                                                                                   FILED
                                                                                April 23, 2015
                                                                       In the Office of the Clerk of Court
                                                                     W A State Court of Appeals, Division III




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

                                                   )         No. 32084-7-111
!
l.    In re the Welfare of:                        )         Consolidated with
                                                   )          No. 32089-8-111
1'I   AK.J.M.W.,                                   )
                                                   )

I     DOB: 01/03/10                                )
                                                   )         UNPUBLISHED OPINION

I
i
j
      A person under the age of eighteen
      years.
                                                   )
                                                   )


I
!
             BROWN, AC.J. -      EA (mother) and LW. (father) appeal the juvenile court's
i~
      order terminating their parental rights over AK.J.M.W. (AW.). E.A. first contends
I     substantial evidence does not support the court's findings that (A) under RCW
1     13.34.180(1) all necessary services were expressly and understandably offered or

      provided; and next she contends little likelihood exists conditions would be remedied so
1
i
      AW. could be returned to EA in the near future; and (B) under RCW 13.34.190(2) it
j     was in AW.'s best interest to terminate her mother's parental rights. Additionally, EA
I
I     contends (C) there was ineffective assistance of counsel and (D) a public trial right


I     violation. LW. joins in Band C, and separately contends (E) he was denied


I     constitutional due process by deficient notice of the rescheduled termination trial.



I,
!
i
      Because the record supports each challenged finding, and we find no reversible

      constitutional error, we a'ffirm.
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of A.K.J.M. W




                                          FACTS

       In July 2011, the Department of Social and Health Services (DSHS) removed

AW. from L.W. and E.A's home and filed a dependency petition based on the parents'

domestic violence in the presence of AW. and AW.'s exposure to drugs and

prostitution. On October 13, 2011, the parents agreed to a dependency order and

agreed to participate in drug and alcohol evaluations, random urinalysis (UAs),

parenting education, and a domestic violence assessment. The mother agreed to

complete a mental health evaluation. DSHS social worker Tara Camp made referrals

for necessary services. From the time of dependency to termination, DSHS offered the

following services to help the parents:

       1. Substance abuse services provided to E.A. On October 7, 2011, chemical

dependency counselor Susan Tempel evaluated E.A for substance abuse. During the

evaluation, EA reported daily use of marijuana over the past year, but stated she

stopped using it in May 2011. When Ms. Tempel informed E.A of her intent to

recommend intensive outpatient treatment, EA became upset, agitated, verbally

abusive, and failed to complete the evaluation.

       In November 2011, chemical dependency counselor Linda Gonzalez conducted

a second substance abuse evaluation. EA reported her drug and alcohol use began at

age 14, but she did not feel she had a chemical dependency problem. During her first

appointment, EA was very defensive and did not return again until January 2012.



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In re Welfare of A.K.J.M.W.


Based upon her interview with E.A., testing, and her collateral contacts, Ms. Gonzalez

diagnosed E.A. as alcohol and cannabis dependent and recommended she participate

in intensive outpatient treatment, followed by a relapse prevention program. Ms.

Gonzalez estimated this treatment program would take one year. E.A. never attended

treatment sessions, and Ms. Gonzalez closed her file in February 2012. In May 2012,

E.A. participated in intensive outpatient treatment with chemical dependency counselor

John Winston. While she initially did fine, she later became hostile and angry during a

group session, yelling and swearing at Mr. Winston in an uncontrollable manner. E.A.

was discharged from the program after three weeks due to her behavior. E.A. 's social

worker encouraged E.A. to seek treatment with another provider and on July 13, 2012,

E.A. participated in a substance abuse evaluation with chemical dependency counselor

Michelle Roberts. E.A. reported she had used marijuana and alcohol, indicating her last

use of marijuana was December 31,2010. Ms. Roberts did not feel E.A. was honest.

Ms. Roberts was unable to form a diagnosis or treatment recommendation because

E.A.'s defensiveness score was too high.

      Later in July 2012, E.A. participated in a substance abuse evaluation at Sundown

M. Ranch. E.A. reported primary use of marijuana, a prior attempt at outpatient

treatment, a prior mental health diagnosis, and a current pregnancy. Sundown staff

diagnosed her as chemically dependent, but reported to be in remission. However,

E.A.'s defensiveness score on testing indicated she might not be candidly reporting

information. Following the assessment, E.A. was admitted to outpatient treatment.



