        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

    In the Matter of the Dependency of T.M.D.
    andTT.D.,                                              No. 69023-0-1
                                                           (consolidated with
    STATE OF WASHINGTON,                                   No. 69024-8-1)
    DEPARTMENT OF SOCIAL AND
    HEALTH SERVICES,                                       DIVISION ONE

                        Respondent,                        UNPUBLISHED OPINION

                  v.



    DEMETRIUS JONES,
                                                                                 ££   coo


                        Appellant.                         FILED: September 23, 2043 3
.                      „_   .                                                         ~n



          Appelwick, J. — For three years, Jones failed to make progress in addressjjig!
    her mental health and chemical dependency issues, and continued to minimize fi©r owfc

    needs and her children's needs. The court terminated her parental rights for her two

    youngest children, T.M.D. and T.T.D. We affirm.

                                             FACTS


          This appeal arises from a court order terminating Demetrius Jones's parental

    rights for two of her children, T.M.D. (born October 4, 2005) and T.T.D. (born October

    31, 2007).1

          T.M.D. was born prematurely and suffers from fetal alcohol syndrome. She has

    developmental delays and requires a high level of care.       She receives speech and

    mental health therapy weekly, as well as developmental services in school. T.T.D. was

    also born prematurely and has slight adaptive delays, such as a disinterest in potty




          1 The father's parental rights were terminated by default on February 23, 2012,
    and were not the subject of the order at issue here.
No. 69023-0-1/2




training and frustration dressing himself. By the time of trial, T.T.D. made significant

progress and no longer required speech or physical therapy.

       Jones has two older sons, J.P. (born August 1, 1996) and T.D. (born July 2,

2000). T.D. has special needs and some learning disabilities, but is functioning well.

J.P. is an honor student and thriving. Jones is involved in her two older boys' education

and puts a priority on school.   T.M.D.'s and T.T.D's CASA (court appointed special

advocate) reported, "I am very impressed with how she has raised two such nice young

men as a single mom."

       On March 25, 2009, the court entered a dependency order for all four children,

because of ongoing concerns about their health and safety, as well as Jones's failure to

attend to her younger children's medical needs. Specifically, T.T.D. had severe diaper

rash and Jones had missed several important doctors' appointments for the children.

Jones told the court that she had been diagnosed with cancer and admitted that it

affected her parenting. She agreed that dependency was in the best interests of her

children.


       The court ordered Jones to complete the following services: public health nurse

and family preservation services once T.M.D. and T.T.D. returned home; drug/alcohol

assessment and recommended treatment; and a psychological evaluation with a

parenting component. The court subsequently ordered Jones to attend her children's

medical appointments, submit to random urinalysis testing for 30 days, and ensure her

children received recommended services.


       T.M.D. and T.T.D. were placed in foster care.        Both also began attending

Childhaven, a developmental preschool.      The CASA reported that T.M.D.'s speech
No. 69023-0-1/3




improved significantly during the dependency, though she still showed signs of delay

and would need consistent treatment throughout childhood. The CASA also reported

that T.T.D. appeared to be on track developmentally and was thriving in class. The two

older boys remained in Jones's care.

      At a June 2009 initial progress review, the court found Jones in partial

compliance with court ordered services.    However, the court noted that Jones made

very limited progress toward correcting her parental deficiencies. She completed drug

and alcohol screening, but had not finished her psychological evaluation. Also in June

2009, Jones was diagnosed as alcohol and cannabis dependent.           She expressed

willingness to participate in the recommended intensive outpatient treatment.      She

began treatment with New Traditions, but made limited progress and was discharged in

November 2009 for inconsistent attendance.

