       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of:       )
                                          )       DIVISION ONE
D.A.N.(DOB: 04/08/2014),                  )
D.R.N.(DOB: 02/03/2009),                  )      No. 78414-5-1
                                          )      (consol. with No. 78415-3-1)
                       Minor children,    )
                                          )
AMBER KAY ELLIOTT,                        )
                                          )       UNPUBLISHED OPINION
                       Appellant,         )
                                          )
                  v.                      )
                                          )
STATE OF WASHINGTON,                      )
DEPARTMENT OF SOCIAL AND                  )
HEALTH SERVICES,                          )
                                          )
                       Respondent.        )      FILED: March 11,2019
                                          )

       DWYER, J. — Amber Elliott appeals the termination of her parental rights to

her children, D.R.N. and D.A.N. She contends that the Department of Social and

Health Services failed to carry its burden under RCW 13.34.180 and RCW

13.34.190 to prove that it offered all necessary services, that she is currently

unfit, that the children cannot be returned to her in the near future, and that

termination is in the best interests of the children. We affirm.
No. 78414-5-1/2


                                                  I

        On May 18, 2016, seven-year-old D.R.N. and two-year-old D.A.N. were

found in the cab of a U-Haul truck while their mother, Amber Elliott, was in the

back preparing to inject drugs. The children had access to drug paraphernalia in

the truck. They were removed from their mother and placed in the custody of the

Department of Social and Health Services (Department).

        At the time, the mother was already involved with the Department. She

had previously been referred to Child Protective Services due to concerns about

substance abuse, neglect, and inadequate food. However, believing that these

referrals were a form of harassment by her neighbor, the mother had refused to

participate in urinalysis (UA)test services.

        The Department filed dependency petitions for both children. In its July

19, 2016 dependency order, the trial court ordered that the mother obtain a drug

and alcohol evaluation, a mental health assessment, and follow the

recommendations of those assessments. The mother was also ordered to

participate in random UA testing, and to attend parenting classes.

        The mother struggled to complete these services. More than a year after

the court's order, and after three referrals by the Department, she submitted to a

drug and alcohol assessment. The evaluator recommended a relapse

awareness program, which the mother had not completed at the time of tria1.1



         1 In her drug and alcohol evaluation, her mental health evaluation, and at trial, the mother
denied recent or current drug use. She reported that she last used methamphetamines and
heroin in 2014. However, she was found preparing to use drugs when her children were taken
into protective custody in 2016, and she was found with heroin and drug paraphernalia shortly
before trial in February 2018 during a shoplifting investigation.

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No. 78414-5-1/3


Similarly, the mother delayed her mental health assessment until August 9, 2017.

She was diagnosed with posttraumatic stress disorder and major depressive

disorder, recurrent severe, and the evaluator recommended counseling. She

participated in only two counseling sessions.

       The mother was inconsistent with her UA testing. While she provided

several tests that were negative over the course of the dependency, she also

missed many. The mother did not complete the ordered parenting class. In her

first enrollment, she had excessive absences. At the time of trial, she had again

begun parenting classes.

       During the dependency, the mother struggled with her physical health.

She had three surgeries on her hip, and spent over a month in a nursing facility.

She was confined to a wheelchair in the three months before trial. She

requested and received some transportation accommodation from the

Department to help travel to visits, but still struggled to make the journey from her

home to the visitation location. While she requested that her mother attend

visitations to help with some of her physical limitations, the Department denied

that request.

       At trial, Department social worker George Nelson testified that the mother

made little progress during the course of the dependency, never graduating

beyond supervised visits and was consistently late to those visits. He explained

that the Department would not return her children until she could "establish

sobriety, stabilize her mental health, . . .[attend] a parenting class to improve her




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No. 78414-5-1/4


parenting, and stabilize her life in general." Nelson estimated that it would take

"best-case scenario, at least a year" to complete those steps.

