                                                                  FILED 

                                                              DECEMBER 8, 2015 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division III 





  COlTRT OF APPEALS, DIVISION III, STATE OF 

               WASHINGTON 

In re Dependency of:                              )   No. 32320-0-111
                                                  )
                                                  )
O.R.L.                                            )   ORDER WITHDRAWING
                                                  )   OPINION
                                                  )
                                                  )
                                                  )

         The court on its own motion finds that the opinion filed March 24, 2015, should

be withdrawn;

         IT IS ORDERED that the opinion filed March 24, 2015, is hereby withdrawn and

a new opinion shall be filed this day_

         PANEL:       Judges Lawrence-Berrey, Brown, and Siddoway

         FOR THE COURT:
                                                                 FILED 

                                                             DECEMBER 8, 2015 

                                                         In the Office of the Clerk of Court 

                                                       W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


In re Dependency of:                           )         No. 32320-0-III
                                               )
O.R.L.                                         )         PUBLISHED OPINION
                                               )
                                               )
                                               )

         LA WRENCE-BERREY, J. ­    K.L. appeals the trial court's order tenninating her

parent-child relationship with O.R.L. K.L. contends that the tennination should be

reversed because the Department of Social and Health Services (Department) failed to

offer or provide all reasonably available services capable of correcting her parental

deficiencies. Specifically, K.L. maintains that visitation is a remedial service that the

Department failed to provide. We reaffinn In re Dependency ofTH., 139 Wn. App. 784,

162 P.3d 1 i41 (2007), hold that visitation is not a required service, and affinn the trial

court's order tenninating K.L.'s parental rights to O.R.L.
No. 32320-0-111
In re Dependency ofOR.L.


                                            FACTS

       K.L. is the mother ofO.R.L. born September 17,2012. One week prior to

o .R.L. ' s birth, K.L.' s doctor sent a letter to the Department expressing concern for K.L.
and the unborn child. The doctor stated that K.L. missed multiple scheduled

appointments, was suffering from a long history of mental illness, attempted suicide

multiple times, had no stable home, exhibited comprehension difficulties, and failed to

utilize services available to her. The doctor also informed the Department that K.L. was

seen panhandling as "homeless and pregnant," although she gave the doctor a different

account of her living situation. Ex. P-4.

       The day after O.R.L. was born, the Department removed O.R.L. from K.L.'s care

and filed a petition for dependency. The dependency order was entered on November 7,

2012. The court found O.R.L. dependent because there was no capable parent of

adequately caring for the child and because the child was in circumstances that placed her

in danger of substantial damage to her psychological or physical development. The court

required the following services to be offered to K.L.: drug and alcohol evaluation and

treatment, random urinalysis, parenting classes, a psychological evaluation, mental health

services and related medication management, a women's support group, and weekly

contact with the caseworker.


                                              2

No. 32320-0-111
In re Dependency ofO.R.L.


       The Department filed a termination petition in November 2013 due to K.L.'s

alleged failure to participate in required services. On February 13,2014, a termination

hearing occurred to address K.L.'s parental rights.' At the time of the hearing, O.R.L.

was a dependent minor for all but one day of her life, a little less than 15 months. The

child was in a safe and stable foster care home and had an opportunity for adoption into a

permanent family with her foster parents.

       The testimony and exhibits at the hearing established that in the year prior to

O.R.L.'s birth and through much of the dependency, K.L. was homeless or bouncing from

house to house. When O.R.L. was born, K.L. was temporarily living with friends whose

parental rights to their own children were terminated due to physical abuse. After a few

days at this address, she continued to move house to house and shuffled between five

different cities without finding permanent housing. However, at trial, K.L. testified that

she moved into an apartment in Lewiston, Idaho, on November 3,2013.

       K.L. had a history of chronic unemployment and had not worked since 2009. She

held only short-term jobs in the fast food industry, one that lasted two to three weeks and

another that lasted three months. During the dependency, K.L. reported that her income

was from disability.


       I   O.R.L. 's father relinquished his parental rights prior to the termination hearing.

                                                3

No. 32320-0-111
In re Dependency o/OR.L.


         Ms. McDougall's Testimony. Department social worker Sheila McDougall was

assigned to O.R.L.'s case. Ms. McDougall said that the Department was concerned that

K.L.'s mental illness would prevent her from parenting. She was also concerned that

K.L. frequently moved residences and tended to stay with unsafe people or people she did

not know well.