      On July 9, 2009, Jones completed a psychological evaluation with Dr. Carmela

Washington-Harvey.       Washington-Harvey diagnosed Jones with depression and

personality disorder, not otherwise specified (NOS). She indicated that Jones exercised

poor judgment in both her personal and parenting decisions, as evidenced by chronic

neglect of her younger children. Washington-Harvey also conducted a parent-child

observation as part of the evaluation. She noted that Jones was "quite appropriate with

[T.M.D. and T.T.D.] She spoke calmly and read stories to her daughter. She allowed

her son to explore the room and play independently. She was watchful enough to keep

her children safe.    They responded well to her attentions."   However, Washington-

Harvey observed, Jones sucked her thumb and seemed preoccupied or even

depressed at times.
No. 69023-0-1/4




       Washington-Harvey recommended that Jones participate in drug treatment,

attend parenting classes with a focus on medically fragile children, participate in mental

health counseling, and develop a strong support network for her and her children. She

believed it "extremely doubtful that Ms. Jones will be able to parent her two younger

children without the benefit of the above services and demonstration that she can

successfully apply what she has learned to the parenting of her children and to her own

self care in all aspects of her life." (Emphasis in original.)

       In a November 2009 permanency planning order, the court found that Jones

complied with court ordered services. She completed the psychiatric evaluation and

began attending parenting classes, as well as a drug and alcohol assessment/relapse

prevention program. However, an April 2010 dependency review hearing order found

that Jones had five months of no treatment, though she reengaged in intensive

outpatient chemical dependency treatment just before the hearing. She tested positive

for marijuana six times in 2010. Likewise, she attended mental health counseling, but

only once a month. The order explained that the goal for Jones was consistency and

follow through. The order also noted that Jones was providing good care for her two

older boys.

       Subsequent review hearings found Jones in partial compliance with the court

ordered services. In June 2011, the court wrote that Jones received very limited mental

health treatment and stopped drug and alcohol treatment in December 2010, but

resumed in April 2011.        Jones also attended only about 20 percent of T.M.D.'s

appointments, even though she was ordered to attend 80 percent of them. And, in the

90 days before the June hearing, she went to only two out of 20 possible appointments.
No. 69023-0-1/5




         On November 29, 2011, after successive orders finding Jones noncompliant or in

partial compliance with court ordered services, the State petitioned to terminate her

parental rights for T.M.D. and T.T.D.         The dependencies for J.P. and T.D. were

eventually dismissed before the termination trial began.

         In an April 2012 psychiatric evaluation shortly before trial, Dr. Joanne Solchany

diagnosed Jones with chronic post traumatic stress disorder and personality disorder,

NOS. Jones told Solchany that there was often domestic violence between her and her

long-term boyfriend, and she was usually the instigator. Solchany also observed Jones

with T.T.D. and T.M.D. She reported that Jones appeared bored and disengaged. The

children seemed comfortable around Jones, but looked to the visit supervisor for their

limits. Solchany concluded that Jones "does not seem to have the underlying emotional

strength and substance to keep things stable in her life or care for her two younger

children and the needs that they have."         She recommended two years of intensive

mental health therapy before Jones would be able to successfully parent T.M.D. and

T.T.D.


         At the termination trial, the children's social worker testified that Jones's parental

deficiencies included unmet mental health needs, untreated chemical dependency,

minimization of her own needs and those of her children, and social isolation.             The

social worker also testified that Jones inconsistently attended her mental health and

chemical dependency appointments.          The social worker explained that Jones would

start treatment, then stop for several months, start up again right before court

appearances, then stop again. In the eighteen months preceding trial, Jones went to

only seven counseling appointments.
No. 69023-0-1/6




      The trial court found that Jones showed little, if any, progress in correcting her

parental deficiencies. On May 11, 2012, the trial court ordered termination as to both

children. Jones appeals.

                                      DISCUSSION


      Parents have a fundamental liberty interest in the care and welfare of their

children. In re Dependency of Schermer, 161 Wn.2d 927, 941-42, 169 P.3d 452 (2007).

