                                     FILE°
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                             COURT OF APPEALS DIV                         ,        12
                              STATE OF WASHINGTON       4       '.1 1;*       ::        .1:

                              2018 APR 23 PH12: 29




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Dependency of      )       No. 77046-2-1
                                        )
S.I.                                    )       DIVISION ONE
DOB: 4/24/2014,                         )
                                        )
                    Minor,              )
                                        )
STATE OF WASHINGTON,                    )
DEPARTMENT OF SOCIAL AND -              )
HEALTH SERVICES,                        )
                                        )
                    Respondent,         )       UNPUBLISHED OPINION
                                        )
                    v.                  )
                                        )
VAN LA I NTH I RATHVONGSY,              )
                                        )
                    Appellant.          )       FILED: April 23, 2018
                                        )

       MANN,A.C.J. — Vanla Inthirathvongsy appeals the trial court order terminating

his parental rights to his daughter S.I. He contends that the Department of Social

and Health Services (Department)failed to provide all necessary and available

services capable of correcting his parental deficiencies. Because substantial

evidence supports the necessary trial court findings, we affirm.
No. 77046-2-1/2

                                          t
                                                   FACTS

        lnthirathvongsy is the father of S.I. Both lnthirathvongsy and S.I.'s mother

were homeless and struggled with severe drug addiction.1 lnthirathvongsy began

using methamphetamine before he came to the United States in 1980.

        On May 11, 2015, Child Protective Services became involved when S.1.'s

mother dropped S.I. off at a relative's house and then disappeared. lnthirathvongsy

told an investigating police officer that he was homeless and unable to care for S.I.

        On May 12, the Department filed a dependency petition. On the same day,

lnthirathvongsy participated in a Family Team Decision Making meeting. He

acknowledged that he was homeless and using methamphetamine and was unable

to care for S.I. lnthirathvongsy told the Department that he had been diagnosed in

the past with post-traumatic stress disorder(PTSD)and that he was willing to

participate in services and treatment. The Department placed S.I. into foster care,

where she remained until the termination trial.

        lnthirathvongsy entered into an agreed dependency order on July 14, 2015.

The dispositional order required lnthirathvongsy to complete a drug/alcohol

evaluation and a psychological evaluation with a parenting component and follow

treatment recommendations; submit to random urinalysis(UA)for 90 days;

participate in age-appropriate parenting classes; and find and maintain appropriate

housing.




     1 The court terminated the mother's parental rights in a separate order, and the mother is not
involved in the appeal.


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No. 77046-2-1/3



        In August 2015, Inthirathvongsy entered into a voluntary agreement with

Family Treatment Court(FTC), a specialized dependency court that provides extra

support and services for parents with mental health and substance abuse issues.

For the first few months, Inthirathvongsy had difficulty complying with the program

requirements. He failed to attend sober support groups on multiple occasions,

missed UAs, and continued to use methamphetamine. After about four months in the

program, Inthirathvongsy was able to remain sober for a period of about two weeks.

       In September 2015, Inthirathvongsy completed a chemical dependency

assessment with Paul Munson, a licensed chemical dependency professional and

mental health practitioner at Harborview's mental health and addiction recovery

center. Munson, who also conducted group treatment sessions with Inthirathvongsy

at Harborview, diagnosed lnthirathvongsy as addicted to both methamphetamine and

heroin. Munson assessed the relapse risk as high, based on Inthirathvongsy's long

history of heavy drug use, homelessness, unemployment, dysfunctional relationships,

and lack of family support and sober friends.2

       Based on Inthirathvongsy's specific needs, Munson determined that the best

option was Harborview's "level 1.0... co-occurring disorders program," which

included both group therapy and individual sessions. Munson felt that "the

significance of his mental health symptoms" indicated Inthirathvongsy would be best

served by treatment that included not only individual sessions, but also group

sessions with others who were dealing with both addiction and mental health issues.


     2 Munson completed a second evaluation of Inthirathvongsy in 2016. He testified that
Inthirathvongsy's problems remained essentially the same.


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No. 77046-2-1/4
                                  ,."

       In December 2015, Inthirathvongsy was not in compliance, including positive

UAs, and the Harborview program recommended that he attend long-term inpatient

treatment. The FTC judge ordered Inthirathvongsy to participate in the

recommended long-term inpatient treatment at Seadrunar.

