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                                                            2018 JUN 25 AM 8:16

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of       )
                                         )         No. 76971-5-1
J.J.,                                    )
DOB: 11/27/07,                           )         DIVISION ONE
                                         )
                     Minor Child.        )         UNPUBLISHED OPINION
                                         )
STATE OF WASHINGTON,                     )
DEPARTMENT OF SOCIAL AND                 )
HEALTH SERVICES,                         )
                                         )
                     Respondent,         )
                                         )
              v.                         )
                                         )
PATRICIA DIMITRY,                        )
                                         )
                     Appellant.          )         FILED: June 25, 2018
                                         )



      TRICKEY, J. — Following an 11-day trial, the juvenile court terminated the
legal rights of Patricia Dimitry, legal custodian of 9-year-old J.J., under the

statutory provisions set forth in chapter 13.34 RCW. Substantial evidence

supports the court's finding that the Department of Social and Health Services

offered all necessary and available services capable of correcting Dimity's

parental deficiencies. The court did not abuse its discretion by limiting portions of

expert testimony offered by Dim itry. We affirm.
No. 76971-5-1/ 2


                                         FACTS

        This case concerns J.J., a child born to Laura Jenkins on November 27,

2007 in Louisiana. Patricia Dimitryl became J.J.'s legal custodian in June 2009,

after Jenkins approved a "Consent Judgment on Custody Child Support" in

Louisiana purporting to transfer legal custody to Dimitry.2

        Before J.J. was born, Dimitry was involved in serious crimes and was

convicted of two counts of accessory after the fact to first degree murder. She

served approximately five years in a Louisiana correctional facility, where she

reconnected with Jenkins, and was released in 2007.

       After J.J.'s birth, Dimitry, Jenkins, and J.J. lived together. In 2010, they

moved to Texas. There, Jenkins gave birth to another child, A.D. After a fire

destroyed their home in Texas, they moved for a brief period to Utah and then to

Hawaii. In both Texas and Hawaii, Child Protective Services (CPS) received

reports regarding the welfare of the children.           Eventually, they relocated to

Seattle where Dimitry believed she would find employment selling artwork at Pike

Place Market.

       In March 2014, when J.J. was 6 years old, a staff member of a Seattle

homeless shelter reported to CPS that J.J. and A.D. appeared to be

malnourished and dirty, and expressed concerns about the safety of their living

arrangements. The Department of Social and Health Services (the Department)




1 Some documents in the record refer to Dimitry by her former names, Patricia Guillory
and Patricia Biehn.
2 Ex. 22. The rights of J.J.'s biological parents are not at issue in this appeal, nor does
this appeal pertain to J.J.'s half-sister, A.D.
                                            2
No. 76971-5-1/ 3


took the children into protective custody. The children were placed in licensed

care and have not been returned to Dimitry's or Jenkin's care since that time.

       When J.J. came into state custody, he had few verbal or social skills, did

not understand the concept of meals or bedtime, could walk but not run, and did

not appear to be toilet-trained. He had significant dental problems that took

months to resolve. After he was placed in licensed care, J.J. was diagnosed with

posttraumatic stress disorder(PTSD).

       In May 2014, the court entered agreed dependency orders for J.J. as to

both Dimitry and Jenkins. The agreed-upon factual basis for the dependency

included Dimitry's criminal history, her acknowledged physical and mental health

conditions, J.J.'s sporadic school attendance, and housing instability.          The

dispositional order required Dimitry to obtain a psychiatric evaluation with a

parenting component to be completed by a specific provider, Dr. Joanne

Solchany, a psychiatric nurse practitioner, and to follow any treatment

recommendations resulting from that evaluation. The order also required Dimitry

to engage in 90 days of urinalysis testing and to maintain stable housing suitable

for children.

       Dimitry obtained the court-ordered psychiatric evaluation and successfully

completed the required urinalysis testing, but otherwise did not consistently

engage nor successfully complete the services recommended following the

evaluation.