But, the State has an interest in protecting the physical, mental, and emotional health of

children, as well. Ja\ To terminate parental rights, the State must first prove the six

elements of former RCW 13.34.180(1) (2009) by clear, cogent, and convincing

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

Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown

by the evidence to be highly probable. In re Dependency of K.R., 128Wn.2d 129, 141,

904 P.2d 1132 (1995). The six requirements are:

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

      (b) That the court has entered a dispositional order pursuant to
      RCW 13.34.130;

      (c) That the child has been removed or will, at the time of the hearing,
      have been removed from the custody of the parent for a period of at least
      six months pursuant to a finding of dependency;

      (d) That the services ordered under RCW 13.34.136 have been expressly
      and understandably offered or provided and all necessary services,
      reasonably available, capable of correcting the parental deficiencies within
      the foreseeable future have been expressly and understandably offered or
      provided;

      (e) That there is little likelihood that conditions will be remedied so that the
      child can be returned to the parent in the near future[; and]
No. 69023-0-1/7


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

Former RCW 13.34.180(1). Once these six statutory elements are met, the State must

still prove by a preponderance of the evidence that termination is in the best interests of

the child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d

1104(2010).

       On appeal, findings of fact must be supported by substantial evidence in light of

the clear, cogent, and convincing standard. State v. Broadawav, 133 Wn.2d 118, 131,

942 P.2d 363 (1997).      "If there is substantial evidence which the lower court could

reasonably have found to be clear, cogent and convincing, an appellate court should not

disturb the trial court findings. Deference paid to the trial judge's advantage in having

the witnesses before him is particularly important in deprivation proceedings." In re

Welfare of Aschauer. 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). Unchallenged findings

of fact are verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d

1227(2001).

       Jones argues that the State failed to prove three of the statutory prerequisites to

termination: former RCW 13.34.180(1)(d), (e), and (f). Specifically, she argues that the

State (1) failed to produce substantial evidence that she could not meet T.T.D.'s special

needs in the near future, (2) failed to prove that it offered parenting classes for special

needs children, and (3) failed to produce evidence to support the trial court's finding that

the children were adoptable.        She also contends that the court erred in finding

termination to be in the best interests of the children.2

       2 She assigns error to findings of fact 2.10, 2.13, 2.14, 2.16, 2.17, 2.18, 2.19,
2.26, 2.27, 2.28, 2.30, 2.31, 2.32, 2.33, 2.34, 2.37 and conclusions of law 3.2 and 3.3.
No. 69023-0-1/8




  I.   Likelihood that Conditions Will Be Remedied

       Jones argues that the State failed to produce clear, cogent, and convincing

evidence that there was little likelihood that Jones's parental deficiencies—specifically

related to meeting T.T.D.'s needs—could not be corrected within the near future. Jones

contends that her unresolved mental health and substance abuse issues were not of


such magnitude that rendered her unfit to parent T.T.D.         She points out that her

parenting deficiencies were not severe enough to warrant the State seeking termination

of her parental rights for the older boys, one of whom has special needs. Essentially,

she argues that the trial court could have terminated her parental rights as to T.M.D.,

but then she could successfully parent T.T.D. because he had only limited adaptive

delays and did not need specialized appointments.

       Former RCW 13.34.180(1)(e) requires the State to 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." The focus of this factor is whether parental deficiencies have been

corrected.   In re Dependency of T.R.. 108 Wn. App. 149, 165, 29 P.3d 1275 (2001).

The time frame for determining 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).

       Jones is correct that T.T.D. made significant progress in overcoming his adaptive

delays during dependency. He consistently attended Childhaven for three years during

dependency. He received speech services and physical therapy, and began to thrive in

a stable, structured environment.     Despite this progress, at four and a half, T.T.D.

continued to struggle with potty training and dressing himself. Though T.T.D. does not


                                                8
No. 69023-0-1/9




require the same high level of care as T.M.D., he nonetheless needs consistent well-

child and dental appointments. T.T.D.'s ongoing need for routine and structure is plain

from the record, and Jones does not challenge the trial court's finding to that effect.

       Mental illness alone is not proof a parent is unfit. T.L.G., 126 Wn. App. at 203. A

court must examine the relationship between mental condition and parenting ability. jcL

But, unrebutted evidence from two mental health counselors established that Jones's

mental health and substance abuse problems significantly affected her ability to parent

both of her younger children. In meeting with Washington-Harvey, Jones admitted to

being depressed, having suicidal thoughts, crying spells, sleep problems, and anger

control issues. Indeed, Washington-Harvey observed that Jones sucked her thumb and

seemed depressed during her interactions with T.M.D. and T.T.D. Washington-Harvey

also reported that Jones exercised poor judgment in both her parenting and personal

life choices. She believed it "extremely doubtful" that Jones would be able to parent

T.M.D. and T.T.D. without the benefit of drug treatment and mental health counseling.

