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         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In the Matter of the Dependency of               No. 74641-3-1 (consolidated
                                                 (with No. 74642-1-1)
E.A.S. DOB: 09/16/03
E.M.E.S. DOB: 06/22/05,                          DIVISION ONE


                    Minor Children,

STATE OF WASHINGTON
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

                     Respondent,

                    v.

                                                 UNPUBLISHED OPINION
CHRISTIANA OSTRANDER,

                     Appellant.
                                                 FILED: October 3, 2016

      Mann, J. — After a dependency of more than a year and a three-day trial, the

juvenile court entered an order terminating the appellant mother's parental rights to two

of her children. The mother argues that the evidence does not support the court's

findings that: (1) the Department of Social and Health Services (the Department)
provided all necessary services to correct her parental deficiencies; (2) there was little
likelihood that conditions would be remedied so that the children could be reunited with
No. 74641-3-1/2



the mother in the foreseeable future; (3) the mother did not prioritize the children; and

(4) termination of parental rights was in the children's best interest. We conclude that

substantial evidence supports the court's findings of fact and those findings support the

order of termination. We affirm.

                                           FACTS

       E.A.S. was born on September 16, 2003. His sister, E.M.E.S., was born on June

22, 2005. In March 2014, when the children were ten and eight years old, they were

removed from their mother's care.1 The removal was based on multiple concerns

including: concerns about drug use by the mother and others in the home; the frequent

presence of multiple people, including strangers, in the home; the mother's mental

health; lack of parental supervision and food in the home; and the school attendance of

one of the children. The court entered an agreed order of dependency as to both

children in July 2014. In that order the mother stipulated that, in addition to a lack of

suitable housing, she had "substance abuse issue[s]" that needed to be addressed.2

The dependency order required the mother to obtain a drug and alcohol evaluation and

follow treatment recommendations, and to obtain a psychological evaluation with a

parenting component. The court also ordered the mother to participate in mental health

counselling, parenting classes, random urinalysis (UA) testing, and twice weekly sober

support meetings.




       1 A third child was removed from the mother's care at the same time. That child was
returned to the care of her father and the dependency action with respect to her was dismissed.

       2 Exhibit (Ex.) 7.
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No. 74641-3-1/3



      The children were placed in the care of the children's maternal grandmother who

lives in Snohomish County, Washington. Nevertheless, despite her awareness that it

might impede reunification efforts, within a few months the mother relocated from

Snohomish County to Southwest Washington. The mother maintained that moving

would enable her to find stable housing and have support from family and friends. The

mother's housing plans fell though, however, and she "house hopped" for approximately

eight months in the Vancouver, Washington area.3

      After she moved, the mother did not exercise her weekly visitation consistently.

Several visitation supervisors withdrew because of the mother's sporadic attendance.

Several hundred dollars' worth of train tickets purchased by the Department to transport

the mother to Snohomish County for her visitation went unused.

       In January 2015, the mother obtained part-time employment. In March of 2015,

she began a relationship with Shawn Dieter and moved into a two-bedroom mobile

home he shared with his daughter in Washougal, Washington. The same month, the

mother began working full-time transporting cars for auction.

      The only services required by the dependency order that the mother completed

were evaluations. The chemical dependency evaluator diagnosed the mother with

methamphetamine dependence, marijuana dependence, possible opiate dependence,

and recommended intensive outpatient treatment. Within the first few months after the

children were removed from her care, the mother submitted several urine samples that

tested positive for methamphetamines, opiates, and cannabis. Her subsequent tests



        RP(Nov. 16, 2015) at 14.
                                         -3-
No. 74641-3-1/4



were negative for drugs, though they were sporadic and she missed or declined a

number of scheduled UA tests.

      Social workers made referrals for drug treatment, parenting classes, and mental

health counseling both in Everett and Vancouver, Washington. The mother began drug

treatment in August 2014 and shortly after was deemed not amenable to treatment and

discharged. The treatment consisted of four sessions per week and she attended a

total of five sessions. The mother later participated in treatment between November

and April of 2014. She attended thirteen treatment sessions, but maintained that she

did not have a drug addiction and declined to provide urine samples on several

occasions. She elected not to continue treatment. According to one treatment provider,

because of her failure to recognize that she needed treatment, the mother was not

engaged in the treatment and made no progress.