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No. 32084-7-111 cons. wi 32089-8-111
In re Welfare of A.K.J.M.W.


       Beginning on August 3, 2012, E.A. participated in an intensive outpatient

treatment group at Sundown with treatment provider by Jari Hickman. E.A. was

required to attend group four times per week, three hours per session, and was aware

she risked discharge for noncompliance. During group sessions, E.A. was

argumentative and defensive. She was discharged from the program on August 28,

2012 for failure to regularly attend the program. Sundown treatment directors

determined E.A. should participate in inpatient treatment. The outpatient treatment

director attempted to reach E.A. to discuss inpatient treatment, but E.A. did not return

the call and never returned to the treatment facility. On October 25, 2012, E.A.

submitted to a random UA, which tested positive for marijuana and amphetamines. She

tested positive again for marijuana in March 2013.

       2. Domestic violence and anger management services provided to EA and

L. W. Domestic violence treatment provider, Reynaldo Chavez, received a referral to

assess E.A.'s anger management in October 2011. E.A. suffered a dysfunctional

childhood, growing up in an extremely violent home. She experienced instability in her

relationships including violence, domestic violence, and physical and emotional abuse.

She described her relationship with LW. as unstable, characterized by conflict and

turmoil.

       E.A. disclosed the couple was verbally and physically aggressive toward each

other. Mr. Chavez'S testing showed E.A. expressed anger explosively. He explained

such an individual has poor skills to cope with stress, frustration, depression, anxiety,



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No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AKJ.M.W.


and parenting. When such a person blows up, the resulting anger can be physical,

verbal, and very violent. He recommended EA participate in a minimum one-year

program to help her understand the impact of violence on her life and on her child, and

to identify ways to break the cycle and provide a positive nurturing environment.

      Shortly after he completed EA's assessment, Mr. Chavez started providing her

domestic violence education. E.A attended inconsistently, frequently canceling

appointments. Mr. Chavez closed her case in March 2012. From November 2011

through March 2012, EA made no progress towards the program goals. At closure,

she still needed at least another year of domestic violence treatment. EA. and LW.'s

relationship remained volatile during this time period. In March 2012, therapist Tawnya

Wright noted visible bruising on EA's neck. Ms. Wright attempted to talk with EA

about the impact of domestic violence on AW" without progress.

      DSHS then referred EA to domestic violence treatment provider Rose Roberson

who met with EA for 10 sessions from April 25,2012 to July 12, 2012. She was

regularly rescheduling EA.'s sessions to try to accommodate EA.'s consistent

cancellations. Ms. Roberson noted E.A appeared guarded, minimizing the seriousness

of her relationship with LW. She identified E.A.'s problem as pervasive. Ms. Roberson

suspected EA had an underlying bipolar disorder and believed a therapist could not be

effective until EA was medically stabilized. Ms. Roberson terminated E.A from

services, but assessed EA still had anger management problems.




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1	   No. 32084-7-111 cons. wI 32089-8-111
     In re Welfare of A. K.J. M. W.


            DSHS referred L.W. to Ms. Roberson. She noted L.W. tended to minimize the

     seriousness of his behavior. Ms. Roberson recommended L.W. participate in a six-

     month anger management program and participate in random UAs. In March 2012, Ms.

     Roberson suspended L.W. from her program due to missed appointments. Police

     arrested L.W. on domestic violence charges later that month and Ms. Roberson was

     asked to reinstate him in her program. Ultimately, he stopped attending; services were

     terminated in September 2012. At the time of the termination hearing, L.W. was

     incarcerated in a Texas jail for pending domestic violence charges.