       In December 2014, based on her psychiatric evaluation of Dimitry, Dr.

Solchany concluded that Dimitry met the criteria for a diagnosis of "not otherwise


                                        3
No. 76971-5-1 / 4


specified personality disorder" and also the criteria for borderline, antisocial,

narcissistic, and histrionic personality disorders. Dr. Solchany found that these

diagnoses affected           Dimitry's ability to parent.   For example, Dimitry

demonstrated difficulty focusing on J.J. rather than herself, was impulsive and

unstable, and showed a propensity toward anger. Dr. Solchany concluded that

Dimitry's prognosis was "poor" and that she was not able to safely parent J.J.3

Dr. Solchany described these conditions as "pervasive," "inflexible," and "often

very difficult to treat."4

         Dr. Solchany recommended that Dimitry participate in dialectical

behavioral therapy (DBT) in a group-based program coupled with individual

counseling to help her develop insight and accountability for her actions and

choices. Dr. Solchany recommended that Dimitry participate in mental health

treatment for at least a year, and preferably for two years.           She also

recommended that Dimitry continue to participate in parent coaching in order to

develop empathy and insight.

         Department social worker Denise Huynh was assigned to J.J.'s case

throughout the dependency period. During this time, Huynh made approximately

20 referrals for Dimitry. These included referrals to Sound Mental Health for

mental health therapy, referrals for parent coaching and parent training, for in-

home services, and referrals for visitation supervisors. The social worker also

provided bus tickets to Dimitry. Dimitry never inquired of the social worker about




32    Report of Proceedings(RP)at 270-71.
4   6 RP at 881.
                                            4
No. 76971-5-1/5


J.J.'s progress in school or his health, nor asked to attend any of his

appointments.

        In the summer of 2014, Dimitry participated in two sessions of mental

health treatment with a therapist at Sound Mental Health, but did not continue.

Two years later, Dimitry participated in DBT for about six months with a different

provider, John Buscher. Although Dr. Solchany recommended a group therapy

component, Dimitry did not want to participate in group therapy because it made

her feel anxious, so Buscher agreed to provide DBT on an individual basis.

However,      Dimitry's   engagement   was   intermittent;   she   saw   Buscher

approximately 10 times during the six month period, did not complete the

assigned homework, and eventually stopped participating altogether because

she had "a lot going on."5 Buscher explained that DBT consists of four modules

and Dimitry failed to complete any of the modules. According to Buscher, Dimitry

would need to consistently participate in DBT for at least nine months to finish

the modules and only then could he assess her progress.

        Dimitry worked with two parent coaches during the dependency. Esther

Patrick provided parent coaching to Dimitry for approximately a year until

October 2015, when Dimitry refused to work with her any longer. Although

Patrick made herself available to meet regularly and was willing to provide the

service at Dimitry's home, Dimitry met with her only approximately 12 times over

the course of 13 months. According to Patrick, Dimitry's home was not safe or




55   RP at 588.
                                       5
No. 76971-5-1/6


suitable for children. It was unhygienic, infested with bedbugs and cockroaches,

and did not improve despite the household assistance she provided.

      Dimitry largely failed to engage during the sessions and was more focused

on her boyfriend.    Patrick attempted to conduct visitation observations, but

Dimitry did not attend the scheduled visits. Dimitry insisted that she did not need

the service because she is an experienced parent. Although Dimitry denied it,

Patrick also suspected that Dimitry was involved in a domestic violence

relationship based on her observation of suspicious and extensive bruising. On

one occasion, she also observed cuts on Dimitry's wrists. Dimitry admitted that

she had harmed herself, and blamed the social worker. Patrick recommended

that Dimitry participate in domestic violence services and mental health

treatment.

