                                                                        FILED
                                                                      May 24, 2016
                                                              In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division Ill




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

In the Termination of Parental Rights to        )         No. 32948-8-111
                                                )         (consolidated with
M.A.,                                           )         No. 32949-6-111
E.A.,                                           )         No. 32950-0-111
R.A.,                                           )         No. 32951-8-111)
R.V.-A.                                         )
                                                )
                                                )         UNPUBLISHED OPINION
                                                )

       LAWRENCE-BERREY, J. -        J.V. 1 appeals from the trial court's order terminating her

parental rights to her four children. 2 She argues that the trial court erred in finding that all

necessary services had been offered or provided because the Department of Social and

Health Services (the Department) failed to provide timely services tailored to her hearing

loss. In doing so, J.V. also argues that the Department violated both the Americans with

Disabilities Act (ADA) and Administrative Policy 7.20. Finally, J.V. argues that because


       1
         For purposes of this opinion, the parents' and children's initials are used in place
of their names.
       2
         This court recently granted J.V.'s motion so she could proceed in the trial court
and have it approve an open adoption agreement. This opinion has no bearing on J.V.'s
rights as set forth in that agreement.
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


the Department did not offer proper services, it failed to prove under RCW

13 .34.180(1 )( e) that little likelihood existed that her parental deficiencies would be

remedied so her children could be returned to her in the near future. For the reasons

stated below, we reject her arguments and affirm the termination order.

                                            FACTS

       A.     Events leading to dependency

       J.V. is the mother of M.A. (born in May 2011), E.A. (born in May 2010), R.A.

(born in August 2007), and R.V.-A. (born in November 1998). J.A. is M.A., E.A., and

R.A.'s father, and A.A. is R.V.-A's father. 3 J.V., R.A., and R.V.-A. all have

Waardenburg syndrome and hearing loss. 4 R.A. also has cognitive delays and is likely

autistic. E.A. and M.A. do not have these conditions. J.V. 's primary language is

American Sign Language (ASL) and her secondary language is written English. 5

       The family first became involved with the Department in February 2011. At this

point, J.V. and J.A. lived together wi.th the four children, had housing, and had access to a


       3
          The trial court terminated J .A.' s and A.A.' s parental rights by default before the
trial in this case, and neither are parties to this appeal.
       4
         Waardenburg syndrome is a genetic disorder that causes pigmentation issues in
the eyes and hair, profound hearing loss, and changes in facial proportion.
       5
       ASL and English are two entirely different languages-it is a common
misperception that ASL is simply signed English.

                                               2
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


relay phone system. 6 Child Protective Services (CPS) received a report that R.A.

"escaped," and that someone found her wandering several blocks from J.V.'s home. Ex.

P 1 at 3. The Department was concerned about the lack of structure and routine in the

home, lack of parenting skills, and was also concerned that R.A.-who was almost four

years old-was noncommunicative. The Department attempted to put Family

Preservation Services (FPS) in the home several times. During the first round, the family

only participated in one of the four FPS sessions and the Department terminated FPS.

The Department referred J.V. and J.A. for FPS two more times and the parents attended a

few sessions, but they ignored the services FPS offered and did not improve their

parenting skills.




       6
         A relay cell phone has a front-facing camera, and the user downloads an
application and subscribes to a video relay service provider. The person makes a video
call through the relay service, and the application connects the person with an ASL
interpreter. The person signs for the interpreter, and the interpreter then relays the
message to the person on the other end of the line in audible speech. The person on the
other end of the line then responds in audible speech, and the interpreter relays the
message to the caller in ASL. A teletypewriter, in contrast, is a typewriter-sized keyboard
connected to a land line, where the person who is hard of hearing places the call, types his
or her message, and an operator relays that message to the person on the other end of the
phone in audible speech.

                                             3
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


        The Department filed a dependency petition in March 2012. At the shelter care

hearing the trial court ordered the children to remain in J.V.'s and J.A.'s care, but also

ordered random urinalysis (UA) and breath alcohol (BA) testing, a domestic violence

assessment, FPS services, weekly contact with the Department, no other adults in the

home, and for the parents to use the light and motion sensors. The trial court also ordered

J.V. and J.A. to enroll E.A. in early head start and to enroll R.A. in Division of

Developmental Disabilities (DDD) services.

        The FPS provider and guardian ad litem (GAL) visited J.V.'s and J.A.'s home and

saw that the home was very dirty and cluttered, which the parents blamed on R.V.-A. The

children were dressed in dirty clothes, food was on the floor, and the children would

crawl around and eat the food. The Department was also concerned that J.V. and J.A.

were not complying with services, left the children unsupervised, and also allowed the

children to use the pool belonging to their next door neighbor, who was a registered sex

offender. The Department moved the trial court to place the children in foster care. J.V.

and J.A. agreed to place the children with J.A.'s parents, and the Department later placed

them with foster families. The Department assigned social worker Marci Crocker to the

case.




                                              4
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


       J.V. agreed to dependency on May 9, 2012. J.V. agreed to participate in random

UA/BA monitoring, anger management, domestic violence prevention services, family

therapy, and a neuropsychological evaluation.