           3. Mental health services provided to E.A. Following entry of the dependency

     disposition order on AW., E.A participated in a mental health exam at Central

     Washington Comprehensive Mental Health, and the evaluator recommended mental

     health treatment. On March 3, 2012, therapist Patricia Byers assessed E.A and

     determined she was moderately depressed and suffered from post-traumatic stress

     disorder (PTSD). For treatment to be successful, Ms. Byers noted E.A would need to

     be clean and sober. Ms. Byers developed a treatment plan with E.A and estimated

     treatment would span one to two years, assuming E.A was fully engaged. At the end of

     their 16 sessions, Ms. Byers did not feel E.A met their treatment goals. During their

     last session on September 15, 2012, E.A became very angry and verbally abusive

     toward Ms. Byers and was unable to deescalate; Ms. Byers had to ask her to leave the

     office. E.A did not return for any more sessions.




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In re Welfare of A.K.J.M. W


       E.A. then self-referred to Doug Cheatham, another mental health counselor.

E.A. wanted Mr. Cheatham to provide her domestic violence counseling, but Mr.

Cheatham was not a state-certified domestic violence provider. The dependency court

determined E.A. could see Mr. Cheatham for counseling, but not for domestic violence

counseling. E.A. did not accept her social worker's offer to make a referral to a Yakima

domestic violence counseling provider. E.A. stopped seeing Mr. Cheatham when she

moved to Texas in March 2013.

       4. Psychological and psychiatric evaluations for E.A. On May 3, 2012,

psychologist Naughne Boyd assessed E.A. E.A. 's test profile was consistent with a

person who initially had positive interactions with a service provider but if challenged,

could turn hostile, angry, or explosive. E.A.'s three problem areas included domestic

violence, marital problems, and her assaultive history. Dr. Boyd explained to benefit

from treatment, E.A. would need to feel liked, trusted, and believed by her therapist. Dr.

Boyd said it would be reasonable to expect E.A. would have periods where she would

maintain and comply with a service provider, followed by periods of noncompliance.

E.A.'s repression of her shortcomings made diagnosis somewhat difficult. Dr. Boyd

diagnosed marijuana dependency, in remission, PTSD symptoms (but not necessary

the disorder), possible bipolar disorder, strong indications of histrionic personality traits

and narcissistic. As a result of her assessment, Dr. Boyd concluded E.A. had significant

issues with anger management as reflected in her domestic violence issues. While E.A.

was friendly and outgoing, she could quickly become irrational and angry. Dr. Boyd



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In re Welfare of AK.J.M. W.


noted evidence of E.A's willingness to distort the truth to get what she wanted. Dr.

Boyd opined when E.A was involved in a fight or caught up in emotion, she could not

pay attention to her child's needs. Dr. Boyd recommended E.A participate in and

complete all recommended services including anger management, individual therapy,

parenting education, and random UAs. Dr. Boyd recommended referral to a psychiatrist

to fine tune E.A's diagnosis and make appropriate medication recommendations.

       In August 2012, E.A contacted psychiatrist Dr. Philip Rodenberger. She

requested a psychiatric evaluation and notified him of the DSHS's involvement in her

services. Dr. Rodenberger requested additional background information from DSHS,

which the parties' current social worker, Angela Gonzalez,1 provided. Dr. Rodenberger

requested E.A complete a drug and alcohol evaluation before completing the

psychiatric evaluation with him. E.A did not participate in the requested drug and

alcohol evaluation and did not return to Dr. Rodenberger to complete the psychiatric

evaluation.

       5. Parenting assessments provided to E.A. and L. W. DSHS asked therapist,

Tawnya Wright, to assess E.A and L.W. for parenting needs. Ms. Wright was unable to

complete L.W.'s assessment due to multiple incarcerations and work conflicts. She

evaluated E.A in February 2012. The tests showed E.A' experienced a significant

amount of stress in her life to a point it might interfere with parenting. Ms. Wright

observed E.A often expressed anger and disdain for DSHS and most professionals


       1Angela Gonzalez's full name is used to distinguish from Linda Gonzalez, E.A.'s
chemical dependency counselor.

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No. 32084-7-111 cons. wI 32.089-8-111
In re Welfare of A.K.J.M.W


involved with the case. In her parenting assessment recommendations, Ms. Wright

recommended E.A comply with service requirements, including domestic violence or

anger management treatment and parenting education services. Although E.A had

periods of positive interaction with AW. during visits, her mental health and behaviors

worsened. Ms. Wright noted E.A's anger prevented her from recognizing when

professionals were trying to help her.