         After O.R.L.'s birth, K.L. attended four weeks of visitation at the beginning of the

dependency. However, she showed no understanding of how to care for an infant and did

not appear to understand the normal actions of a child that age. One month into the

dependency, K.L. discussed the possibility of relinquishing her rights. Shortly thereafter,

K.L. lost contact with Ms. McDougall except for sporadic telephone calls to check in on

O.R.L.

         Ms. McDougall testified that the Department provided numerous services to assist

K.L. These services included chemical dependency and psychological evaluations and

treatment, a women's support group, a community sexual assault program, an alcohol

dependency evaluation, counseling, an intensive outpatient program for mental illness,

and parenting classes. The Department also provided opportunities for visitation and

referrals for housing assistance.




                                               4

No. 32320-0-111
In re Dependency ofo.R.L.


       From the beginning of the dependency in November 2012 until August 2013, K.L.

failed to participate in the required intensive outpatient program for chemical

dependency. Although she completed an initial chemical dependency evaluation in

June 2013, she did not follow through with any treatment. She also scheduled two intake

appointments in August and September 2013 with a different chemical dependency

provider, but failed to show up for either appointment. In September 2013, K.L. finally

began a behavioral health program, but she attended for only three days before

abandoning the program. The program found her not amendable for treatment due to her

untreated mental illness.

       Around July 2013, K.L. contacted Ms. McDougall and asked to resume visitation.

The Department determined that it was not in the child's best interest for K.L. to become

involved unless she was truly going to work toward reunification. Ms. McDougall told

K.L. that she could restart visitation once K.L. began to meaningfully engage in services.

Ms. McDougall thought that it was not good for the child to develop a relationship with

K.L. that would eventually disappear again. K.L. promised to engage in services, but

failed to do so.

       K.L. also failed to participate in other required services and eventually stopped

contacting the Department in mid-November 2013. In January 2014, one month before



                                             5

No. 32320-0-III
In re Dependency ofo.R.L.


the termination hearing, K.L. participated in a one-day women's support group and again

enrolled in an outpatient treatment program. There was no evidence at the hearing on

whether K.L. followed up with either required service.

      At some point, Ms. McDougall arranged for a meeting between K.L., O.R.L., and

the foster parents, with the goal of convincing K.L. that O.R.L. was doing well in foster

care. Ms. McDougall was hoping that K.L. would relinquish her parental rights and avoid

the termination proceedings. Even though K.L. had not seen O.R.L. in many months,

K.L. made statements indicating an intimate relationship with the child.

      Dr. Richard Gallaher's Testimony. Also testitying at the hearing and submitting a

report was Dr. Richard Gallaher, a clinical psychologist who treated K.L. K.L. was first

offered a psychological evaluation in 2012, but she did not complete the process. One

year later, in September 20l3, K.L. reengaged in the evaluation process, and Dr. Gallaher

completed his investigation. Dr. Gallaher diagnosed K.L. with schizophrenia, paranoid

type, chronic posttraumatic stress disorder, and found multiple ongoing Axis IV

psychosocial and environmental stressors that may have affected the diagnosis.

      Dr. Gallaher also found that K.L. was quite scattered in her presentation and could

not explain why child protective services had intervened. He noted that she described

hallucinations and distorted thinking, had problems with good judgment, and described a


                                            6

No. 32320-0-111
In re Dependency ofo.R.L.


split personality that caused her not to remember what she did for up to three hours. K.L.

also admitted hearing up to 10 voices at a time. Dr. Gallaher found K.L.' s psychosis was

quite active in spite of medication, that her illness was a major deterrent to appropriate

child care, and that it would be hard for her to provide a safe and stable environment for a

baby.

        Dr. Gallaher also evaluated K.L. with the MMPI-2,2 a psychometric testing

instrument. The evaluation suggested significant clinical problems, including somatic

distress of an unusual nature, a pattern of ineffectiveness in life, difficulty managing

routine affairs, disconnection from reality at times, and the likeliness of blatant hostility.

Dr. Gallaher identified negative factors concerning parenting including major learning

difficulties and long-term mental illness that was a primary factor in her inability to

parent. He stated that she may not be willing to engage in more mental health treatment

and that she had very few opportunities to receive ongoing support for her medication

needs and counseling.

        K.L.' s prognosis indicated that she was highly likely to remain unchanged unless

she could maintain long-term stability, counseling, and manage her mental illness. Dr.

Gallaher concluded that this would be very difficult to achieve. He found that K.L. was


        2 The Minnesota Multiple Personality Inventory-2.

                                               7

No. 32320-0-III
In re Dependency ofOR.I.


not capable of parenting a child and that her very significant mental illness was very

unlikely to improve.