       B.     J.V.'s engagement with services

              1.     Counseling

       Ms. Crocker referred J.V. for anger management and domestic violence prevention

services through Bridges of Safety on March 12, 2012 and again on June 12, 2012. J.V.

did not comply with those services. At the August 16, 2012 review hearing, the trial court

ordered for these services to be addressed through individual counseling instead.

       Ms. Crocker referred J.V. for family therapy with Mary Anne Sacco twice. Ms.

Crocker referred J.V. to Ms. Sacco to address a number of issues, such as how J.V. lacked

parenting skills, used drugs, generally ran the family poorly, did not provide safety in the

home, did not supervise the children, and allowed the children to witness domestic

violence. Ms. Sacco attempted to meet with J.V. several times, and was able to meet with

her once at a restaurant by J.V.'s house.

       Ms. Sacco made another appointment with J.V. after this first meeting, but J.V. did

not show up for the appointment. Ms. Crocker then arranged for Ms. Sacco to attend a

visitation with Lynn Lumsden-an ASL interpreter who is also a mental health



                                             5
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


therapist-so that Ms. Lumsden would be able to translate different parenting techniques

between Ms. Sacco and J.V. J.V. did not attend this visitation. Ms. Sacco kept these

appointments scheduled every Monday with the hope that J.V. would attend, and Ms.

Crocker arranged for transportation and interpreters for these appointments, but J. V.

never contacted Ms. Sacco.

       Ms. Crocker also referred J.V. for individual counseling. She first referred J.V. for

counseling with Karen Lydon because Ms. Lydon is also an ASL interpreter. Ms. Lydon

was unable to take any new clients, so Ms. Crocker referred J.V. to Megan Stofergen.

J.V. met with Ms. Stofergen at least one time, and Ms. Lumsden served as the interpreter.

Ms. Crocker referred J.V. to Ms. Stofergen again after J.V. and R.V.-A. asked for

counseling together, and Ms. Crocker scheduled three or four sessions. R.V.-A showed

up for all of these sessions, but J.V. did not. On June 21, 2013, Ms. Crocker referred J.V.

for individual therapy with Steven Erickson, with Ms. Lumsden as the interpreter. J.V.

did not attend these sessions, although Ms. Crocker may not have been in contact with

J.V. at this time. On September 24, 2013, Ms. Crocker scheduled another session with

Ms. Stofergen, R.V.-A., and J.V., with Ms. Lumsden serving as interpreter. J.V. no-

showed. Ms. Crocker rescheduled this meeting for October 1, and then again on

October 8, October 15, and October 23. J.V. no-showed each time.



                                             6
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


       Ms. Crocker was exchanging "constant e-mails" with J.V. during this time. Report

of Proceedings (RP) at 36. J.V.'s responses to Ms. Crocker indicated she received notice

of the appointments, and after her no-shows she would provide various excuses as to why

she was not there, such as an inability to find the address. Despite receiving simple and

clear directions to the appointment, J.V. still would not show.

              2.     Neuropsychological evaluation

       For the neuropsychological evaluation, Ms. Crocker originally contacted Dr.

Jennifer Van Wey. However, Dr. Van Wey told Ms. Crocker that J.V. needed a

psychologist who was fluent in ASL, and referred Ms. Crocker to Dr. Jaime Wilson. Dr.

Wilson is located in Tacoma, Washington, and Ms. Crocker arranged for him to travel to

Spokane to complete J.V.'s evaluation on October 11, 2012, and R.A.'s evaluation on

October 12, 2012. Ms. Crocker transported J.V. and R.A. to the evaluations.

       Dr. Wilson determined that J.V. has below average intelligence, is mildly

impaired, and likely would not be able to live independently on her own without assisted

living support. J.V. told Dr. Wilson that she used methamphetamine and marijuana, and

that she did not think she could stop. Dr. Wilson diagnosed J.V. with bipolar disorder

type 2, borderline intellectual functioning, as well as cannabis, hydrocodone, and prior

methamphetamine abuse. Dr. Wilson recommended weekly UAs and BAs for two years,



                                             7
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


medication workup with a psychotherapist, one-on-one parenting instruction on raising an

autistic child, supervised visitation, and financial planning. He also recommended

psychotherapy sessions, and offered to provide psychotherapy to J.V. via Skype. On

April 23, 2013, Ms. Crocker e-mailed J.V. and offered individual counseling with Dr.

Wilson via Skype. J.V. refused to see him.

              3.     Chemical dependency

      Ms. Crocker referred J.V. for UAs two days per week, and e-mailed J.V. and J.V.'s

trial counsel the times the UAs were scheduled. The first week of the UAs, the

Department inadvertently told J.V. the wrong days for her UA appointments, but Ms.

Crocker fixed the problem by the second week. Between March 2012 and January 2014,

J.V. no-showed for UAs 58 times. J.V. tested positive for marijuana seven times, and

tested negative twice. Consequently, the trial court ordered a chemical dependency

assessment. To complete this assessment, Ms. Crocker referred J.V. to Partners with

Families and Children on July 31, 2012, Spokane Addiction Recovery Centers (SPARC)

on October 6, 2012, Bobby U glioni on October 16, and Adept Assessment Center on

November 26. 7



      7
       The record does not definitively indicate whether J.V. attended these
appointments, and if so, what the results of these appointments were.