       After observing the mother's conduct on the first day of trial, the court

ordered that she submit to a UA test. The mother went to the testing facility, but

did not produce a valid sample. After a two day trial, the court entered an order

terminating the mother's parental rights.2 She appeals.

                                                II

       Parents enjoy fundamental liberty interests in the continued care, custody,

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

102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Deprivation of parental rights is only

permissible if supported by powerful reasons. In re Welfare of A.J.R., 78 Wn.

App. 222, 229, 896 P.2d 1298 (1995). A trial court's termination decision

involves a two-step process. In re Welfare of A.B., 168 Wn.2d 908, 911, 232

P.3d 1104 (2010). The first step focuses on the adequacy of the parents. The

Department must prove the six termination factors set forth in RCW 13.34.180(1)

by clear, cogent, and convincing evidence. A.B., 168 Wn.2d at 911. If this

burden is satisfied, termination may be ordered if the Department establishes

that it is in the best interests of the child by a preponderance of the evidence. In

re Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522(2011).

       We review the trial court's decision for substantial evidence in light of the

demanding standard of review. In re Parental Rights to B.P., 186 Wn.2d 292,




      2 The father's   rights have been terminated.

                                               4
No. 78414-5-1/5


313, 376 P.3d 350 (2016). Unchallenged findings of fact are verities on appeal.

In re Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).

                                          A

         The mother argues that because the Department did not offer her a

psychiatric evaluation, it failed to offer all necessary services capable of

correcting parental deficiencies.

         In order to terminate parental rights, the Department must prove that "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). Necessary services

are those services "'needed to address a condition that precludes reunification of

the parent and child." In re Parental Rights 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)).

         The trial court found,

         The mother's parenting deficiencies include mental health issues,
         substance abuse issues, lack of parenting skills, and ongoing
         criminal activity. Services offered to the mother have included
         drug/alcohol evaluations and treatment, random UA testing,
         parenting classes, a mental health assessment and treatment, and
         casework management.

Finding of Fact 2.11. The court further found that "all necessary services

reasonably available, capable of correcting the parents' parental deficiencies

within the foreseeable future, have been expressly and understandably offered or

provided to the parents." With respect to the psychiatric evaluation, the court

found,

                                          5
No. 78414-5-1/6


       Debra Heinzer did not recommend a psychiatric assessment but
       the mother requested one. Ms. Heinzer testified that the mother
       could benefit from a psychiatric assessment and provided the
       mother with information on how to obtain one from Compass
       Health. No treating professional who worked with the mother ever
       made a recommendation that this was a necessary service.
       Nonetheless, this service was offered to the mother and the mother
       did not participate.

       There is substantial evidence to support these findings. Heinzer

conducted a mental health evaluation of the mother and diagnosed her with

posttraumatic stress disorder and major depressive disorder. Heinzer

recommended that the mother receive individual counseling. During the

evaluation, the mother requested a psychiatric evaluation for medications.

Heinzer believed that a medication evaluation "would have helped her" and

instructed her on how to arrange one. But Heinzer did not recommend one. The

mother did not get a psychiatric evaluation.

       Heinzer did not recommend a medication management psychiatric

evaluation as a necessary service, nor did any other provider. Her observation

that the service may be "helpful" falls short of evidence that it is necessary. And

while the mother at times took prescription medication, she did not at the time of

trial. There is no evidence connecting her use of prescription medication to her

parenting deficiencies, so the psychiatric evaluation is not a necessary service

"needed to address a condition that precludes reunification of the parent and

child." K.M.M., 186 Wn.2d at 480 (quoting A.M.M., 182 Wn. App. at 793). A

parent's request for a service is not sufficient to convert that service to a

necessary one.



                                          6
No. 78414-5-1/7




      The mother argues that the termination order must be reversed because

the Department failed to present evidence of what constitutes the "near future"

for D.R.N. and D.A.N. under RCW 13.34.180(1)(e).