       However, Jones failed to complete either recommended treatment program

during T.M.D. and T.T.D.'s dependency.         For instance, in June 2009, Jones was

referred to New Traditions, where she enrolled in a parenting class and intensive

outpatient chemical dependency treatment. She was discharged several months later

for inconsistent attendance and minimal progress. The discharge report recommended

that Jones still complete intensive substance abuse treatment and mental health

counseling.   In February 2010, Jones also began drug and alcohol treatment at the

Asian-American Chemical Dependency Treatment Services, dropped out in December

2010, and began treatment again in April 2011. She tested positive for marijuana six
No. 69023-0-1/10




times in 2010, and again in February 2012.3 Jones also went to Healthpoint for mental

health counseling in November 2009. Though Jones testified that she attended her

appointments every two weeks as scheduled, the record showed that she only attended

seven sessions in the 18 months preceding trial. Likewise, in 2011, the State provided

for Jones to have 90 weekly mental health therapy sessions with counselor Martha

Davis. However, Jones chose not to use that service.

      At the time of trial, Solchany concluded that Jones still needed two years of

consistent mental health therapy. However, Solchany noted that Jones "vacillated with

her compliance to court ordered services, her visitation with [T.T.D. and T.M.D.], and

her commitment to their developmental and medical care." In observing Jones interact

with T.T.D. and T.M.D., Solchany reported that Jones seemed to lack energy to

structure or contain the children's play. Without intensive treatment, Solchany believed

Jones would be unable to parent T.M.D. and T.T.D., because she did not "have the

underlying emotional strength and substance to keep things stable in her life or to care

for her two younger children and the needs that they have."

      Though T.T.D. does not require the same level of attention as T.M.D., this

evidence establishes that Jones's unresolved mental health issues prevent her from

providing the routine and structure that T.T.D. requires to thrive. While Jones may have

been able to successfully parent her older children, Washington-Harvey and Solchany

believed her incapable of parenting both her younger children without intensive mental

health and chemical dependency treatment.       For young children, waiting even one



      3 Jones testified this was a false positive, but was not able to produce
corroborating evidence.


                                              10
No. 69023-0-1/11




additional year for a parent to potentially remedy his or her deficiencies may be too

long. In the Matter of A.W.. 53 Wn. App. 22, 32, 765 P.2d 307 (1988); UL, 108 Wn.

App. at 164-65. T.T.D. already waited several years for his mother to remedy her

parental deficiencies, but she failed to do so.        Waiting another two years was well

beyond the near future for four and a half year old T.T.D.

       Substantial evidence supports the finding that the State proved by clear, cogent,

and convincing evidence that there was little likelihood that conditions would be

remedied so that T.T.D. could be returned to Jones in the near future.


 II.   Necessary and Reasonable Services

       Jones argues that all the necessary and reasonably available services were not

offered to her, as required by former RCW 13.34.180(1)(d).              Washington-Harvey

recommended that Jones attend parenting classes focused on caring for medically

fragile children.   Jones argues that the State never offered her any such parenting

classes, despite knowing of the recommendation for over two years. Jones also argues

that the State failed to show that she was expressly and understandably offered

education or training for T.T.D.'s special needs.            She points out that there is

considerable evidence establishing the State's effort to educate her about T.M.D.'s

special needs, but the record shows minimal effort to do the same for T.T.D.

       Former RCW 13.34.180(1 )(d) requires that the State prove by clear, cogent, and

convincing   evidence    that   court   ordered   services    "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."           The State must offer services


                                                  11
No. 69023-0-1/12




tailored to each parent's needs. In re Dependency of D.A.. 124 Wn. App. 644, 651, 102

P.3d 847 (2004). To meet this burden, the State must show either that it offered the

parent remedial services but she did not avail herself of them, or that the parent waived

her right to such services. In re Welfare of S.V.B., 75 Wn. App. 762, 770, 880 P.2d 80

(1994). A parent's unwillingness or inability to make use of provided services excuses

the State from offering extra services that might have been helpful. In re Dependency

of PAD.. 58 Wn. App. 18, 26, 792 P.2d 159 (1990).