                                             8
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


       In June 2013, Ms. Crocker again referred J.V. to SPARC for a chemical

dependency assessment, and scheduled the appointment for June 21. Ms. Crocker hand-

delivered J.V. a service letter on June 20, which contained information about the

appointment. J.V. no-showed. Ms. Crocker set up the appointment again for June 26 and

requested an interpreter, and J.V. attended. However, SPARC was unable to diagnose

J.V. at that appointment, due to J.V. 's inconsistent answers and a lack of collateral

information. Ms. Crocker then brought SPARC collateral medical information. Ms.

Crocker scheduled another appointment with SPARC for September 25, 2013, and neither

J.V. nor the interpreter attended. Ms. Crocker rescheduled the appointment for

October 13, 2013, and J.V. no-showed again. J.V. never completed the evaluation, and

never entered treatment.

              4.     Visitation

       Over the course of the dependency, Ms. Crocker made five referrals for visitations

at Fulcrum Institute, a family-oriented dispute resolution facility. Ms. Crocker arranged

interpreters for all of these visits. Ms. Crocker first referred J.V. and the four children for

bi-weekly visits at Fulcrum on May 10, 2012. J.V. attended these visits consistently at the

beginning of the dependency, and demonstrated appropriate parenting behavior during

these visits. J.V. would use her relay phone to confirm the visits with Fulcrum, but


                                              9
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


eventually started sending e-mails to Fulcrum to confirm the visits. At each visit,

Fulcrum gave J.V. confirmation for the next visit. J.V. missed visits on July 11, 2012,

and August 7, 2012, and Fulcrum dismissed her from the program.

       Ms. Crocker referred the family to Fulcrum again and visits continued through

October 15, when Fulcrum dismissed J.V. a second time. Ms. Crocker referred the family

again, but J.V. canceled that visit. J.V. attended weekly visits between February 17,

2013, and June 30, 2013. Ms. Crocker updated the referral and visits occurred

sporadically from July 2013 through December 2013-there were nine successful visits,

J.V. either no-showed or canceled nine times, the interpreter no-showed twice, and the

foster family canceled twice because the children were sick. J.V. did not attend a visit

from September 29, 2013 up to the time of the termination trial. Ms. Crocker made her

fifth referral to Fulcrum on January 7, 2014. Ms. Crocker e-mailed J.V. and told her that

J.V. just needed to e-mail Fulcrum and set the visits up, but J.V. never did.

              5.     The Department's efforts to communicate with J.V. regarding
                     appointments

       In the beginning of the case, Ms. Crocker offered special mobility services to get

J.V. to her appointments. This service picks a person up, takes that person to his or her

appointment, then takes the person home after the appointment. Ms. Crocker would also

transport J.V. to counseling and doctor's appointments.

                                             10
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


      Throughout the course of the dependency, Ms. Crocker communicated with J.V.

via constant e-mails, back and forth, to tell her about her appointments. Ms. Crocker

would also update J.V. on what was happening with the children, and when doctor's visits

were scheduled. J.V. usually responded to most of Ms. Crocker's e-mails. After missing

her appointments, J.V. would e-mail Ms. Crocker and tell her, for instance, that she could

not find the provider's office. Ms. Crocker would respond with simple directions, but

J. V. would continue to no-show.

      J.V. was usually receptive to Ms. Crocker's e-mails. However, some of J.V. 's e-

mails seemed threatening to Ms. Crocker. In October 2013, J.V. claimed that she did not

have a phone. So Ms. Crocker sent J.V. a text message from a different cell phone, and

J.V. responded to the text message and asked who the number belonged to. Ms. Crocker

identified herself. J.V. then e-mailed Ms. Crocker and called her a "stupid F'er." RP at

60. J.V. also would e-mail Ms. Crocker and tell Ms. Crocker that she was not doing what

she was supposed to be doing, and that J.V. would "send the FBI out to get [her]." RP at

60.

      Ms. Crocker also sent J.V. service letters, which contained the date, time, address,

telephone number, and agency for each appointment. Ms. Crocker would also offer to

transport J.V. In the beginning of the case, Ms. Crocker would not always have an



                                            11
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


interpreter, so she would go to J.V.'s home and the two would write notes back and forth.

Later on, Ms. Crocker would usually go to J.V. 's home with an interpreter.

       Ms. Crocker arranged for ASL interpreters to be present at all of these

appointments. Ms. Crocker also arranged for interpreters to be at all the meetings

between herself and the GAL. The Department contracted with a local ASL interpreter

services company in June 2012, and the company supplied interpreters for visitation and

service appointments. The Department arranged and paid for 309 hours of interpreter

services. Between July 3, 2012, and August 4, 2014, there were 36 appointment

cancellations, only two of which were the company's responsibility.