      Mental health therapist Carmela Martin provided further parent coaching

to Dimitry. Martin worked with Dimitry individually, and also listened in on a

telephone visit with J.J., and observed two in-person visits with J.J. Dimitry

required intervention to maintain appropriate boundaries, engage in age-

appropriate communication, and provide a safe environment for J.J. Although

Dimitry maintained that she did not require assistance, she did not demonstrate

an ability to prioritize and meet J.J.'s needs.      Dimitry's inability to accept

constructive criticism impeded her ability to make progress. Eventually, based

on her determination that the telephone visits were harmful to J.J., Martin

recommended suspension of contact between Dimitry and J.J.




                                        6
No. 76971-5-1/ 7


       When the dependency was first established, the court allowed Dimitry to

have three supervised visits per week with J.J. Dimitry visited J.J. somewhat

regularly for the first few months, but then began to miss her visits. Over the

span of 14 months, between August 2014 and October 2015, Dimitry visited J.J.

10 times, although she was permitted to have more than 100 visits during that

time. Dimitry said she was unable to attend many visits due to transportation

issues.

       In October 2015, after J.J. was admitted to the Ryther Center for Children

and Youth due to escalating behavior problems in his foster home, Dimitry's

visitation changed to weekly 15-minute supervised telephone contact.             In

December 2015, the Department moved to terminate Dimitry's custodial rights.

       In March 2016, J.J. transitioned to a second foster care placement. About

six months later, around the time of J.J.'s two observational in-person visits with

Dimitry, he displayed new and concerning behaviors. J.J. consistently expressed

to the social worker, the Court Appointed Special Advocate (CASA), and others

that he did not feel safe with Dimity and did not want in-person or other regular

communication with her. Three months before trial, the court suspended all

visitation with Dimitry on the ground that the visitation was psychologically and

emotionally harmful to J.J. and had caused him to regress, decompensate, and

suffer additional trauma.




                                        7
No. 76971-5-1/8


       Shortly before the trial, the court conducted a conference with a Louisiana

court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.6

Louisiana relinquished jurisdiction in favor of Washington.

       The trial on the Department's petition took place in May 2017, when J.J.

was 9 1/2 years old and had been out of Dimitry's care for more than three years.

Although J.J. still had special needs due to his PTSD diagnosis, speech delays,

and behavioral challenges, he had significantly improved with regard to speech,

mobility, and emotional regulation.         His behavior significantly improved after

contact with Dimitry was suspended. He continued to visit weekly with his half-

sister, A.D. Dimitry did not attend the tria1.7

       After considering the testimony of 10 witnesses and 39 exhibits, the court

entered over 85 findings of fact and conclusions of law and an order terminating

the legal relationship between Dimitry and J.J.

                                       ANALYSIS

       The juvenile court concluded that Dimitry was J,J.'s legal custodian and a

proper party to these proceedings and that termination of her legal rights was

governed by the rigorous standards set forth in chapter 13.34 RCW. The

Department has not filed a cross appeal challenging those rulings. We therefore




6 See Washington State's Uniform Child Custody Jurisdiction and Enforcement Act,
chapter 26.27 RCW.
7 According to a document Dimitry submitted after the trial, she explained that she now
lives in California and was unable to travel to Washington for the trial. She further stated
that she did not want to attend trial because she believed that the Department's attorney
would only want to discuss her prior criminal history.
                                            8
No. 76971-5-1 / 9


assume for purposes of this appeal that the statutes applicable to the termination

of parental rights apply here.8

       Under the termination statutes, the juvenile court may order termination of

parental rights if (1) the State proves the six statutory elements of RCW

13.34.180 by clear, cogent, and convincing evidence; and (2) the court finds that

termination is in the child's best interests. RCW 13.34.190; In re Dependency of

K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). In this appeal, only one of

the six statutory elements under RCW 13.34.180(1) is at issue:

       (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.

RCW 13.34.180(1)(d).8 Clear, cogent, and convincing evidence is evidence that

shows the ultimate fact at issue to be highly probable. K.S.C., 137 Wn.2d at 925.

We give deference to the trial court in weighing the evidence and witness

credibility. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).