       In termination proceedings, the Department must prove 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 parental deficiencies have been corrected. In re Dependency of K.R.,

128 Wn.2d 129, 144, 904 P.2d 1132 (1995)). What constitutes the near future

depends on the age of the child and the circumstances of the child's placement.

In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156(2005).

Eighteen months was beyond the "near future" for a nearly four-year-old child

who was in a placement that could provide a permanent adoptive home. In re

Dependency of D.A., 124 Wn. App. 644, 657, 102 P.3d 847(2004). One year

was beyond the near future for a six-year-old who had been in foster care her

entire life. In re Dependency of T.R., 108 Wn. App. 149, 166, 29 P.3d 1275

(2001).

       Here, the trial court entered the following pertinent findings:

      2.11 The mother's parenting deficiencies include mental health
      issues, substance abuse issues, lack of parenting skills, and
      ongoing criminal activity. Services offered to the mother have
      included drug/alcohol evaluations and treatment, random UA
      testing, parenting classes, a mental health assessment and
      treatment, and casework management.


      2.22 Likelihood of Remedial Action


                                         7
No. 78414-5-1/8


       There is little likelihood that conditions will be remedied so that the
       child can be returned to the parents in the near future.



       2.26 In the best-case scenario, it will take at least one year for the
       mother to address her parental deficiencies if she started now.
       However, the first step is for the mother to recognize she has a
       problem, which she does not appear inclined to do.

      2.27 One year is beyond the foreseeable future for three-year-old
      [D.A.N.] and nine-year-old [D.R.N.]. The children have been in care
      for nearly 22 months and need permanency.

       Substantial evidence supports these findings. Despite numerous services

over almost two years, the mother's parental deficiencies were not addressed.

The mother does not challenge finding of fact 2.11, which lists her current

parental deficiencies as mental health issues, substance abuse issues, lack of

parenting skills, and ongoing criminal activity. Social worker Nelson testified that

it would take "at least a year" in the "best-case scenario" for the mother to

stabilize her life such that the Department would return her children. But he went

on to explain that "there is no reason to believe that the pattern will change in the

foreseeable future, as far as the mother's unwillingness or inability to access the

services that she's been ordered to do and asked to do." Indeed, the mother

testified that she did not have a problem with drugs or alcohol, had no

weaknesses as a parent, and was not in need of any services. Given this

attenuation between the mother's assessment of her parenting and the

Department's perspective, substantial evidence supports that there was little

likelihood that the mother could acquire adequate parenting skills in a future near




                                          8
No. 78414-5-1/9


enough for her children. Under these circumstances, it was unnecessary that the

Department establish a numerical "near future" for D.R.N. and D.A.N.



      The mother argues that the Department did not prove that she was

currently unfit to parent-D.R.N. and D.A.N. because the Department did not show

a connection between her alleged drug use and parental fitness.

      A parent has a due process right not to have the relationship with a natural

child terminated in the absence of a finding of current unfitness to parent the

child. A.B., 168 Wn.2d at 920. The trial court found, in pertinent part,

      2.11 The mother's parenting deficiencies include mental health
      issues, substance abuse issues, lack of parenting skills, and
      ongoing criminal activity. . . .



      2.23 The mother is currently unfit to parent. The mother has failed
      to address her substance abuse issues and they remain ongoing.
      She has also not addressed her mental health issues and has
      failed to complete parenting classes.



      2.25 The mother has been in and out of jail during the dependency.
      She was most recently arrested less tha[n] a month prior to the trial
      for shoplifting and found in possession of what the officer believed
      to be heroin and drug paraphernalia including a syringe, foil, and a
      spoon with burnt residue on it.