       At the end of July 2012, during a scheduled parenting session with Ms. Wright

and AW., E.A left the building with AW. When confronted by a social worker outside

the building, E.A began screaming at the social worker while AW. slumped, put her

head down, and did not say anything. As a result of this incident, Ms. Wright

discontinued sessions with E.A until she received mental health intervention, could

stabilize her behavior, and was not so explosive and potentially dangerous.

       In 2013, E.A and L.W. moved to Texas, leaving AW. in foster care in

Washington. Soon after arriving, E.A gave birth to a son. Texas social service

investigator Jennifer Leal met with the parents in Texas on March 11, 2013, to

investigate a referral concerning E.A and L.W.'s neglectful supervision of their newborn

son. The referral alleged the family arrived in Texas from Colorado, and the mother and

child tested positive for marijuana at the child's birth.

       On March 12, 2013, L.W. called to speak with Angela Gonzalez, the parties'

social worker back in Washington. During the conversation, L.W. denied knowledge J?f

the birth of his son and said he had no contact with E.A, again indicating he was in



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 No. 32084-7-111 cons. w/32089-8-111
 In re Welfare of A. K.J. M. W


 California. On March 14,2013, after E.A. was allowed to return home from the hospital

 with her newborn son, another referral was made to Texas authorities, and the

 investigators assigned to the case removed the infant from E.A and L.W.'s care.

        Based on the negative course of the above services, DSHS petitioned to

 terminate E.A and L.W.'s parental rights over AW; both parents were personally

 served with the petition and requested counsel. Both parties' attorneys unsuccessfully

 requested continuances, arguing "[m]ultiple relatives have emerged and are willing to be

 a placement for the child." Clerks' Papers (CP) at 144, 148. The termination trial was

 set for June 3,2013, but due to a conflict arising on the second day of trial, the trial

 judge recused herself, declaring a mistrial. A new judge was assigned and proceeded

 under the same cause number. On June 5, 2013, the court rescheduled trial to

 September 16,2013. The status conference order was approved by L.W.'s attorney.

 Our record shows no evidence of any relative requesting guardianship between June

 and September.

        At trial in September 2013, neither parent appeared. Ms. Leal testified that while

 investigating allegations of negligence relating to the parties' newborn son in Texas,

 E.A admitted using marijuana again, but claimed it was for nausea. L.W. admitted

 using marijuana approximately two weeks before. Another Texas social worker,

 Melloney Arnett, testified her last communication with L.W. was two weeks prior to the

. termination trial. 	 She met with him at the county jail where he was incarcerated for

 domestic violence against E.A She spoke with him about the termination of parental



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No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A K.J. M. W


rights trial in Washington. While Ms. Arnett did not provide written notice, she verbally

informed him of the rescheduled September trial date.

       AW.'s guardian ad litem (GAL), Mimi Fuzi, testified she noted E.A had not seen

AW. for over a year. In March 2013, L.W. told AW. he was going to California for a

month but never returned. Ms. Fuzi testified AW.'s foster home was "loving, nurturing,

appropriate. They adore her." Report of Proceedings (RP) at 498. Ms. Fuzi

recommended termination of E.A and L.W.'s parental rights because their domestic

violence, drug use, homeless ness and instability was no good for AW.

      Angela Gonzalez described the parents' participation in services as sporadic and

not fully engaged. She testified the parents were currently unfit to parent AW. based

on untreated, ongoing domestic violence issues, ongoing mental health issues, drug

and alcohol issues, the unstable living environment, the explosive relationship between

E.A and L.W., and sporadic participation in services. She opined it was unlikely AW.

could be returned to their care.

      After a five-day trial, the court terminated E.A. and L.W.'s parental rights, finding

substantial evidence supported the RCW 13.34.180(1) factors, termination was in

AW.'s best interests, and the parents were unfit. Both parents appealed.

                                       ANALYSIS

                      A Statutory Elements of RCW 13.34.180(1)

      The issue is whether substantial evidence supports the trial court's findings under

RCW 13.34.180(1).



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No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AK.J.M.W.