       Around July 2013, J.V. lost her housing and moved in with a friend. Ms. Crocker

had an address to J.V. 's new house and attempted to meet with J.V. at that house with

other social workers, but no one would answer the door. This same month, J.V. moved

the trial court to supply her with a smart phone with relay capabilities. The trial court

ordered the Department to provide J.V. a smart phone. Ms. Crocker purchased a phone

and gave it to J.V., but discovered that week that the phone was not equipped with relay

capabilities. Ms. Crocker then attempted to get J.V. a relay phone, but had trouble

obtaining one because of reimbursement issues with the Department's voucher system.

Ms. Crocker made numerous calls, but kept hitting dead ends with the Department.



                                             12
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


       During this time, J.V. still e-mailed Ms. Crocker constantly. Ms. Crocker still

scheduled J.V.'s appointments and e-mailed J.V. with information about when those

appointments were scheduled. Ms. Crocker knew that J.V. already had a separate cell

phone she regularly used, and during this time Ms. Crocker watched R.V.-A. exchange

several text messages with J.V.-confirming that J.V.'s regular phone worked. The smart

phone was supposed to be for emergencies and to allow J.V. to schedule her own

appointments, but Ms. Crocker determined that she should still schedule J.V. 's

appointments herself in order to reduce any barriers to J. V. receiving services. J. V.' s trial

counsel was simultaneously working to get J.V. a smart phone, and successfully got her

one in November 2013. After J.V. got the relay phone, J.V. said that she either lost or

broke it.

       At the time of the termination trial, Ms. Crocker did not know where J.V. lived.

Ms. Crocker continued to contact J.V. in the months leading up to the termination trial

and continued to offer to make appointments for her and to get J.V. into services, but J.V.

was unwilling to engage.

       C.     Review hearings

       The trial court held a review hearing on August 16, 2012. The trial court found

that J.V. was noncompliant with all services, except that J.V. had scheduled her


                                              13
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


neuropsychological evaluation and had met with Ms. Sacco the day before. The trial

court ordered the same services to continue, and also ordered J.V. to begin hands-on

parent training and individual counseling.

       The trial court held a permanency planning review hearing on December 20, 2012.

The trial court found that J.V. had completed her neuropsychological evaluation, but was

noncompliant with all other services. The permanency plan for the children was to return

them to J.V. 'scare.

       The trial court held a regular review hearing on May 9, 2013. The trial court found

that J.V. was noncompliant with all of her services. The permanency plan was still to

return them to J.V. 'scare.

       The trial court held another permanency planning review hearing on October 10,

2013. The trial court found that J.V. was compliant with individual counseling with Ms.

Stofergen and had attempted to complete the chemical dependency assessment at SPARC,

but was noncompliant with all other services. The trial court modified the permanency

plan for the children to adoption. On October 13, 2013, J.V. gave birth to a fifth child. 8

At the birth, both J.V. and the new baby tested positive for methamphetamine.




       8
           The new child is not involved in this case.

                                               14
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


       The trial court held another regular review hearing on April 10, 2014. The trial

court found that J.V. was noncompliant with all services. J.V. was not present at the

hearing, but showed up after the hearing was over. Around this time, J .A. posted on

Facebook that he had tuberculosis. Accordingly, the trial court ordered both parents to

complete tuberculosis testing before any additional visits or services could proceed.

       D.       Termination

       The Department filed the termination petition on April 23, 2013. The termination

trial commenced August 4, 2014. At trial, Ms. Crocker testified that she did not foresee

that J.V. would follow through in the near future because at that point J.V. had not

followed through in the last two years. Ms. Crocker testified that all services the court

ordered were either offered or provided, and there were no other services that could have

been offered.

       The GAL testified that during the time she worked with the family she did not see

J. V. make any progress to get to the point where her children could be returned. She also

testified that the Department constantly tried to set up appointments for J.V. and then J.V.

would no-show, that J.V. would not take responsibility for herself, and that J.V.'s low

motivation for change disturbed her. The GAL testified that, in her opinion, "all the

services that these parents needed were in place," and that the Department was "going



                                             15
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


above and beyond their duty to provide services again and again, reapplying and re-

setting up services when [the parents] get exited from programs for no-shows." RP at

280. Finally, the GAL testified that she knew "there was a big issue about the cell phone,

but it certainly seemed to me that [J.V.] had access and was able to text [R.V.-A.] on a

regular basis." RP at 280.

       Dr. Wilson testified that direct one-on-one ASL communication, specifically with

psychotherapy and parenting skills, would have been able to help J.V. Dr. Wilson

specifically recommended one-on-one therapy with a provider who was fluent in ASL

because

       [o]btaining those types of services in a general setting with a sign language
       interpreter would be less effective because, for one, it's not meeting [J.V.'s]
       direct communication needs. . . . So when you're trying to get
       communication through a third person through an interpreter, it's not
       considered to be equal access as it would be with direct communication.

RP at 318. However, Dr. Wilson noted that this service "can be really difficult to find

because there's not a lot of individual providers that know ASL fluently and can

communicate at the level that [J.V.] would need." RP at 318. Dr. Wilson testified that

there are some "creative ways to be able to provide direct ASL communication," such as

through a relay phone, and that "it's almost better to not obtain services through a




                                             16
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. ofParental Rights to MA., E.A., R.A., R. V-A


secondary communication mechanism," due to the potential for erroneous conclusions

and invalid diagnoses. RP at 319.