       Dr. Gallaher's report recommended that K.L. obtain a stable residence that would

promote metal stability and stronger relationships with treatment providers. He also

recommended that K.L. manage her mental illness with anti-psychotic and anti-depressant

medications, as well as counseling, which would also help K.L. deal with a traumatic

personal history.

       K.I. 's Testimony. K.L. also testified at the hearing. She said that her mental

stability had improved significantly, and after many years of unsafe and unstable

residences, she secured housing and obtained an apartment. She said the apartment had

sufficient space for O.R.L. K.L. also reported that her boyfriend, a convicted felon,

would be living with her once he was released from an Idaho prison rehabilitation

program. K.L. was pregnant with her second child at the time of the hearing. Although,

when asked about the pregnancy, she repeated that she was unsure if she was pregnant

because the doctor could not tell if she was 5 or 10 weeks along in her pregnancy after

conducting an ultrasound.

       K.L. acknowledged that she heard voices and hallucinated all of her life, but that

symptoms diminished once she obtained a stable place to live and felt safe for the first



                                             8

No. 32320-0-111
In re Dependency of o.R.L.


time. She also reported that she enrolled in an intensive outpatient treatment program and

began attending support groups.

       The trial court announced its decision at the conclusion of the trial. The court

terminated K.L.' s parental rights. In ordering termination, the court found that the

Department offered K.L. all necessary services, but she failed to sufficiently

engage in the programs. Also, the court found that the Department met the criteria in

RCW 13.34.1S0(1)(e) and (f) for termination. Finally, the court found that K.L. was unfit

to parent and found termination was in the child's best interests. In making these

findings, the court noted that mental illness in general does not render a parent unfit but,

based on Dr. Gallaher's opinion, the severity ofK.L.'s illness rendered her incapable of

parenting O.R.L. The court also noted that K.L.'s newfound efforts to comply with

services came too late.

       K.L. appeals. She challenges the court's finding that the Department offered all

necessary services under RCW 13.34.136 that were reasonably available and

capable of correcting parental deficiencies within the foreseeable future. See

RCW 13.34.lS0(1)(d). Specifically, K.L. contends that the Department failed to provide

visitation, which she asserts is a reasonably available service capable of correcting her

parental deficiencies.


                                              9

No. 32320-0-III
In re Dependency ofo.R.L.


                                         ANALYSIS

       The trial court in a termination of parental rights proceeding has broad discretion

to evaluate the evidence in light of the rights and safety of the child. In re Welfare of

Siegfried, 42 Wn. App. 21, 27, 708 P.2d 402 (1985). The decision of the trial court is

entitled to great deference on review and its findings of fact are upheld if supported by

substantial evidence. In re Dependency ofK.S.C., 137 Wn.2d 918,925,976 P.2d 113

(1999). Substantial evidence is evidence in sufficient quantity to persuade a fair-minded,

rational person of the truth of the declared premise. World Wide Video, Inc. v. City of

Tukwila, 117 Wn.2d 382, 387, 816 P .2d 18 (1991 ) (quoting Bering v. Share, 106 Wn.2d

212, 220, 721 P .2d 918 (1986». Unchallenged findings are verities on appeal. In re

Mahaney, 146 Wn.2d 878,895,51 P.3d 776 (2002).

       The reviewing court may not decide the credibility of witnesses or weigh the

evidence. In re Dependency ofA. VD., 62 Wn. App. 562, 568,815 P.2d 277 (1991). The

dominant consideration in a termination proceeding is the moral, intellectual, and material

welfare interests of the children. In re Dependency ofJ. w., 90 Wn. App. 417, 427,953

P.2d 104 (1998). Where the parent's interest conflicts with the child's right to basic

nurture, physical health, mental health, and safety, the rights of the child prevail.

RCW 13.34.020.


                                              10 

No. 32320-0-III
In re Dependency ofOR.L.


       "Under RCW 13.34.180 and RCW 13.34.190, a court may terminate parental

rights if it finds (I) the requisite allegations are supported by clear, cogent, and

convincing evidence and (2) termination is in the best interests of the child." In re

Welfare ofMR.R, 145 Wn. App. 10,29-30,188 P.3d 510 (2008). '''Clear, cogent and

convincing' means highly probable." Id. at 24.

       The six allegations that the Department must prove in a termination hearing 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 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.

              (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).