       Parents have a fundamental liberty interest in the care, custody, and

companionship of their children. Santo sky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388,71 L. Ed. 2d 599 (1982). As such, the State may interfere with parents' rights

"only for the most powerful of reasons." S.J., 162 Wn. App. 873, 880,256 P.3d 470

(2011) (quoting In re Welfare of AJ.R., 78 Wn. App. 222, 229,896 P.2d 1298 (1995)).

When the parental actions may cause harm or a risk of harm to the child, the State has

a right and responsibility to protect the child. AJ.R., 78 Wn. App. at 229; In re Custody

of Smith, 137 Wn.2d 1, 18,969 P.2d 21 (1998). Therefore, "reunification must be

balanced against the child's right to basic nurture, physical and mental health, and

safety; ultimately, the child's rights and safety should prevail." In re Welfare of AG.,

155 Wn. App. 578, 588,229 P.3d 935 (2010).

       Washington courts use a two-step process to determine whether to terminate

parental rights. RCW 13.34.180(1); In re Welfare of AB., 168 Wn.2d 908, 911,232

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

the State to prove the six statutory elements of RCW 13.34.180(1) by clear, cogent and

convincing evidence. RCW 13.34.190(1)(a); AB., 168 Wn.2d at 911. The six statutory

elements required by the first step are as follows:

       (a) That the child has been found to be a dependent child;
       (b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
       (c) That the child has been removed or will, at the time of the hearing, have been
           removed from the custody of the parent for a period of at least six months
           pursuant to a finding of dependency;
       (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


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No. 	32084-7-111 cons. w/32089-8-111
In re Welfare of AKJ.M. W.


             reasonable 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. A parent's failure to
             substantially improve parental deficiencies within twelve months following
             entry of the dispositional order shall give rise to a rebuttable presumption that
             there is little likelihood that conditions will be remedied so that the child can
             be returned to the parent in the near future.
       (f) 	 That continuation of the parent and child relationship clearly diminishes the
             child's prospects for early integration into a stable and permanent home.

       RCW 13.34.180(1). Elements (d) and (e) are disputed here.

      We must affirm findings of fact under RCW 13.34.180(1) if supported by

substantial evidence from which a rational trier of fact could find the necessary facts by

clear, cogent and convincing evidence. In re Dependency of KS.C., 137 Wn.2d 918,

925,976 P.2d 113 (1999). Evidence is substantial if it is sufficient to persuade a fair-

minded person of the truth of the matter asserted. S.J., 162 Wn. App. at 881. Clear,

cogent and convincing evidence exists when the ultimate fact at issue is "highly

probable." KS.C., 137 Wn.2d at 925. Because the trial court hears the testimony and

observes the witnesses, it is entitled to deference. In re Welfare of L.N.B.-L., 157 Wn.

App. 215, 243, 237 P.3d 944 (2010). As such, we will not judge the credibility of

witnesses or weigh the evidence. Id. The party claiming error has the burden of

showing that a finding of fact is not supported by substantial evidence. Fisher

Properties v. Arden-Mayfair, 115 Wn.2d 364, 369, 798 P.2d 799 (1990).

      First, E.A. contends DSHS failed to meet its burden to understandably necessary

offer or provide services according to RCW 13.34.180(1 )(d). Specifically, she argues

DSHS failed to offer psychiatric services and medication management. To meet its


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I        No. 32084-7-111 cons. wI 32089-8-111
         In re Welfare of AK.J.M.W.


I        burden under RCW 13.34.180(1)(d), DSHS must show it offered or provided E.A. the

I        required services and that EA. either failed to engage or waived her right to such
I
I        services. In re Welfare of S. V.B., 75 Wn. App. 762, 770, 880 P.2d 80 (1994). The

I        services offered or provided must be tailored to the individual parent's needs. In re

I        Dependency of T.R., 108 Wn. App. 149, 161,29 P.3d 1275 (2001). The court may

         consider any service received, from whatever source, if it relates to the potential

I,       correction of a parental deficiency. In re Dependency of D.A, 124 Wn. App. 644, 651­
I
I        52, 102 P.3d 847 (2004). A parent's unwillingness or inability to avail herself of 


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


         of whether the elements of RCW 13.34.180 are established. In re Dependency of C. T., 


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


                Here, DSHS provided a mental health evaluation, mental health counseling, and

         a psychological evaluation. E.A. argues she needed psychiatric services versus

         psychological services. Psychiatrist Dr. Rodenberger started an evaluation and then

         requested background information from DSHS, which DSHS readily provided. Dr.