       Initially, Inthirathvongsy received positive reports about his engagement at

Seadrunar, including participation in group sessions. But in January 2016, after he

became upset during an encounter with another resident, Inthirathvongsy suddenly

left the program. Inthirathvongsy later criticized the Seadrunar program as "working

therapy" and referred to it as "a set-up game that .. . they're playing."

       FTC placed Inthirathvongsy on probation after he left Seadrunar. Almost

immediately, the Department social worker and FTC staff referred him to several

inpatient treatment programs, including Thunderbird and SeaMar. Inthirathvongsy

did not think he needed an inpatient program and expressed disappointment in the

FTC program because he had not yet been reunited with S.I.

       On January 31, 2016, Inthirathvongsy was arrested for unlawful possession of

a firearm. He remained in jail until the charges were dismissed in April 2016. In

March 2016, FTC dismissed Inthirathvongsy from the program for noncompliance

with the program and court-ordered requirements.

       In May 2016, Inthirathvongsy resumed outpatient treatment at Harborview with

Garrett Hebei, a chemical dependency professional and substance abuse counselor.

Initially, Hebei met with Inthirathvongsy weekly for individual sessions.

Inthirathvongsy believed that his lack of housing was a "strong contributor to his

ability to stay sober" and informed Hebel that his primary objective was to achieve


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No. 77046-2-1/5



housing. Inthirathvongsy also expressed a desire to work on anger and mental

health issues that contributed to his drug use. In Hebel's experience, Inthirathvongsy

       viewed the nature of his drug problem as utility. It was sort of a thing he
       could do to serve some needs of his. One of those needs being
       constant alertness, ability to manage and organize and stay focused.
       Those were some of the primary reasons that Vanla described to me he
       was using drugs.
Inthirathvongsy also believed that he used drugs in an attempt to exercise control

over his PTSD symptoms.

       Paul Munson testified that Harborview has a clinic specializing in treatment for

trauma-based issues. But the clinic has
       some fairly specific criteria as far as who's an acceptable candidate.
       One of the most important being that the person have a very solid
       period of sobriety. This type of trauma-based therapy is very stressful,
       and persons that don't have a good grasp on their addiction issues
       don't make good candidates. So it wouldn't have been something that
       we could have really discussed at the time of [1nthirathvongsy's]
       assessment; it would have been premature.

After evaluating Inthirathvongsy, a clinician determined that he needed to achieve

more long-term sobriety before he could be considered for intensive trauma therapy.

Inthirathvongsy then continued his course of treatment with Hebei in the Harborview

"mental health track within [the] addictions department."

       Hebei acknowledged that although Inthirathvongsy was willing to talk generally

about PTSD issues, he was "never actually open to discussing events in detail that

might have triggered his PTSD." Nonetheless, Hebei described Inthirathvongsy's

reticence as "limiting, but not inhibiting," and Hebei was able to incorporate




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No. 77046-2-1/6


techniques for dealing with both PTSD symptoms and anger issues into his treatment

sessions with Inthirathvongsy.

         Inthirathvongsy's treatment at Harborview included not only individual

sessions with Hebei, but also group sessions with the co-occurring disorders group.

Munson facilitated the group, which was designed for people who have both

addiction and mental health issues. Inthirathvongsy began sessions in the

engagement group, which required a lower level of participation. In August or

September 2016, after he demonstrated a "solid commitment," Inthirathvongsy

advanced to the "action group." The action group met more frequently, allowing

participants to address substance abuse and mental health issues in greater depth.

But after Inthirathvongsy made some unsettling comments in a group session,

Munson discontinued his participation in the group.

      Inthirathvongsy apparently resumed some participation in engagement group

sessions, but Hebel characterized his attendance as inconsistent. According to

Hebei:

      when [Inthirathvongsy] showed that he was willing to be in the program
      and committed, he was coming to pretty much every meeting or to
      every appointment. When [Inthirathvongsy] struggled, he failed to
      make a lot of his appointments.

Inthirathvongsy's overall attendance rate at his group sessions and meetings was

about 70 percent.

      In September 2016, Inthirathvongsy completed a psychological evaluation,

including a parenting component, with psychologist Dr. Gary Wieder, PhD. In



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No. 77046-2-1/7


addition to a lengthy history of drug addition, Inthirathvongsy told Wieder that he

suffered nightmares and intense distress as a result of traumatic events he

experienced in the military in Thailand.