       Dr. Wilson noted J.V. had poor judgment and insight, borderline intellectual

functioning, bipolar disorder, and a significant deficit in functioning. The Department

asked Dr. Wilson if J.V. could remedy the parenting deficits he identified in the near

future, and Dr. Wilson testified that "[i]t probably would not be in the near future, most

likely would be on a long term basis because of the cognitive deficits that were

demonstrated." RP at 321.

       Following presentation of the evidence and closing arguments, the trial court

granted the Department's petition to terminate J.V. 's parental rights to M.A., E.A., R.A.,

and R.V.-A. In ordering termination, the trial court found that the Department had

established each of the six elements contained in RCW 13.34.180(1) by clear, cogent, and

convincing evidence. The findings specifically listed the services offered or provided to

J.V., and also listed the specific reasons supporting the trial court's finding that

conditions could not be remedied so the children could be returned to J.V. in the near

future. J.V. appeals.




                                              17
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


                                        ANALYSIS

       Parents have fundamental liberty and privacy interests in the care and custody of

their children. In re Welfare ofA.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995).

Thus, terminating parental rights should be allowed only "' for the most powerful

reasons.'" Id. (internal quotation marks omitted) ( quoting In re Sego, 82 Wn.2d 736,

738,513 P.2d 831 (1973)).

       Washington courts use a two-step process when deciding whether to terminate

parental rights. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010);

RCW 13.34.190. First, the Department must show that the statutory requirements in

RCW 13 .34.180(1) are established by clear, cogent, and convincing evidence. A.B., 168

Wn.2d at 911. Second, the Department must show the termination is in the best interests

of the child by a preponderance of the evidence. Id. "Only if the first step is satisfied

may the court reach the second." Id.

       A.     First step: RCW 13.34.180(l)factors

       Under the first step, the statutory requirements that the State must allege and prove

by clear, cogent, and convincing evidence are set forth in RCW 13 .34.180(1 ):




                                             18
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


               (a) 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 ... 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 ....

       Evidence is clear, cogent, and convincing if it shows the ultimate fact at issue is

highly probable. In re Dependency of K.S.C., 137 Wn.2d 918,925,976 P.2d 113 (1999).

On review, the trial court's findings will not be overturned if supported by substantial

evidence. Id. Evidence is substantial if it is sufficient to persuade a fair-minded person

of the truth of the declared premise. In re Welfare of C.B., 134 Wn. App. 942, 953, 143

P.3d 846 (2006). Because the trial court has the opportunity to hear the testimony and

observe the witnesses, its factual findings are entitled to great deference. K.S. C., 13 7

Wn.2d at 925. This court does not make credibility determinations or weigh evidence on

review. C.B., 134 Wn. App. at 953.


                                              19
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


       J.V. raises four issues related to the first step. We take them in order.

              1.     All necessary, reasonably available, services

       The trial court may not terminate parental rights unless the Department proves

"[t]hat the services ordered under RCW 13.34.136 have been expressly and

understandably offered or provided and all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future have been

expressly and understandably offered or provided." RCW 13.34.180(l)(d). "This

encompasses 'all reasonable services that are available within the agency, or within the

community, or those services which the department has existing contracts to purchase' in

order to enable a parent 'to resume custody.'" In re Dependency of T.L. G., 126 Wn. App.

181, 198, 108 P.3d 156 (2005) (quoting former RCW 13.34.136(l)(b)(i), (iv) (2000)). A

service is necessary within the meaning of the statute if it is needed to address a condition

that precludes reunification of the parent and child. In re Welfare ofC.S., 168 Wn.2d 51,

56 n.3, 225 P.3d 953 (2010). "To meet this statutory burden, the State must tailor the

services it offers to meet each individual parent's needs." In re Welfare of S.J, 162 Wn.

App. 873,881,256 P.3d 470 (2011).

       To meet its burden under RCW 13.34.180(l)(d), the Department must show it

offered or provided J.V. the required services, and that J.V. either failed to engage or



                                             20
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


waived her right to such services. In re Welfare ofS. VB., 75 Wn. App. 762, 770, 880

P .2d 80 (1994 ). A parent's unwillingness or inability to avail himself or herself of

remedial services within a reasonable period is highly relevant to this court's

determination of whether the elements of RCW 13.34.180 are established. In re

Dependency ofC.T, 59 Wn. App. 490,499, 798 P.2d 1170 (1990).

       If a parent is unwilling or unable to make use of the services offered or provided,

the Department is not required to offer additional services that might have been helpful.

In re Dependency ofS.MH, 128 Wn. App. 45, 54, 115 P.3d 990 (2005). "[B]ecause

RCW 13.34.180(l)(d) limits the services required to those capable of remedying parental

deficiencies in the 'foreseeable future,' the trial court can find that the Department

offered all reasonable services ' [w ]here the record establishes that the offer of [other]

services would be futile."' In re Welfare of K.J.B., 188 Wn. App. 263,278,354 PJd 879

(2015) (second and third alterations in original) (quoting In re Welfare of MR.H, 145

Wn. App. 10, 25, 188 P.3d 510 (2008)), review granted, 184 Wn.2d 1033, 366 P.3d 932

(2016).

