of the evidence that it is in
      the child's best interests to establish a guardianship, rather than to
      terminate the parent-child relationship and proceed with adoption, or to
      continue efforts to return custody of the child to the parent; and
                 .•
             (c)(i) The child has been found to be a dependent child under
      RCW 13.34.030;
             (ii) A dispositional order has been entered pursuant to RCW
      13.34.130;
             (iii) At the time of the hearing on the guardianship petition, the child
      has or will have been removed from the custody of the parent for at least
      six consecutive months following a finding of dependency under RCW
      13.34.030;


                                            15
No. 74911-1-1/16(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

              (iv) The services ordered under RCW 13.34.130 and 13.34.136
       have been offered or provided and all necessary services, reasonably
       available, capable of correcting the parental deficiencies within the
       foreseeable future have been offered or provided;
              (v) There is little likelihood that conditions will be remedied so that
       the child can be returned to the parent in the near future; and
              (vi) The proposed guardian has signed a statement acknowledging
       the guardian's rights and responsibilities toward the child and affirming the
       guardian's understanding and acceptance that the guardianship is a
       commitment to provide care for the child until the child reaches age
       eighteen.

       Unchallenged findings of fact are verities on appeal. In re Interest of J.F., 109

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

supported by substantial evidence. J.F., 109 Wn. App. at 728; In re Dependency of

A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277(1991). Because the burden of proof in a

termination proceeding is clear, cogent, and convincing evidence, a finding is supported

by "substantial evidence" if there is sufficient evidence to conclude that the fact is

"highly probable." In re Welfare of M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510(2008).

Because the trial court hears the testimony and observes the witnesses, the decision of

the court is entitled to deference. A.V.D., 62 Wn. App. at 568. We therefore defer to

the trier of fact on issues of conflicting testimony, credibility of the witnesses, and the

weight or persuasiveness of the evidence. A.V.D., 62 Wn. App. at 568; In re Welfare of

S.J., 162 Wn. App. 873, 881, 256 P.3d 470(2011); State v. Camarillo, 115 Wn.2d 60,

71, 794 P.2d 850(1990).

Termination of Madden's Parental Rights

       Madden contends the trial court erred in terminating his parental rights because

DSHS did not provide a psychological evaluation and therefore did not prove it had

provided all court-ordered services as required by RCW 13.34.180(1)(d). Madden




                                              16
No. 74911-1-1/17 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

acknowledges the court's finding that a psychological evaluation was unnecessary

because he received equivalent services and that an additional evaluation and

associated services would have been futile given his failure to consistently engage in

services. Madden argues, however, that the finding is not supported by substantial

evidence.

       A guardianship petitioner must prove that all necessary services were offered or

provided during the dependency. RCW 13.36.040(2)(c)(iv). DSHS contends that by

joining in the guardianship petition, Madden waived the argument that DSHS did not

provide all court-ordered services. DSHS overlooks the standard that for a

guardianship, the necessary services element can be proven by a preponderance of the

evidence. RCW 13.36.040(2)(a). However, to terminate parental rights, DSHS must

prove the necessary services element by clear, cogent, and convincing evidence. RCW

13.34.180(1); .190(1)(a)(i). DSHS does not explain how a concession that the services

element was proven by a preponderance of the evidence in a guardianship petition

precludes Madden from arguing in a termination petition that the services element was

not proven by clear, cogent, and convincing evidence. Nor does DSHS cite any

authority for this proposition. DSHS thus fails to demonstrate waiver.

       On the merits, it is undisputed that the court ordered Madden to undergo a

psychological evaluation with a parenting component and found that "even if[DSHS]

had scheduled the father for a psychological evaluation with parenting component, that

would not have resulted in a different outcome" because Madden "had a psychiatric

evaluation which made treatment recommendations; he did have mental health

counseling, and both of his counselors felt that the treatment was appropriate." In its




                                            17
No. 74911-1-1/18(Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

oral ruling, the court noted several caseworkers testified that "[n]othing else was left to

provide" after Madden received the psychiatric evaluation and associated services. The

finding is supported by substantial evidence.

       Madden obtained a psychiatric intake evaluation at the outset of the dependency.

That evaluation resulted in a diagnosis of ADHD, anxiety, and depression; ongoing

mental health counseling addressing those conditions; and medication that successfully

treated Madden's ADHD. Madden also obtained a mental health evaluation in 2014 at

Sound Mental Health and received parenting instruction through multiple referrals to

IFPS and Homebuilders. Plumb testified she would have referred Madden for additional

treatment or evaluations if he needed them. Hoogendoorn said she saw no indication

that Madden needed additional mental health services. Strong and Keefe-Bullock

testified the mental health and parenting services Madden received at Atlantic Street

Center and Sound Mental Health rendered the court-ordered service unnecessary. And

Davis and Garcia testified that Madden was receiving all the mental health services he

needed.

       The trial court also found that a psychological evaluation with a parenting

component would have been futile. "'Where the record establishes that the offer of

services would be futile, the trial court can make a finding that[DSHS] has offered all

reasonable services.'" In re Parental Rights to K.M.M., 186 Wn.2d 466, 483, 379 P.3d

75(2016)(quoting In re Welfare of C.S., 168 Wn.2d 51, 56 n.2, 225 P.3d 953(2010));

M.R.H., 145 Wn. App. at 25. The trial court found Madden "declined to fully participate

in the mental health services that were offered and available to him." The finding is

supported by substantial evidence.