         Rodenberger agreed to meet with EA. again, but asked she participate in a substance

         abuse evaluation first. EA. did not participate in the substance abuse evaluation, did

         not return to the psychiatrist,2 and moved out of state to live in Texas, where her

         location was unknown at trial. If a parent is unwilling or unable to make use of the

         services offered or provided like E.A., DSHS is not required to offer other services that


                2 Testimony that EA. returned two months later for a medical marijuana card
         was stricken.

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In re Welfare of AK.J.M.W


might have been helpful. In re Dependency of S.M.H., 128 Wn. App. 45, 54,115 P.3d

990 (2005).

       Thus, substantial evidence supports the trial court's finding that DSHS offered all

reasonably available, necessary services in an attempt to correct the mother's parental

deficiencies. The mother participated in, but did not finish, a psychiatric evaluation and

was unable to make necessary change in a timely manner.

       Second, E.A contends DSHS failed to prove by substantial evidence that little

likelihood existed her parental deficiencies would be remedied so AW. could be

returned to her in the near future under RCW 13.34.180(1 }(e). E.A argues proper

services were not offered. DSHS must prove "that 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. In re Welfare of M.R.H., 145 Wn. App. 10,27, 188

P.3d 510 (2008).

       If E.A is unable to resolve 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. In re Welfare of T.B., 150 Wn. App. 599, 608. 209

P.3d 497 (2009). DSHS must still prove it is highly probable the parent would not

improve in the near future. Id. One factors the court may consider is, "Psychological

incapacity or mental deficiency of the parent that is so severe and chronic as to render

the parent incapable of providing proper care for the child for extended periods of time



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In re Welfare ofA. K.J. M. W


or for periods of time that present a risk of imminent harm to the child, and documented

unwillingness of the parent to receive and complete treatment or documentation that

there is no treatment that can render the parent capable of providing proper care for the

child in the near future." RCW 13.34.180(1 )(e)(ii). "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 [DSHS] has satisfied RCW 13.34.180(1)(e)." T.B., 150 Wn.

App. at 608. Even if some evidence suggests E.A. may eventually be capable of

correcting her deficiencies, termination is still appropriate where the deficiencies will not

be corrected within the foreseeable future. In re Welfare of A.G., 155 Wn. App. 578,

590,229 P.3d 935 (2010).

       As discussed above, DSHS offered necessary services to E.A. but she was

unwilling to make use of them in the almost two years A W. was in out-of-home care.

E.A. unpersuasively argues her parental deficiencies were corrected. Our record belies

that argumentative assertion. She continued to struggle with anger management and

drug use, left Washington State, and her whereabouts were unknown at trial. Instead,

the overwhelming evidence shows all necessary services were offered without sufficient

progress to suggest E.A.'s parental deficiencies would likely be remedied in the

foreseeable future. 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. T.B., 150




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In re Welfare of AK.J.M.W


Wn. App. at 608. Because E.A failed to produce evidence rebutting the presumption,

substantial evidence supports the court's RCW 13.34.180(1 )(e) finding.

                    B. Best Interest Finding Under RCW 13.34.190(2)

       The issue is whether substantial evidence supports the court's finding it was in

AW.'s best interest to terminate the parent's parental rights under RCW 13.34.190(2).

       In addition to a finding the six statutory elements of RCW 13.34.180(1) by clear,

cogent and convincing evidence, the second step requires the trial court to find by a

preponderance of the evidence that termination is in the child's best interest. RCW

13.34.190(2). "Only if the first step is satisfied may the court reach the second." AB.,

168 Wn.2d at 911. We afford a trial court broad discretion in making the "best interests"

determination, and its decision receives great deference on review. In re Welfare of

Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979). Whether termination is in a

child's best interests is based on the particular facts and circumstances of each case.