       J.V. argues that the Department failed to offer or provide all necessary services

tailored to her disability because the Department provided services through providers who

were not fluent in ASL and provided interpreters to translate, rather than using providers



                                              21
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


who were themselves fluent in ASL. J.V. points to Dr. Wilson's testimony and the trial

court's finding that 'ls]ervices recommended would be best directly provided by

individuals fluent in ASL as opposed to through interpreters." Clerk's Papers (CP) at

191. The trial court considered Dr. Wilson's testimony at trial and nevertheless found

that

       [t]he services reasonably available were provided in a manner that was
       understandable by [J.V.] that took into account her disability. It was
       necessary for the Department to tailor services for this mother, and the
       Department did this.

CP at 191. The trial court found that the Department either offered or provided all

necessary services, noting that J.V. "did not engage in any service, and made no progress

in remedying her parental deficiencies." CP at 194.

       Substantial evidence supports the trial court's finding that the Department tailored

the services it offered to J.V. 's disability. Dr. Wilson testified that it "can be really

difficult to find" providers who are fluent in ASL. RP at 318. Nevertheless, the

Department originally contacted Ms. Lydon to provide J.V. therapy, but Ms. Lydon was

unable to take any new clients. The Department offered J.V. individual counseling with

Dr. Wilson-who was fluent in ASL-and J.V. refused to see him. Consequently, the

Department provided Ms. Lumsden as the interpreter for the therapy sessions J.V. was

supposed to have with Ms. Sacco, Ms. Stofergen, and Mr. Erickson. The Department did

                                               22
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


this because Ms. Lumsden is also a mental health therapist and, therefore, would be the

best at translating different parenting techniques.

       Despite the Department's efforts to provide J.V. with services tailored to her

disability, J.V. simply refused to engage. J.V. met with Ms. Sacco once and Ms.

Stofergen at least one time. Other than these two meetings, the record is replete with

dozens of service appointments where J.V. either canceled or simply no-showed. J.V. did

not attempt anger management and domestic violence prevention services. After the first

sessions with Ms. Sacco and Ms. Stofergen, J.V. no-showed for every other remaining

appointment. The Department arranged and paid for 309 hours of interpreter services, yet

there were 36 appointment cancellations, only two of which were the interpretation

company's fault.

       J.V. no-showed for UAs 58 times, and after SPARC was unable to diagnose J.V. at

the initial assessment, J.V. no-showed for the reassessment. Ms. Crocker continued to

contact J. V. in the months leading up to the termination trial and continued to offer to

make appointments for her and to get J.V. into services, but J.V. was unwilling to engage.

Because the record establishes that J.V. was unwilling to make use of the services

offered, the Department was not required to offer other services-such as services with

ASL-fluent providers-that might have been helpful. S.MH., 128 Wn. App. at 54.



                                             23
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


       J.V. similarly argues "that the Department failed to tailor the services it provided

J.V. when it gave her applications for the relay phone and housing, which were in written

English. However, J.V. never attempted to fill out the two-page application. Ms. Crocker

gave J.V. the forms on multiple occasions, may have called and scheduled an appointment

to apply for housing, and offered to assist J.V. in filling out the forms. As with the other

services, RCW 13 .34.180(1 )( d) did not require the Department to go to unreasonable

lengths to tailor the services it offered when J.V. was unwilling to engage in them.

       J.V. further argues that the Department offered her services and communicated

information about her appointments in written English, rather than through ASL. J.V.

argues that she "cannot be faulted with the failure to follow through with services when

the offers of services were essentially offered to her in a foreign language." Br. of

Appellant at 20. J.V. cites Dr. Wilson's testimony that because ASL and written English

are different languages, written English "would not be an effective way to communicate

with a deaf individual and it would not be considered equal access." RP at 338.

       While ASL is J.V. 's first language, the record establishes that J.V. was quite

capable of communicating in written English. When Ms. Crocker e-mailed J.V. to remind

her about her appointments, J.V. would e-mail back. The record establishes that J.V.

actually knew when she was supposed to be at her appointments, as evidenced by the fact



                                             24
 No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
 In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


 that she would e-mail Ms. Crocker after she missed her appointments and tell Ms.

 Crocker, for instance, that she could not find the provider's office.

        Other evidence establishes that J.V. was capable of communicating in written

 English. J.V. e-mailed Ms. Crocker several times to report instances of domestic violence

 between her and J.A., would send text and Facebook messages to R.V.-A., would e-mail

 Fulcrum to confirm her visitation appointments, and e-mailed Ms. Sacco to cancel and

 reschedule their appointments. J.V. e-mailed Ms. Crocker to tell her that J.A. had

· tuberculosis. When Ms. Crocker used a different phone number to send J.V. a text

 message, J.V. e-mailed Ms. Crocker and called her a "stupid F'er." RP at 60. J.V. has

 been able to communicate with multiple people via writing notes back and forth in

 English. Therefore, the "constant e-mails" and service letters Ms. Crocker sent or hand-

 delivered J.V. were communicated in a manner J.V. could understand and narrowly

tailored to her disability.