       Washington courts have settled the question of whether visitation is a service that

must be provided. In T.R, the court held that visitation is not a service that the



                                              11 

No. 32320-0-II1
In re Dependency ofo.R.L.


Department is required to provide under RCW 13.34.180(l)(d). T.H., 139 Wn. App. at

786. The court found that RCW 13.34.180(l)(d) refers to services ordered under

RCW 13.34.136, and that RCW 13.34.136 affords services to a parent designed '''to

enable them to resume custody.'" TH., 139 Wn. App. at 791 (quoting In re Dependency

ofA.A., lOS Wn. App. 604, 608-09,20 P.3d 492 (2001». The court reasoned, "There

may be situations where visitation is part of a required service, such as interactive

parenting classes. But it does not, on its own, correct parental deficiencies to enable the

parent to resume custody, and thus, we conclude that it is not a 'service' that must be

provided under RCW 13.34. 180(l)(d)." TH., 139 Wn. App. at 792. The court also

recognized that RCW 13.34.136 clearly differentiates between services and visitation and,

the fact that the legislature prohibited a trial court from limiting visitation as a sanction

for not complying with services, evidences an intent that the visitation is not a service.

TH., 139 Wn. App. at 792.

       K.L. asks this court to reconsider TH. and hold that visitation is a required

remedial service under Washington law. K.L. contends that RCW 13.34.02S, which

addresses remedial services, incorporates a federal law that was revised in 2011 to make

visitation a service. RCW 13.34.02S(2)(a) states, "For purposes of this chapter, remedial

services are those services defined in the federal adoption and safe families act [ASFA] as


                                              12 

No. 32320-0-111
In re Dependency ofo.R.L.


time-limited family reunification services. Remedial services include individual, group,

and family counseling; substance abuse treatment services; mental health services;

assistance to address domestic violence; services designed to provide temporary child

care and therapeutic services for families; and transportation to or from any of the above

services and activities." Under the ASFA, as amended in 2011, time-limited family

reunification services include "[s ]ervices and activities designed to facilitate access to and

visitation of children by parents and siblings." 42 U.S.C. § 629a(a)(7)(B)(vii).

       K.L. 's argument is unpersuasive. First, while RCW 13.34.025(2)(a) references the

federal law, it also specifically lists services to be provided. Visitation is not listed as a

remedial service. Second, even if 42 U.S.C. § 629a(a)(7)(B)(vii) of the ASFA is

incorporated into Washington law, it does not provide visitation, but instead provides

services and activities designed to facilitate access to the children and visitation. Thus, if

incorporated, the Department must offer services that would make visitation possible.

For instance, if visitation is prohibited because of an anger issue by a parent, the

Department would be required to provide services to address the anger issue so visitation

would be possible. See In re Welfare ofS.J., 162 Wn. App. 873, 883-84,256 P.3d 470

(2011).




                                               13 

No. 32320-0-III
In re Dependency ofOR.L.


       We find no reason to depart from the reasoning of T.H. Nor do we believe that

RCW 13.34.180(1)(d) or RCW 13.34.136 need reinterpretation. The legislature amended

RCW 13.34.136 several times since T.R was decided and did not revise the statute to

include visitation as a service to be provided to parents.

       All necessary services that were reasonably available and capable of correcting

parental deficiencies within the foreseeable future were expressly and understandably

offered or provided to K.L. The Department was ordered to provide drug and alcohol

evaluation and treatment, random urinalysis, parenting classes, a psychological

evaluation, mental health services and related medication management, and a women's

support group. K.L. does not dispute that these services were offered to her or were

capable of remedying her parental deficiencies. While visitation was offered to K.L., it

was not a required remedial service.

       Were we to examine the federal standard, we would conclude that the Department

did offer services to K.L. that were designed to facilitate access to and visitation with

O.R.L. The parenting classes and mental health treatment offered by the Department

were remedial services designed to address K.L. 's parenting issues that she displayed

during visitation when O.R.L. was an infant. However, K.L. made no effort to start




                                             14 

No. 32320-0-II1
In re Dependency ofo.R.£.


services. Without the ability to care for her child, O.R.L.'s safety was an issue and

visitation was inappropriate.

       The Department established all of the required statutory elements of

RCW 13.34.180. Specifically, the Department offered or provided all reasonably

necessary services capable of correcting K.L.'s parental deficiencies. The trial court did

not err in ordering termination ofK.L. 's parental rights to O.R.L.

       Affirm.




                                                    Lawrence-Berrey, J.

WE CONCUR: 




Brown, 1.




                                             15 