       Wieder diagnosed Inthirathvongsy with polysubstance abuse, panic disorder,

and PTSD. Wieder's recommendations included abstention from drug use,

participation in relapse prevention programs and group support systems, UAs,

outpatient counseling for PTSD and panic symptoms to learn coping methods, and

parent coaching. Wieder believed that that the "issues related to [Inthirathvongsy's

PTSD]could be treated within the context of ongoing counseling rather than some

specific PTSD treatment."

       Wieder recommended that Inthirathvongsy participate in anger management

training if certain older domestic violence allegations were deemed to be credible.

But Wieder stressed that "nothing that emerged in the course of my evaluation either

in my interview with him, in my observation with him, or in the testing that he

completed that suggested a problem with anger management or problems with

violent intention."

       Wieder testified that the prognosis for methamphetamine users is very poor

and the risk of relapse very high. Wieder did not believe that Inthirathvongsy's

"anxiety and panic" was likely to impair his parenting ability. Wieder found it difficult

to assess the precise effect of Inthirathvongsy's PTSD, but concluded the greatest

risk to healthy parenting was Inthirathvongsy's drug use:




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No. 77046-2-1/8


      by far the greatest risk to healthy parenting is drug abuse and, in
      particular, methamphetamine abuse. Methamphetamine users can
      experience delusions and disconnections from reality that would make
      healthy parenting very difficult. And that's on the up side. That's when
      the drug is active. It's fast acting. And so it doesn't require a lot of
      buildup before we start seeing symptoms. So that could easily and
      quickly lead a parent to be unable to take care of a child. But on the
      back end of methamphetamine use, heavy users generally crash and
      sleep for hours and hours and hours and hours, which would raise the
      risk of neglect or child maltreatment during the post use of
      methamphetamine. So methamphetamine compromises healthy
      parenting, and can do that quite quickly.

       Cheri Shoecraft, a licensed domestic violence counselor, conducted a

domestic violence assessment of Inthirathvongsy in October 2016. Because

Inthirathvongsy denied all allegations of physical abuse, Shoecraft concluded that

domestic violence treatment would not be useful.

       Inthirathvongsy successfully completed parenting classes at Project Safe

Care. Inthirathvongsy's counselor described him as fully engaged in the classes.

Inthirathvongsy visited S.I. regularly during the dependency. All of the witnesses who

had observed Inthirathvongsy's interactions with Si agreed that they improved over

time and that the two had bonded. Michelle Leonatti, the court appointed special

advocate, testified that Inthirathvongsy was appropriately gentle with S.I. and

increasingly able to correct her when necessary.

       Department social worker Megan Stampfli testified that although

Inthirathvongsy had demonstrated intermittent progress and periods of sobriety, his

continuing drug use and relapses raised a "very big concern." Stampfli believed that




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No. 77046-2-1/9


Inthirathvongsy would have to demonstrate a much longer period of sobriety before

the Department could consider returning S.I. to his care:


       What's really difficult in this case is that what we've seen and what Mr.
       Inthirathvongsy has reported is that he can have significant periods of
       sobriety. He's told his chemical dependency counselor that he can stay
       sober for several months but then usually ends up relapsing. And that's
       what we've seen in this case. He has been able to maintain several
       months of sobriety at a time and then has subsequently relapsed. So I
       think that for him, the period of sobriety we would want to see would be
       a year before we could say that he's using his sober support, he's using
       his skills. And I just don't think that [S.I.] should have to wait another
       year. She's already been in foster care for two years. She's three years
       old. Another year is a significant portion of her life.

       Based in part on the length of the dependency, S.I.'s age and need for stability

and consistency, and Inthirathvongsy's inability to care for her within the foreseeable

future, Stampfli believed that termination was in S.I.'s best interest. Si. has

remained in the same foster care placement for two years. She has bonded with her

foster parents, who would like to adopt her.

       At trial, Inthirathvongsy acknowledged that he had used methamphetamine "a

lot of times" during the two-year dependency. Inthirathvongsy claimed that he was

open to talking about the traumatic incidents in his past if a counselor found that it

would be helpful and a way to "move forward." He explained that he did not want to

return to group sessions because they "remind me about drug use" and that he would

rather go to church. Inthirathvongsy asserted that he could safely parent Si even if

he continued to use drugs.

       In January or February 2017, Inthirathvongsy obtained his own apartment

through the Downtown Emergency Service Center(DESC). At around this time, Dr.