In re Dependency of A V.D., 62 Wn. App. 562, 572, 815 P.2d 277 (1991). When a

parent has failed to rehabilitate over a lengthy dependency period, a court is fully

justified in finding termination to be in a child's best interests rather than leaving the

child "'in the limbo of foster care for an indefinite period'" while the parent seeks further

rehabilitation. T.R., 108 Wn. App. at 167 (quoting In re Dependency of AW, 53 Wn.

App. 22,33,765 P.2d 307 (1988»).

       Here, the evidence overwhelmingly shows termination is in AW.'s best interest.

The GAL recommended termination of the parents' parental rights. The social worker



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In re Welfare of A.K.J.M.W


similarly concluded termination of parental rights was in the child's best interests.

Treatment providers voiced concerns about E.A. and LW.'s anger management and

drug use, and E.A.'s mental health challenges. And lastly, little progress was shown by

either parent during the two-year dependency period. The court's finding was

supported by substantial evidence. We acknowledge E.A. and LW. argue alternative

placement options were available that might preclude a best interests finding. But, no

relatives stepped forward as potential guardianship resources. There was no testimony

regarding potential guardianship, no evidence of the availability of a guardianship

placement. Thus, this argument lacks merit.

                           C. Ineffective Assistance of Counsel

       The issue is whether E.A. and LW. were denied effective assistance of counsel.

They contend their attorneys were deficient in failing to request a continuance. They

argue, if a continuance had been granted, other placement options for A.W. could have

been explored.

       Washington law guarantees the right to counsel in termination proceedings.

RCW 13.34.090(2); InreDependencyofV.R.R., 134 Wn. App. 573, 581, 141 P.3d 85

(2006). This right includes the right to effective legal representation. V.R.R., 134 Wn.

App. at 580. No definitive Washington case has expressly held we apply the same test

for ineffective assistance of counsel in civil parental termination cases that we apply in

criminal cases. Division One of this court in S.M.H. applied the Stricklancf3 standard to


       3   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 LEd. 2d 674
(1984).
                                            18 

No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of A.K.J.M. W.


determine ineffective assistance of counsel in a termination case and we adhere to that

approach. S.M.H., 128 Wn. App. at 61. To prevail on their ineffective assistance claim,

E.A. and L.W. must show (1) deficient performance by counsel and (2) resulting

prejudice. S.M.H., 128 Wn. App. at 61; Strickland, 466 U.S. at 687. We strongly

presume effective assistance. State v. McNeal, 145 Wn.2d 352, 362, 37 P .3d 280

(2002). Generally, performance is deficient when it falls below an objective standard of

reasonableness, but not when undertaken for legitimate reasons of trial strategy or

tactics. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003).

       Here, both E.A. and L.W.'s attorneys requested a continuance in May 2013

because "[m]ultiple relatives have emerged and are willing to be a placement for the

child." CP at 144, 148. The court denied the request due to the "length of time child

has been out of the home, length of trial, lack of likelihood there will be a significant

change in circumstances of the parents [sic] situation, and best interests of the child."

CP at 140. The following month the court declared a mistrial due to a conflict of

interest. Trial was rescheduled before another judge for September 16, 2013. Our

record shows no alternative placement option was established during this three month

delay, suggesting infeasibility. Given the apparent lack of options and the court's prior

denial of the parents' request for a continuance, a legitimate reason existed for

counsel's decision not to request another continuance. Without deficient performance,

E.A. and L.W.'s ineffective assistance of counsel claim fails.




                                             19 

I
I   ~

    ii 
   No. 32084-7-111 cons. w/32089-8-111
    J
    I      In re Welfare of A.K.J.M.W. 



I
I
                  E.A and L.W. unpersuasively argue the absence of information regarding


I          possible placement defeats a finding under RCW 13.34.180(1 )(f) U[t]hat continuation of

i          the parent and child relationship clearly diminishes the child's prospects for early

I
~
           integration into a stable and permanent home." RCW 3.34.180(1 )(f) emphasizes a



I
           limited trme frame for establishing permanency for a child by use of the phrase "early

           integration" into a stable and permanent home. The focus is "the parent-child

I          relationship and whether it impedes the child's prospects for integration, not what


Ii         constitutes a stable and permanent home." In re Dependency of K.S.C., 137 Wn.2d

           918,927,976 P.2d 113 (1999).
I                 As noted, our record shows no alternative placement option was established.