      Substantial evidence supports the finding that the mother is currently unfit

to parent her children. The mother was diagnosed with posttraumatic stress

disorder and depression, but failed to address her mental health conditions

through recommended counseling. Nelson testified that the mother is not

currently able to parent her children because of her "untreated mental health

                                         9
No. 78414-5-1/10


issues, lack of stability, questionable parenting skills, and just a — sort of a

chaotic lifestyle in general that would not be conducive to raising a very dynamic

three year old and a very bright nine year old." In addition, the mother lacked

stability as a result of her ongoing criminal activity. Shortly before trial, she was

arrested for shoplifting and found with what appeared to be drugs, and drug

paraphernalia. At the time of trial, she had a warrant for her arrest. When asked

where her children would go in the event she had to go to jail, the mother

suggested that her mother and her sister would take care of them, even though

the Department did not approve of either of them to be caregivers for D.R.N. and

D.A.N. Notwithstanding her drug use, there is substantial evidence supporting

the trial court's finding that the mother is currently unfit.

       But the record also supports that the mother's uncorrected drug use

impedes a good faith attempt to engage in services. Even if the drug use itself

does not cause unfitness, it perpetuates the mother's parental deficits by

presenting a barrier to remedying these deficits. For example, the mother denied

that she was an active drug user during her mental health evaluation and

chemical dependency evaluation. Both evaluators testified that their assessment

results and recommendations could not be considered reliable if the mother

withheld her substance abuse. The mother's denial of her drug use thus

interfered with receiving and engaging with appropriate services capable of

remedying her parental deficits. The trial court did not err in finding the mother

currently unfit.




                                           10
No. 78414-5-1/11


                                          D

       The mother argues that the trial court erred by finding that the continuation

of the parent-child relationship clearly diminishes the child's prospects for early

integration into a stable and permanent home under RCW 13.34.180(1)(f). The

only basis for this contention is her argument that the Department failed to prove

that it provided necessary services and that her parental deficits could not be

corrected in the near future. Because we have already rejected those

arguments, we also reject her argument under RCW 13.34.180(1)(f).

       Nevertheless, substantial evidence supports the trial court's finding that

the continuation of the parent-child relationship clearly diminishes the child's

prospects for early integration into a stable and permanent home. D.R.N. and

D.A.N. were in their foster home, a prospective adoptive placement, for 13

months. They were "stable, thriving, bonded, they're comfortable and happy in

their current home, and they're together. They have foster siblings that they

have a relationship with." Social worker Nelson testified that the only legal

barrier to permanency in the children's current home was the continuing legal

relationship between the mother and the children.

                                         E

       The mother contends that the Department failed to prove that termination

is in the children's best interests. "[T]he goal of a dependency hearing is to

determine the welfare of the child and his [or her] best interests." In re Welfare of

Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). In order to terminate a

parent-child relationship, the trial court must determine, by a preponderance of


                                         11
No. 78414-5-1/12


the evidence, that termination is in the best interests of the child. RCW

13.34.190(1)(b). The factors involved in determining the best interests of a child

are not capable of specification; each case must be decided on its own facts and

circumstances. Aschauer, 93 Wn.2d at 695.

       Social worker Nelson testified that termination was in the children's best

interest. During nearly two years of dependency, the mother had not remedied

her parenting deficiencies such that she could move to unsupervised visits with

her children. Further, she had not completed any of the services ordered by the

court, such as mental health therapy, a relapse awareness program, or parenting

classes. Meanwhile, the children were in a safe, stable home with their foster

parents. The Guardian ad Litem reported that in the current foster home,

       [t]he children have integrated well with this family and both children
       are supported and doing well. [D.R.N.] has matured and his
       behaviors have improved. Both children have negative behaviors
       and reactions surrounding visitation and contact with the mother.
       This might be due to the mother's inconsistent visitation and the
       uncertainty this creates in the children.

The Guardian ad Litem recommended that "[t]he children should be made legally

free for adoption as this is in the child's best interests." Substantial evidence

supports the trial court's finding that it is in the best interest of D.R.N. and D.A.N.

to terminate the parent-child relationship.

       We affirm.




We concur:



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