      A clinical psychologist evaluated the mother in 2014. He diagnosed her with

post-traumatic stress disorder (PTSD) and depressive disorder. The evaluator was also

concerned about the mother's untreated drug issues and possible borderline personality

disorder. In addition to mental health counselling to work on depression and PTSD

issues, the evaluator recommended a medication evaluation, intensive outpatient drug

treatment, dialectical behavior therapy, a sober support group, and parenting classes.

The mother attended only one session of mental health counselling following the

evaluation.




                                         -4-
No. 74641-3-1/5



       In June 2015, the Department filed a petition to terminate the mother's parental

rights.4 At the time of the November 2015 trial on the Department's petition, the mother

was still living with Dieter and working part time. Both the mother and Dieter

acknowledged that their current housing would no longer accommodate them if the

children were returned to the mother. The mother also acknowledged that she

previously stipulated to having a substance abuse problem, but adamantly denied that

this was the case. Even though the opiate result indicated the presence of morphine,

not codeine, the mother insisted that she tested positive for opiates because of

medication she took to treat bronchitis. The mother further testified that she tested

positive for methamphetamine because her former boyfriend put the drug in her coffee

without her knowledge because he was "mad" at her.5 The mother stated that she only

agreed that she had a drug problem for purposes of the dependency because she was

"under the impression" that doing so would allow her more time to meet the

requirements in order to reunite with her children.6 She testified that she believed her

children were removed from her care because she made the social worker "upset."7

       Although she disagreed with the treatment recommendation, the mother testified

that she participated in drug treatment in 2014 and 2015. She said she was unable to

complete treatment in 2014 because of health problems and that she discontinued

treatment in 2015 because she "felt that finding [a] stable living environment and a full-



       4The petition also sought to terminate the parental rights of the children's biological
father. The court later found the father to be in default and his parental rights were terminated
by an August 2015 order. He is not a party to this appeal.
       5RP(Nov. 18, 2015) at 405.
       6RP(Nov. 16, 2015) at 22.
       7RP(Nov. 16, 2015) at 21.
                                              -5-
No. 74641-3-1/6



time income was more important than doing treatments."8 Instead, she said that since

the beginning of 2015 she has had a sponsor, who is also a personal friend, with whom

she meets in person or by telephone approximately twice a week. The mother

explained that she has a sponsor only because the Department required her to do so.

Shortly before trial, the mother completed an updated drug and alcohol assessment and

claimed that according to that updated evaluation, no drug treatment was

recommended. She did not acknowledge that the most recent evaluator issued an

amended report recommending intensive outpatient drug treatment based upon

information provided by the Department that she failed to divulge.

       The mother agreed that she had mental health issues including depression,

social anxiety, PTSD, and that she takes medication to treat depression. She said that

she participated in only one session of mental health counselling because it conflicted

with her "schedule" and it was not possible for her to be in "two places at once."9 The

mother also testified that she was not able to complete parenting classes due to health

issues and explained that she missed numerous urinalysis tests because of "schedule

conflicts."10

        Four social workers were assigned to the case during the dependency period.

According to their testimony, it was apparent that the mother loved the children and she

continued to visit them throughout the dependency, but her visitation was not consistent

and her engagement in the services offered by the Department was minimal. According

to the social worker assigned to the case at the time of trial, the mother had not made