8 Contrary to Dimitry's argument it is neither "undisputed" nor established that she is
J.J.'s de facto parent. Opening Br. of Appellant at 8. However, in light of the court's
application of the termination statutes, Dimitry's argument that she is entitled to the
same rights as biological parents is moot.
9 The other statutory elements are as follows:
           (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;

        (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).
                                            9
No. 76971-5-1 / 10


"The court's factual findings must be upheld if supported by substantial evidence

from which a rational trier of fact could find the necessary facts by clear, cogent,

and convincing evidence." K.S.C., 137 Wn.2d at 925. Evidence is substantial if

it is sufficient to persuade a fair-minded person of the truth of the fact at issue. In

re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470(2011).

                   Necessary and Reasonably Available Services

       Dimitry contends that the Department failed to offer all necessary and

reasonably available services to address her mental health issues. This is so,

she argues, because the psychiatric evaluation performed by Dr. Solchany did

not include psychological testing or other "rigorous methodology," and therefore

did not provide an accurate diagnosis or result in recommendations for

appropriately tailored mental health services.10

       The chief problem with Dimitry's argument is that the psychiatric

evaluation does not fall within the definition of a necessary service. A necessary

service is a service "needed to address a condition that precludes reunification

of the parent and child." In re Matter of K.M.M., 186 Wn.2d 466, 480, 379 P.3d

75 (2016) (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332

P.3d 500 (2014)). As Dimitry acknowledges, the purpose of the evaluation itself

was not to enable reunification, but to direct her toward appropriate services.

The mental health treatment that followed from the evaluation, not the evaluation

itself, was the service necessary to address a condition precluding reunification.




10 Opening Br. of Appellant at 13.

                                         10
No. 76971-5-1 / 11


       Here, Dimitry does not identify a mental health or other supportive service

that would have been helpful that the Department failed to offer. The service that

Dr. Solchany recommended—DBT therapy—was the same service that John

Buscher recommended. Buscher's recommendation was independent of Dr.

Solchany's diagnosis and was based on Dimitry's own report of her symptoms

and prior PTSD diagnosis. Buscher was provided with Dr. Solchany's report at

some point and questioned whether her diagnosis of personality disorder not

otherwise specified was correct given that she also designated specific types of

personality disorders, including narcissistic and oppositional. Nevertheless, his

testimony reveals that any disagreement with Buscher's diagnosis was

immaterial   because     he    concurred    with   Dr.    Solchany's    treatment

recommendation. The testimony establishes that DBT is broadly recommended

for a "wide range" of disorders with overlapping symptoms, including personality

disorder, anxiety disorder, and PTSD, because it is helpful to manage a common

array of symptoms."

       Moreover, Dimitry's participation in the mental health services that were

available to her was minimal and sporadic. Due to her limited participation, she

failed to make progress to address her deficiencies—including a pervasive

inability to recognize J.J.'s needs and to put those needs above her own—

through mental health treatment.     It is well-settled that "[w]hen a parent is

unwilling or unable to make use of the services provided,[the Department] is not

required to offer still other services that might have been helpful."       In re


"5 RP at 590.
                                       11
No. 76971-5-1 / 12


Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001). Thus, even

assuming that an evaluation that included diagnostic testing might have provided

additional diagnoses or insights not discovered in Dr. Solchany's psychiatric

evaluation, there is no reason to believe that Dimitry would consistently have

participated in any additional services given her failure to avail herself of the

mental health services that were offered to her.

          Substantial evidence supports the juvenile court's determination that the

Department offered all necessary and reasonably available services to Dimitry.

                                       Expert Testimony

          Dimitry contends that the juvenile court abused its discretion in limiting

expert witness testimony. Dimitry contends that the court's ruling improperly

excluded "critical information about Dr. Solchany's evaluation and methods."12

          At trial, Dimitry sought to present the expert testimony of psychologist Dr.

Daniel Rybicki. Dr. Rybicki had not met or evaluated Dimitry, but was prepared

to testify about Dr. Solchany's methodology and the quality of her evaluation.