           Instead, our record shows no petition for guardianship was filed and no evidence exists
I!         of the availability of a guardianship placement. Instead, the record shows AW.'s
I!         potential for adoption into the foster families home where she has bonded, providing

I          AW. needed permanency. Accordingly, substantial evidence supports the court's

           finding that continuation of the parent-child relationship diminished AW.'s prospects for

I          integration into a stable and permanent home.
I
!
                                                 D. Public Trial

                  The issue is whether E.A was denied her right to a public trial. For the first time

I          on appeal, she contends the courthouse was locked and not open to the public during a
I
!I         portion of the termination trial.
!
!




                                                       20 

No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AK.J.M. W.


       "Generally, a party asserting a constitutional error for the first time on appeal

must show that the alleged error actually affected that party's rights at trial." In re

OependencyofJ.AF., 168 Wn. App. 653,659,278 P.3d 673 (2012) (citing RAP

2.5(a}(3». In J.AF., Division One of this court declined to reach a similar challenge as

E.A.'s because the parents did not object to the alleged closure at trial. Id. Because

E.A. does not make a showing of how the alleged error affected her rights at trial, we

decline to reach this issue.

       Nevertheless we note no closure occurred. E.A.'s sole argument is based on a

discussion between DSHS's counsel and the court. DSHS's counsel stated, "Your

Honor that's my last witness that I had scheduled for the day and I might-I'm going to

have to -- probably a bit of a challenge because I know the security closes at 4:00." RP

at 112. The judge responded, "That's fine. As long as I have you out the door by 4:30."

RP at 113. E.A. argues this colloquy shows the courtroom was closed to the public

from 4:00 to 4:30. Her argument is a speculative assertion. The court was concerned

the parties needed to exit the building by 4:30. Without showing a closure, E.A. cannot

meet the threshold element of a public trial right violation argument. See State v. Smith,

181 Wn.2d 508, 513, 334 P.3d 1049 (2014) (courts mustfirst look to whether '''there is

in fact a closure of the courtroom"') (quoting State v. Sublett, 176 Wn.2d 58, 92, 292

P.3d 715 (2012) (Madsen, C.J." concurring».




                                             21 

 No. 32084-7-111 cons. w/32089-8-111
 In re Welfare of AK.J.M. W.


                                  E. Due Process Challenge

        The issue is whether L.W.'s constitutional due process rights were violated. L.W.

 contends he was denied due notice when the trial was rescheduled following the

 mistrial. We review de novo whether a proceeding violated constitutional due process.

 In re Welfare of J.M., 130 Wn. App. 912, 920, 125 P.3d 245 (2005).

        Courts balance three factors when examining process sufficiency: (1) the private

 interest at stake, (2) the risk that the procedure used will result in error, and (3) the

State's interest in retaining the procedure used and the fiscal or administrative burden if

additional safeguards were provided. In re Dependency of AG., 93 Wn. App. 268,278­

79,968 P.2d 424 (1998). Due process protections in a termination hearing include a

strict burden of proof, the right to notice, and an opportunity to be heard and defend. In

re Interest of Infant Child Skinner, 97 Wn. App. 108, 114, 982 P.2d 670 (1999).

        Our record does not reflect a notice violation. A summons was filed on July 19,

2012, advising L.W. of his legal rights, including his right to counsel. On July 20,2012,

L.W. was personally served with the notice and summons and termination petition as

required by RCW 13.34.180(1). He was then appointed counsel. In June 2013, the

court declared a mistrial due to a conflict of interest. The termination petition was not

. dismissed but was assigned to a new judge with trial rescheduled for September 16,

2013. L.W.'s counsel approved the trial date. L.W. claims he did not receive notice, but

in addition to his counsel, L.W. received notice from a Texas social worker of the

rescheduled trial date. L.W. presents no authority supporting his claim that DSHS was



                                              22 

No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A. K.J. M. W.


required to send him notice of a status conference order approved by his attorney. Due

process is satisfied when a party is properly served with a notice and summons and

petition. Given all, we conclude due process concerning notice was satisfied under the

circumstances of this case.

      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.



WE CONCUR: 





                                                  Lawrence-Berrey, J.




                                           23 