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No. 77046-2-1/10


Caroline Gass, a psychiatry resident at Harborview, diagnosed Inthirathvongsy with

PTSD. In late March 2017, Inthirathvongsy began weekly counseling sessions with

Dr. Gass "on the side." Hebel testified that at the time of the termination trial in May

2017, Inthirathvongsy continued to struggle with "fluctuating engagement" in his

treatment program,"even as[he] has gotten housing." Inthirathvongsy provided

positive UAs in January and March 2017.

       On June 6, 2017, the trial court entered an order terminating Inthirathvongsy's

parental rights.

                                      ANALYSIS

      "Parents have a fundamental liberty and privacy interests in the care and

custody of their children." In re Welfare of A.J.R., 78 Wn. App. 222, 229,896 P.2d

1298(1995)(citing In re Dependency of J.B.S., 123 Wn.2d 1, 12, 863 P.2d 1344

(1993)); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,71 L. Ed. 2d 599

(1982). But this right is not absolute. See In re Welfare of Sumey,94 Wn.2d 757,

762,621 P.2d 108 (1980); Santosky, 455 U.S. at 766-67. 'When the rights of basic

nurture, physical and mental health, and safety of the child and the legal rights of the

parents are in conflict, the rights and safety of the child should prevail." RCW

13.34.020. Before terminating parental rights, Washington courts must follow a two-

step process. First, the State must prove the six statutory elements of RCW

13.34.180(1) by clear, cogent, and convincing evidence:

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




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No. 77046-2-1/11


      (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... ; and

      (f) That continuation of the parent and child relationship clearly
      diminishes the child's prospects for early integration into a stable and
      permanent home.

In addition, due process requires the trial court to expressly or impliedly find by clear,

cogent, and convincing evidence that the parent is currently unfit. In re Welfare of

A.B., 168 Wn.2d 908, 918-19, 232 P.3d 1104(2010).

       If the court finds the State has met its burden under RCW 13.34.180(1), the

court then determines by a preponderance of the evidence if termination is in the

best interests of the child. RCW 13.34.190(1)(b); A.B., 168 Wn.2d at 911.

       When reviewing the decision to terminate parental rights, we determine

whether substantial evidence supports the court's findings of fact by clear, cogent,

and convincing evidence. In re Parental Rights to K.M.M., 186 Wn.2d 466,477, 379

P.3d 75(2016)(citing In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d

113(1999)). Clear, cogent, and convincing evidence exists when the evidence

shows the ultimate fact at issue is highly probable. In re Dependency of K.R., 128

Wn.2d 129, 141,904 P.2d 1132(1995).


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No. 77046-2-1/12


       We necessarily defer to the trier of fact on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo,

115 Wn.2d 60, 71, 794 P.2d 850 (1990). Our deference is particularly important in

proceedings affecting the parent and child relationship because of "the trial judge's

advantage in having the witnesses before him or her." In re Welfare of A.W., 182

Wn.2d 689, 711, 344 P.3d 1186 (2015).

All Necessary and Available Services

       On appeal, Inthirathvongsy does not dispute the evidence establishing that he

is currently unfit to parent, that there is little likelihood 3.1. can be returned in the near

future, that continuation of the parent-child relationship clearly diminished S.I.'s

prospects for early integration into a stable and permanent home, and that

termination is in S.1.'s best interest. He challenges only the trial court's finding that

the Department offered or provided all necessary and reasonably available services

capable of correcting his parental deficiencies within the foreseeable future. See

ROW 13.34.180(1)(d). In order to meet this element, the Department must prove it

offered services specifically tailored to the individual's needs. In re Dependency of

T.R., 108 Wn. App. 149, 161,29 P.3d 1275(2001). A "protracted delay" in identifying

and offering necessary services where parents have not resisted or refused services

may undermine a finding that the Department offered or provided all necessary

services under RCW 13.34.180(1)(d). In re Dependency of T.L.G., 126 Wn. App.

181, 198-203, 108 P.3d 156 (2005).




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No. 77046-2-1/13


       Inthirathvongsy first contends the Department failed to produce clear, cogent,

and convincing evidence that it provided all services necessary to address his PTSD.

He argues that the Department was well aware that PTSD presented a major barrier

to his ability to successfully engage in substance abuse treatment and that PTSD

counseling sessions with Dr. Gass came too late to benefit him. Inthirathvongsy

claims the Department's failure to tailor his services to address PTSD likely led to his

inability to complete inpatient treatment and continue participation in group sessions

at Harborview.