Both the Department and the CASA objected to the proposed testimony on the

ground that Dr. Rybicki, a licensed and forensic psychologist, was not qualified to

offer an opinion on the methodology of a psychiatric nurse practitioner.

          After hearing extensive testimony about Dr. Rybicki's qualifications and

expertise, the court took a recess to review respondent's exhibit 79, which

Dimitry acknowledged accurately set forth all aspects of Dr. Rybicki's proposed

testimony. The court granted the Department's motion to exclude Dr. Rybicki's


12   Opening Br. of Appellant at 22.
                                             12
No. 76971-5-1 /13


testimony, in part, and denied it, in part. The court ruled that Dr. Rybicki, as a

"very experienced psychologist," could testify about Dr. Solchany's "Axis 11

diagnosis issues," specifically with regard to personality disorders and the "catch-

all diagnosis" of personality disorder not otherwise specified.13

         The court allowed Dr. Rybicki to testify about four specific critiques listed

on exhibit 79. In particular, the court ruled that Dr. Rybicki could testify about the

accuracy of Dr. Solchany's diagnosis, her failure to cite specific examples of

behaviors or incidents to validate her clinical impressions, her failure to conduct

psychological testing to support the diagnosis, and failure to establish a link

between the diagnosis and parental deficits. This ruling excluded Dr. Rybicki's

opinions about whether Dr. Solchany's evaluation, conducted in December 2014,

was stale, whether she spent a sufficient amount of time conducting the

individual interview, whether she took steps to reduce "'confirmatory bias" or

"'observer drift," the number of collateral sources she included, and her failure to

conduct "structured segments" in her observational sessions."

          Under ER 702, "[i]f scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise." In other

words, the rule allows an expert to testify about his or her specialized knowledge

if it would help the court understand the evidence, but does not require the court

to admit proffered expert testimony that is not helpful to the trier of fact. The trial

13   7 RP at 1003.
14   Ex. 79.
                                           13
No. 76971-5-I /14


court has broad discretion in determining the admissibility of an expert's

testimony. In re Det. of McGary, 175 Wn. App. 328, 339, 306 P.3d 1005 (2013).

An abuse of discretion occurs when a trial court's decision is "manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons."

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). If the

basis for the admission or exclusion of expert opinion is fairly debatable, we will

not disturb the trial court's ruling. In re Det. of Coe, 160 Wn. App. 809, 818, 250

P.3d 1056 (2011).

          The juvenile court thoroughly considered the requirements of ER 702, the

expert's qualifications, and the offer of proof in making its ruling. The court

allowed a significant amount of testimony from Dr. Rybicki. Dr. Rybicki testified

in accordance with the ruling. Contrary to Dimitry's argument, the court allowed

Dr. Rybicki's testimony about the "failure to include psychological testing specific

to personality disorders."15 To the extent that the court sustained an objection to

testimony about the inadequacies of Dr. Solchany's methodology, the objection

pertained to the reference to "collateral source data," which was beyond the

scope of the ruling.16 Dr. Rybicki testified about the accuracy of Dr. Solchany's

"grab bag" diagnosis of personality disorder not otherwise specified.17         He

discussed Dr. Solchany's failure to identify "specific behavioral examples" to




157   RP at 1012.
16 7 RP  at 1013.
177 RP
         at 1019-20.
                                         14
No. 76971-5-1 / 15


support her diagnosis.18 He also opined that Dr. Solchany failed to explain how

the diagnosis affected Dimitry's ability to safely parent.

         The court's ruling limiting Dr. Rybicki's testimony to matters within his

expertise as a psychologist was not manifestly unreasonable, or exercised on

untenable grounds, or for untenable reasons.

         We affirm the juvenile court's order terminating the legal relationship

between Dimitry and J.J.


                                                    .-------
                                                        1 r ‘% cifr\ey
                                                                 i-    1-i
WE CONCUR:




                                                                              ..




187
      RP at 1021.
                                         15