       8RP(Nov. 16, 2015) at 25.
       9 RP (Nov. 16, 2015) at 27-28.
       10RP(Nov. 16, 2015) at 28.
No. 74641-3-1/7



any progress toward correcting her parental deficiencies. She failed to comply with the

court's dependency order and displayed a "lack of insight" regarding the issues that led

to the dependency.11

      The psychologist who evaluated the mother testified about numerous personality

and psychological factors that would negatively affect the mother's ability to safely

parent. He noted that while the mother professed to be family-centered, she failed to

recognize behaviors that were harmful to herself and the children. Due to her untreated

substance abuse, mental health issues, and poor decision-making, the evaluator did not

believe the mother was capable of safely and appropriately caring for her children. The

psychologist testified that his prognosis for the mother was "guarded," given her denial,

tendency to blame others, and inaction with regard to addressing the safety issues and

deficiencies that led to the Department's involvement.12 He testified that following

through on the recommendations with regard to drug treatment, parenting classes, and

counselling would be necessary to "even get on the path to reintegration."13

       The court entered orders terminating the mother's parental rights to both

children.14 She appeals.

                                           ANALYSIS

       The mother challenges the termination order, arguing that the Department failed

to present sufficient evidence to support several of the juvenile court's findings.




       11 RP(Nov. 16, 2015) at 137.
       12 RP (Nov. 17, 2015) at 192, 209, 212-13.
       13RP(Nov. 17, 2015) at 197.
       14 The court entered two separate orders that set forth identical findings.
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No. 74641-3-1/8



      Parents have 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).

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

reasons.'" A.J.R.. 78 Wn. App. at 229 (internal quotation marks omitted) (quoting In re

Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973)).

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

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

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

13.34.180(1) are established by clear, cogent, and convincing evidence. A.B.. 168

Wn.2d at 911. The Department must allege and prove:

       (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 ... from the custody of the parent for
       a period of at least six months pursuant to a finding of dependency;

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

       (e) That there is little likelihood that conditions will be remedied so that the
       child can be returned to the parent in the near future.

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


RCW 13.34.180(1).




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No. 74641-3-1/9



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

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

(1999). On review, the juvenile court's findings will not be overturned if supported by

substantial evidence. K.S.C. 137 Wn.2d at 925. Evidence is substantial if it is

sufficient to persuade a fair-minded person of the truth of the declared premise. In re

Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006). This court does not

make credibility determinations or weigh evidence on review. C.B., 134 Wn. App. at

953. "The trial judge has the advantage of having the witnesses before him or her, and

deference to the findings is of particular importance in deprivation proceedings." K.S.C.

137Wn.2dat925.

       Second, once the trial court concludes that the Department has established the

factors of RCW 13.34.180(1) by clear, cogent, and convincing evidence, it must then

consider whether terminating parental rights is in the best interest of a child. The

Department must establish by a preponderance of the evidence that termination is in

the best interest of the child. RCW 13.34.190(1 )(b). "Only if the first step is satisfied

may the court reach the second." A.B.. 168 Wn.2d at 911.

Necessary Services

       The mother claims the evidence does not support Finding of Fact 2.8 which

provides as follows:

       Services ordered under RCW13.34.136 have been expressly and
       understandably offered or provided, and all necessary services reasonably
       available, capable of correcting the mother's parental deficiencies within
       the foreseeable future, have been expressly and understandably offered
       or provided to the mother.'151

       15 Clerk's Papers (CP) at 46.
                                           -9-
No. 74641-3-1/10



      To meet its burden under RCW 13.34.180(1 )(d), the Department had to establish

that it offered or provided the mother with the required services, and that she either

failed to engage or 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 avail himself

or herself of remedial services within a reasonable period is highly relevant to the

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).

       The mother argues that the Department failed to provide "timely transportation

assistance during significant portions of the dependency," and therefore, the record

does not support the court's finding that the Department expressly and understandably

provided all necessary services under RCW 13.34.180(1)(d).16 The mother draws

support for this argument from testimony that for approximately six months after she

relocated to Southwest Washington, there were times when her monthly bus vouchers

did not arrive at the beginning of the month. The court found that the "Department

concedes that there were some problems with the bus vouchers and that many of them

got there late, at least in the beginning."17

       According to the testimony at trial, the mother was initially provided with bus

tickets in Snohomish County. When she moved to Southwest Washington, the mother

relied on others for transportation or rode the bus. There was a cumbersome process

for obtaining monthly bus vouchers from another county and following the move, some

vouchers did not arrive a week or more after the first of the month. The mother was



       16 Br. of Appellant at 15.
       17 CP at 47.

                                            -10-
No. 74641-3-1/11



also made aware that she could obtain some bus tickets from the Department's office in

Vancouver, but she did not do so. By 2015, the issue of untimely monthly bus vouchers

was largely resolved. And the mother generally had a vehicle available to her because

her father did not use his vehicle for work, rarely drove it, and freely lent it to her. Her

father testified that he finally gave the mother his vehicle about three months before

trial.