                                             18
No. 74911-1-1/19 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

         The dependency review orders repeatedly noted Madden's failure to follow

through with mental health services and the trial court found Madden failed to

successfully complete or consistently participate in most of the other services provided

including visitation, UAs, medication management and counseling, and substance

abuse treatment. His caseworkers and service providers testified to these

inconsistencies as well. Even assuming a psychological evaluation might have

provided additional diagnoses or insights not discovered in his psychiatric evaluation,

there was no reason to believe Madden would consistently participate in any services

recommended by a psychological evaluation given his failure to consistently utilize

equivalent services. Substantial evidence supports the court finding that any additional

evaluation and treatment would have been futile. See In re Parental Rights to B.P., 186

Wn.2d 292, 316 n.5, 376 P.3d 350(2016)(failure to utilize services offered may show

futility).6

Denial of Guardianship Petition

         Mitchell and Madden challenge the court's findings that a guardianship was not in

the children's best interests and that any benefits from continued contact with each

other and their extended family were outweighed by other considerations. To establish

a dependency guardianship, the court must find by a preponderance of the evidence

that a guardianship rather than termination is in the best interests of the child. RCW

13.36.040(2)(a); A.W., 182 Wn.2d at 698-99. In making that determination, courts

consider the specific facts of each case. A.W., 182 Wn.2d at 711. Relevant factors


       6 Because we conclude substantial evidence supports the court finding, we need not reach
Madden's contentions that deferring the psychological evaluation "until father has 90 days of clean UAs
and medication compliance" is contrary to S.J., 162 Wn. App. at 882, and that DSHS's failure to prove the
necessary services element rendered "the court's 'best interests' determination... premature."


                                                   19
No. 74911-1-1/20 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

include the "strength and nature of the parent and child bond," the "benefit of continued

contact with the parent or the extended family," the "need for continued State

involvement and services," and "the likelihood that the child may be adopted if parental

rights are terminated." A.W., 182 Wn.2d at 711-12.

       Here, the trial court agreed with Mitchell and Madden that the children would

likely benefit from continued contact with each other and their extended family. But the

court found those benefits were outweighed by several factors. The findings of fact

state, in pertinent part, that(1) there is "no existing bond between the children and the

[Meridas]";(2) Mr. Merida has minimal parenting experience;(3)Ibioth children require

support services and benefit from continued oversight by[DSHS]and the court";(4)the

children should not be placed together due in part to sexualized behaviors of C.L.M. that

"put both children at serious risk"; (5) both children are adoptable;(6) C.M. "requires

many special services," he "is finally making progress on his significant emotional

issues" in a stable placement, and "[fit would not be in his best interests to disrupt his

current placement and move him into the home of people he barely knows";(7) C.L.M.

has similar issues including "significant emotional issues" that require "long-term and

evolving therapy";(8) inconsistent visitation "had an extremely negative effect on the

children's psychological well-being"; and (9) both children's interests "are much better

protected by having [DSHS]continue to assess [their] needs,""assist with providing

supportive services on an ongoing basis," and subject their placements "to regular court

review."

       Mitchell and Madden challenge the finding in factor(1) that the children have no

bond with the Meridas, but they do so in a conclusory fashion with no supporting




                                             20
No. 74911-1-1/21 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

argument or discussion of the record. This is insufficient. Saunders v. Lloyd's of

London, 113 Wn.2d 330, 345, 779 P.2d 249(1989)(issues unsupported by adequate

argument and authority need not be considered). Nonetheless, there is ample evidence

in the record that C.M. and C.L.M. have had very little contact with the Meridas and do

not share a bond of any significance with them.

       Mitchell and Madden do not challenge the findings in factors (2), (4), (5),(6),(7),

and (8) except to the extent that they disagree with the weight the trial court accorded

those factors. As noted above, because we defer to the trier of fact on the weight or

persuasiveness of the evidence, the claim is beyond our review.

       Mitchell and Madden challenge the findings in factors (3) and (9)to the extent

that the factors indicate DSHS is better able than the Meridas to provide the services

the children need. Mitchell and Madden note that under RCW 13.36.050(1)(b), a court

overseeing a guardianship has authority to "[s]pecify the guardian's rights and

responsibilities concerning the care, custody, control, and nurturing of the child[ren]."

But Mitchell and Madden provide no evidence that the services and oversight available

through DSHS would be available to the Meridas under RCW 13.36.050(1). Mitchell

and Madden point to the testimony of their independent child welfare consultant Sonja

Ulrich, who conducted a home study of the Meridas, to argue there are "numerous

professional agencies in the area that could work with the children where they would be

living in the guardianship." But even assuming the accuracy of that testimony, utilizing

and financing such services without DSHS assistance would put responsibilities and

financial pressures on the guardians that do not exist for parents receiving guidance

and services through DSHS.




                                            21
No. 74911-1-1/22 (Consol. with Nos. 74912-9-1, 74913-7-1, 74914-5-1)

        In any event, the availability of services in a guardianship was just one of many

factors the court weighed in determining whether a guardianship was in the children's

best interests. Most of the other factors cited by the court are not challenged on appeal.

Instead, Mitchell and Madden contend the court should have given more weight to the

independent home study, Mitchell's progress, the value of family placement, and the

children's bond with each other and their mother. But again, these arguments go to the

weight and persuasiveness of the evidence and are beyond the scope of review.

Substantial evidence supports the finding that a guardianship was not in the best

interests of C.M. and C.L.M.

        We affirm the order terminating the parental rights of Mitchell and Madden to C.L.

and C.L.M. and the order denying the petition to establish a guardianship.7




WE CONCUR:




        7 We note DSHS indicates in its brief on appeal that C.L.M. was placed with the Meridas and that
the Meridas "passed a home study specific to C.L.M. in preparation for her adoption."


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