       The State produced evidence that it offered Jones Public Health Nurse (PHN)

and Intensive Family Preservation (IFP) services in 2008 after T.T.D.'s birth.    These

programs addressed infant care basics, as well as parenting and development

education. Jones initially engaged with both services, but over time, her attendance

was inconsistent and her progress minimal. She was eventually discharged from the

IFP service for lack of participation. The State argues that Jones's failure to take full

advantage of these services excuses its obligation to provide additional services, like

parenting classes for medically fragile children.   However, the PHN and IFP services

were offered before the court entered a dependency order for T.M.D. and T.T.D. There

is no evidence that the State offered the parenting classes specifically recommended by

Washington-Harvey.    Nor did the State show that such services were not reasonably

available.


       Even where the State inexcusably fails to offer a service to a willing parent,

termination is nevertheless appropriate if the service would not have remedied the

parent's deficiencies in the foreseeable future.    In re Welfare of Hall, 99 Wn.2d 842,

850-51, 664 P.2d 1245 (1983).      This means that when the record establishes that


                                               12
No. 69023-0-1/13




offering services would have been futile, the trial court can make a finding that the State

offered all reasonable services. In re Welfare of Ferguson, 32 Wn. App. 865, 869-70,

650 P.2d 1118 (1982), reversed on other grounds. 98 Wn.2d 589, 656 P.2d 503 (1983).

What is considered the foreseeable future depends on the age of the child. T.R., 108

Wn. App. at 164.

       In Hall, the Supreme Court held that the State failed to provide suggested

remedial services. 99 Wn.2d at 850. However, the court did not reverse, because there

was sufficient evidence in the record that services would not have made the father a

good parent in the foreseeable future. Jd. at 851. Testimony established that correcting

his parental deficiencies would require great effort and the father admitted he could not

care for his child immediately, id. Because his son was four at the time, parenting

training would not remedy the father's deficiencies in the child's foreseeable future. kL

at 844, 851. Likewise, in T.R., the mother was provided numerous services for several

years, but still did not possess the necessary skills to parent her child, who was six

years old at the time.     108 Wn. App. at 164-66.        Therefore, substantial evidence

supported the trial court's finding that there was little likelihood the mother could acquire

adequate parenting skills in the child's foreseeable future. ]cL at 166.

       Jones's parental deficiencies included her untreated mental health and chemical

dependency issues. In 2009, Washington-Harvey believed it "extremely doubtful" that

Jones could parent her younger children without the benefit of mental health counseling

and chemical dependency treatment. The record clearly shows that the State offered

Jones these services, but she failed to consistently engage in or complete any of them.

Jones's mental health issues clearly remained unresolved at the time of trial, because


                                                 13
No. 69023-0-1/14



Solchany concluded that Jones needed an additional two years of intensive, consistent

mental health therapy before she could successfully parent T.M.D. and T.T.D.

      Jones also continued to minimize her children's needs and missed important

appointments for them, despite the State offering her parenting classes through New

Traditions. The State also offered daycare for her older child, T.D., so she could more

easily attend T.M.D.'s speech and mental health therapy appointments.          But, she

elected not to use this service. Jones was encouraged to participate in T.M.D.'s and

T.T.D.'s education, development, and therapy at Childhaven.       The children's social

worker emphasized to Jones that it was imperative that she show interest and ability to

attend the children's therapy, doctor, and school related appointments. However, Jones

visited the children only once at Childhaven. Likewise, Jones attended only 20 percent

of T.M.D.'s appointments, despite being ordered to attend 80 percent of them. In the 90

days before the court's June 2011 hearing, Jones attended only two out of 20 possible

appointments.

      T.M.D. and T.T.D. waited three years in foster care for Jones to correct her

parental deficiencies, but she failed to do so. The trial court expressed concern about

the amount of time the two children had already spent in out-of-home care.          The

children's social worker also testified that this ongoing "limbo" and impermanency was

harmful to the children. To wait another two years or longer is beyond T.M.D.'s and

T.T.D."s foreseeable future.