       Contrary to Inthirathvongsy's contentions, however, the record shows that the

Department provided services designed to address both his mental health and drug

addiction issues. See generally In re Welfare of S.J., 162 Wn. App. 873, 256 P.3d

470(2011)(Department's adoption of a sequential approach to substance abuse and

mental health services caused an unreasonable delay in offering mental health

counseling and a parenting assessment).

      Paul Munson, a licensed chemical dependency professional and mental health

practitioner at Harborview, conducted Inthirathvongsy's chemical dependency

assessment. Based on Inthirathvongsy's mental health needs, Munson determined

that the best option was Harborview's "co-occurring disorders program," which

included both group therapy and individual sessions. The group sessions provided

Inthirathvongsy with an expanded opportunity to address the relationship between

mental health and addiction issues. Harborview's treatment plan for Inthirathvongsy

was also consistent with Dr. Wieder's evaluation. Dr. Wieder believed that


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No. 77046-2-1/14


Inthirathvongsy's PTSD issues could be treated within the context of ongoing

counseling "rather than some specific PTSD treatment."

       Harborview evaluated Inthirathvongsy for the clinic specializing in trauma-

based issues, but determined that the program would not be appropriate for him until

he could achieve "a very solid period of sobriety." Inthirathvongsy never achieved

that goal.

       Inthirathvongsy also engaged in individual counseling with Garrett Hebei.

Hebei testified that the sessions addressed the relationship between addiction and

mental health issues, including PTSD. In conjunction with PTSD, Hebei focused on

Inthirathvongsy's "profound distrust of institutions as well as most people that he

came into contact with on a day-to-day basis" and attempted to help him recognize

"what was in his control and what was outside of his control." In particular, Hebei

worked with Inthirathvongsy to recognize the events that triggered his desire to use

drugs, such as feelings of anger or frustration and certain auditory stimuli, and

develop techniques that would allow Inthirathvongsy to "move past that moment" and

avoid a relapse or find relief.

       Contrary to Inthirathvongsy's testimony, Hebei stated that Inthirathvongsy was

never open to discussing his trauma history in detail. Nonetheless,for purposes of

treatment, Hebei found that Inthirathvongsy's reticence was "limiting, but not

inhibiting" and did not prevent Hebei from continuing to work with Inthirathvongsy on

mental health issues.




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No. 77046-2-1/15



       The record establishes that the Department provided Inthirathvongsy with

extensive services specifically tailored to address both his individual mental health

issues, including PTSD, and his addiction issues. But Inthirathvongsy's participation

in the offered services was inconsistent at best. Inthirathvongsy stopped attending

the group services with Munson that provided an opportunity to address the

relationship between mental health issues and addiction in greater depth. And up to

the time of trial, Inthirathvongsy continued to view drugs as a viable solution to his

problems. Substantial evidence establishes that the Department offered or provided

all necessary and reasonably available services capable of correcting parental

deficiencies within the foreseeable future in accordance with RCW 13.34.180(1)(d).

       lnthirathvongsy next contends that the Department failed to offer or provide

anger management classes. But the dependency court never identified anger related

issues as a parental deficiency or ordered Inthirathvongsy to complete anger

management classes. Nor did any of lnthirathvongsy's evaluations determine that he

needed anger management services to rectify a parental deficiency.

       Hebei worked with Inthirathvongsy on some anger issues in his counseling

sessions, but that was in the context of events that might trigger Inthirathvongsy's

drug use. Dr. Wieder recommended that Inthirathvongsy complete anger

management classes if the allegations of prior domestic violence were found to be

credible. But Inthirathvongsy's domestic violence assessment did not confirm the

allegations, and Dr. Wieder testified that nothing in his evaluation or interview with

Inthirathvongsy suggested "a problem with anger management or problems with

violent intention." None of the trial court's findings suggest that anger-related issues


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were a parental deficiency. Mere expressions of anger or hostility toward

Department staff during a dependency do not establish a parental deficiency

supporting termination. See T.L.G, 126 Wn. App. at 202(mere hostility and

resistance to services does not establish parental unfitness).

      Because anger issues were not a parental deficiency, the Department was not

required to provide or offer anger management classes as a necessary service.

      The order terminating lnthirathvongsy's parental rights is affirmed.




WE CONCUR:




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