        We conclude the Department offered or provided J.V. all necessary, reasonably

 available services, which were tailored to J.V.'s hearing loss, and therefore proved

 RCW 13 .34.180( I)( d) by clear, cogent, and convincing evidence.




                                              25
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


              2.     Compliance with the ADA

       In a related argument, J.V. maintains that the termination of her parental rights

violated the ADA because the State failed to reasonably tailor the services it offered to

accommodate her disability. She argues that the Department failed to tailor her services

because it did not provide J.V. services from individuals fluent in ASL, nor did it

communicate with her in ASL, but rather through written English.

       The ADA prohibits a public entity from discriminating against disabled persons by

excluding them from participation in or denying them the benefits of public services and

programs. 42 U.S.C. § 12132. The ADA requires the state or other public entity to make

reasonable accommodations to allow the disabled person to receive the services or to

participate in the public entity's programs. 28 C.F.R. § 35.130(b)(7).

       Here, it is undisputed that J.V. is a qualified individual with a disability and thus

protected under the ADA. However, no Washington court has addressed the question of

whether an ADA violation provides an independent basis for reversing a termination

order. In A.J.R., this court recognized that the ADA requires the State to make reasonable

accommodations to allow disabled persons to receive services or to participate in its

programs. A.JR., 78 Wn. App. at 230. But it did not directly reach the question of

whether a parent may raise the ADA as a defense to the termination of parental rights.



                                             26
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


Instead, the A.JR. court found on the facts presented that the Department, by providing

services designed to meet the parent's special needs, had met any obligations that the

ADA might impose. Id.

       Here, as in A.JR., we reject J.V.'s ADA claim on the same basis we rejected her

challenge under RCW 13 .34.180(1 )( d). As we discussed above, the Department offered

to provide her psychotherapy with Dr. Wilson, who is one of the few providers in the

region who is fluent in ASL. J.V. refused the Department's offer. The Department also

provided interpreters for all of J.V.'s service appointments, and J.V. failed to attend

services. Finally, although written English is J.V.'s second language, the record contains

ample evidence that J.V. is sufficiently proficient in written English to have understood

when and where her appointments were scheduled. The record establishes that J.V.'s

disability was not the reason for her failure to engage in necessary services; rather, J.V. 's

failure was due to her lack of motivation. Accordingly, we reject J.V.'s ADA claim for

the same reason that we rejected her challenge under RCW 13 .34.180(1 )( d).

              3.     Compliance with Administrative Policy 7 .20

       J.V. also argues that the Department violated DSHS Administrative Policy 7.20,

which requires the Department to provide accommodations to make its programs and

services equally accessible to people who are deaf. J.V. argues that the Department


                                              27
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


violated Administrative Policy 7.20 because the Department communicated with J.V.

through written English, did not timely comply with the trial court's order to provide her

with a smart phone with relay capabilities, and gave her applications in English to fill out

on her own. 9

       Administrative Policy 7 .20 requires the Department to "provide equal access

opportunities to people with hearing loss or people with speech disabilities so they may

participate in or benefit from programs, services, or activities in accordance with the

ADA." Ex. RI01 at 6. The policy requires the Department to "make available

appropriate auxiliary aids and services where reasonably necessary to provide effective

communication." Id. The policy lists a number of examples of "auxiliary aids," which

include qualified interpreters and written materials. Id. at 2.

       First, J.V. argues that the Department violated the policy because it communicated

service appointment information with J.V. through written English. However, the policy

lists "written materials" as an acceptable auxiliary aid under appropriate circumstances.

Id. at 2. The Department used written materials to communicate the basic information

regarding the service appointments to J.V., and then always provided the services


       9
        Like with the ADA issue, J.V. cites no authority that would allow this court to
reverse a termination order on the basis that the Department failed to comply with an
agency policy.

                                             28
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


themselves through an interpreter-another appropriate auxiliary aid under the policy.

Again, the record makes clear that J.V. is sufficiently proficient in written English to have

comprehended Ms. Cracker's e-mails and service letters, which told her when and where

she needed to be at her appointments. In doing so, the Department fulfilled its obligation

to "provide effective communication" under the policy. Id. at 6.

          Second, J.V. argues that the Department violated the policy when it failed to timely

comply with the trial court's order, dated July 26, 2013, which required the Department to

provide J.V. with a smart phone by the October 10, 2013 review hearing. The record

reflects, and the trial court found, that Ms. Crocker did not ignore the trial court's order to

get J.V. a smart phone and tried hard to obtain one, but had trouble obtaining one because

of reimbursement issues with the Department's voucher system. J.V.'s trial counsel

eventually got her a smart phone in November 2013. In its oral ruling, the trial court

criticized how the Department handled the smart phone situation, and noted that

bureaucratic issues within the Department regarding how it would pay for J.V. 's smart

phone did not excuse the Department from its obligation to follow its own administrative

policy.