       In sum, Jones's parental deficiencies with respect to her mental health and

chemical dependency had not been addressed due to her failure to utilize the available

services over a three year period. At the time of trial, these deficiencies could not be


                                              14
No. 69023-0-1/15




remedied within the foreseeable future relative to the children's ages. This is sufficient

for us to conclude that the failure to provide parenting classes specifically tailored for

T.M.D.'s and T.T.D.'s special needs is not a bar to termination. Those classes would

not have remedied Jones's other deficiencies.

 III.   Continuation of the Parent-Child Relationship

        Jones argues that the State failed to meet its burden of proving by clear, cogent,

and convincing evidence that continuation of the parent-child relationship clearly

diminishes the child's prospects for adoption.       Specifically, she asserts that a social

worker's testimony that the children were adoptable is not enough—the State must call

an adoption specialist. Jones cites an Arkansas case in which an adoption specialist

testified that though the children had some developmental delays, they still had

adoption prospects. Campbell v. Ark. Dept. of Human Servs.. 2013 Ark. App. 84, 2013

WL 541095, at *7.     However, that case did not hold that an adoption specialist was

required to testify in order to establish the children's adoption prospects. Jones cites no

Washington case to that effect, either.

        Indeed, in In re Dependency of K.D.S., the father's social worker testified

regarding the child's adoption prospects and the father's inability to understand his

daughter's needs. 176 Wn.2d 644, 648-49, 294 P.3d 695 (2013). The court noted that

the plain language of former RCW 13.34.180(1)(f) merely requires the trial court to find

that the continued parent-child relationship diminishes the child's prospects of

integration into a stable and permanent home. JoV at 658. The State does not need to

prove that a stable and permanent home is available at the time of termination. ]d




                                                15
No. 69023-0-1/16




      Both T.M.D. and T.T.D. require consistency and structure, which developmental

childcare and their foster parents have been able to provide. Jones's inability to follow

through with mental health and substance abuse treatment significantly impacts her

ability to provide for their ongoing needs. The social worker testified that the children

have adoption prospects and need the permanency of adoption. She explained that

continuing to live in foster care and see their mother made adoption difficult.

Substantial evidence supports the finding that the State proved by clear, cogent, and

convincing evidence that a continuing parent-child relationship diminishes the likelihood

that T.M.D. and T.T.D. will be prepared to integrate into a stable and permanent home.

IV.    Best Interests of the Children

       Jones argues that termination is not in her children's best interests, because they

are bonded to her and their older brothers. Jones maintains that separating T.M.D. and

T.T.D. from their family will cause psychological and emotional harm.              Whether

termination is in the children's best interests need be proved by only a preponderance

of the evidence.    A.B.. 168 Wn.2d at 912.          The overriding goal of a termination

proceeding is to serve the children's best interests. Aschauer, 93 Wn.2d at 695. Where

a parent has been unable to remedy his or her parental deficiencies over a lengthy

dependency period, a court is "'fully justified'" in finding termination in the child's best

interests. IR, 108 Wn. App. at 167 (quoting A.W.. 53 Wn. App. at 33).

       Before dependency, T.M.D. and T.T.D. languished in Jones's care. Jones then

had three years to address her mental health issues, complete chemical dependency

treatment, and demonstrate her commitment to T.M.D.'s and T.T.D.'s needs. She was

unable to do so. She persistently failed to follow through and continued to miss critical


                                                16
No. 69023-0-1/17




appointments for the children. Meanwhile, T.M.D. and T.T.D. began to thrive from the

therapy, care, routine, and structure provided by Childhaven and their foster family. We

are always reluctant to deprive parents of rights with respect to their children, and it is

particularly sad when the parent cares for the children. However, we cannot ignore the

children's needs. We hold that the trial court did not err in concluding that terminating

Jones's parental rights was in T.M.D.'s and T.T.D.'s best interest.

      We affirm.




WE CONCUR:




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                                                17