          Nevertheless, the trial court found that "[t]he cell phone issue did not create a

barrier to the mother engaging in the services." CP at 192. Substantial evidence supports


                                                29
No. 32948-8-111; 32949-6-111; 32950-0-111; 32951-8-111
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


the trial's court's finding. Ms. Crocker testified that the purpose of getting J.V. a smart

phone with relay capabilities was that so J.V. could use it in case of an emergency, and

also so that J.V. could set up her own service appointments if she wanted to do that.

However, Ms. Crocker still set up all of J.V.'s appointments in order to make it easier on

J.V., and then Ms. Crocker and J.V. exchanged e-mails regarding the times J.V. needed to

be at the appointments. Moreover, the record shows that J.V. already had a separate

functional cell phone that she regularly used throughout the entire time that Ms. Crocker

attempted to get her a smart phone.

       Finally, J.V. argues that the Department violated the policy when it gave her an

application for the relay phone-which was in written English-and expected her to be

able to complete it. However, J.V. never attempted to fill out the two-page application,

even though Ms. Crocker offered to help her.

       We conclude that the Department did not violate Administrative Policy 7 .20

because the Department and J.V. were able to effectively communicate by text and bye-

mail throughout the entire dependency. We further conclude that the Department's

failure to timely obtain a smart phone for J.V. did not create a barrier to J.V. engaging in

services.




                                             30
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


              4.     Likelihood for remedying parental deficiencies in near future

       J.V. finally argues that because the Department did not offer proper services, it

failed to prove under RCW 13 .34.180(1 )( e) that little likelihood existed that her parental

deficiencies would be remedied so her children could be returned to her in the near future.

       The Department must prove "[t]hat there is little likelihood that conditions

will be remedied so that the child can be returned to the parent in the near future."

RCW 13 .34.180(1 )( e). The focus of this element is whether the identified deficiencies

have been corrected. MR.H., 145 Wn. App. at 27. If the parent is unable to resolve his

or her deficiencies within 12 months after the child has been declared dependent, the

statute's rebuttable presumption applies and the burden of production shifts to the parent,

although the Department must still prove it is highly probable the parent would not

improve in the near future. In re Welfare ofT.B., 150 Wn. App. 599,608,209 P.3d 497

(2009).

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

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

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

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




                                             31
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


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

re Welfare ofA.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010).

       The trial court found that

       [t]here is little likelihood that conditions will be remedied so that the
       children can be returned to the mother in the near future. Dr. Wilson found
       that in order for any change in the mother, she would need at a minimum
       long term individual therapy along with supportive living arrangements and
       to be drug free. The mother has not maintained a relationship with her
       children during the past two years of the dependency matters, and has not
       seen her children for over 8 months. She has very little, if any, motivation
       to change.

CP at 195. The trial court concluded that the parent-child relationship had not improved

in spite of all the efforts Ms. Crocker made, that J. V. did not take advantage of any of the

numerous services the Department offered, and therefore the Department established

RCW 13.34.180(l)(e) by clear, cogent, and convincing evidence.

       Substantial evidence supports the trial court's finding. As discussed above, the

Department offered all necessary services to J.V. that were tailored to J.V.'s disability,

but she was unwilling to make use of them in the 27 months her children were in out-of-

home care. When progress has not been made in 12 months following dependency, a

rebuttable presumption rises that little likelihood exists conditions will be remedied so

that the child can be returned to the parent in the near future. Because J.V. failed to




                                             32
No. 32948-8-111; 32949-6-111; 32950-0-111; 32951-8-111
In re Term. of Parental Rights to MA., E.A., R.A., R. V.-A


produce evidence rebutting the presumption, substantial evidence supports the trial

court's RCW 13.34.180(1)(e) finding.

        J.V. argues that the witnesses simply regurgitated the language of RCW

 13 .34.180(1 )( e), and this was insufficient to support the trial court's factual finding .

. However, the Department's witnesses did not parrot the language of the statute-they

gave specific reasons as to why they believed little likelihood remained for remedying

conditions in the near future. The GAL specifically testified that she did not think the

children could be returned to J.V. in the near future because J.V. repeatedly no-showed at

appointments the Department scheduled, continued to pursue domestic violence

relationships with J .A., lacked motivation to change herself, and would not take

responsibility for what she needed to do. Ms. Crocker identified J.V's lack of follow

through with services.

        Similarly, Dr. Wilson testified that "[i]t probably would not be in the near future,

most likely would be on a long term basis because of the cognitive deficits that were

demonstrated." RP at 321. Dr. Wilson was referring to his earlier diagnoses that J. V. has

poor judgment and insight, has below average intelligence and borderline intellectual

functioning, has bipolar disorder, and has a significant deficit in functioning. Dr. Wilson

testified that J.V.'s motivation to change was very low, and that she would have a



                                                33
No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III
In re Term. of Parental Rights to MA., E.A., R.A., R. V-A


difficult time severing herself from her domestic violence relationship. This evidence far

exceeds a simple parroting of the required standard.

      Affirmed.

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

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

RCW 2.06.040.


                                         Lawrence-Berrey, J.

WE CONCUR:
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                                            34