         Contrary to the mother's argument, the evidence demonstrates that for the

majority of the time, the mother had transportation, either provided by the Department or

otherwise available. In addition, the record does not show that the delay in obtaining

monthly vouchers created a meaningful barrier to her ability to participate in and

complete court-ordered services. According to the mother's own testimony, she

discontinued drug treatment because she did not believe she needed treatment and

because it interfered with other priorities namely, employment and housing. Likewise,

the mother testified that she did not participate in the recommended mental health

treatment and random UA testing because these services conflicted with her schedule.

She said she was unable to complete parenting classes because of health issues.

         Moreover, delays in receiving bus vouchers in 2014 do not explain the mother's

failure to engage in services in 2015. Even though, by her own admission, she had

stable housing starting in March 2015 and was working only part time at the time of trial,

she was not enrolled in treatment. In fact, in spite of the evidence to the contrary, she

maintained that drug treatment was no longer recommended.

         The court's unchallenged findings accurately reflect that the mother did not

substantially participate in services for reasons other than lack of transportation. See in

                                            -11-
No. 74641-3-1/12



re Dependency of M.S.R.. 174 Wn.2d 1, 9, 271 P.3d 234 (2012) (unchallenged findings

are verities on appeal). For instance, the court found:

      The mother did not complete a chemical dependency program. She has
      argued to this court and indicated to the Department, and throughout this
      trial and entire case that she does not actually need treatment and that for
      her a stable environment and a job are more important than substance
       abuse treatment^181

The court also found that the mother was unable to continue with counselling after one

session because of her "schedule" and that she likewise missed many scheduled UA

tests due to "schedule conflicts."19

       Substantial evidence supports the finding that the Department timely offered or

provided all necessary services capable of correcting the mother's parental deficiencies

but she failed to successfully complete drug treatment and other services offered.

Likelihood of Remediation

       The mother next challenges the court's Finding of Fact 2.21, which provides:

       There is little likelihood that conditions will be remedied so that the child
       can be returned to the mother in the near future. The mother is currently
       unfit to parent.[20]

       The focus of RCW 13.34.180(1)(e) 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

the parent is unable to resolve his or her deficiencies within 12 months after the child

has been declared dependent, the statute's rebuttable presumption applies and the

burden of production shifts to the parent, although the Department must still prove it is

highly probable the parent would not improve in the near future. In re Welfare of T.B..

       18 CP at 46.
       19 CP at 46.
       20 CP at 47.

                                            -12-
No. 74641-3-1/13



150 Wn. App. 599, 608, 209 P.3d 497 (2009). Again, a "parent's unwillingness to avail

herself of remedial services within a reasonable period is highly relevant to a trial court's

determination as to whether [the Department] has satisfied RCW 13.34.180(1 )(e)."

T.B.. 150 Wn. App. at 608. Even if some evidence suggests that the parents may

eventually be capable of correcting his or 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).

       The mother claims that the evidence establishes her parental fitness. She points

to the supportive testimony of her current partner and her father and that she had stable

housing and employment for most of 2015. The mother also argues that since the only

basis for the dependency was substance abuse, and she had been sober for over a

year from August 2014, there was no parental deficiency.

       The mother's argument is unpersuasive. She does not dispute that she

stipulated to having a substance abuse problem and had positive test results for both

opiates and methamphetamine. Drug and alcohol evaluators in 2014 and 2015

recommended intensive outpatient drug treatment. She did not complete nor

substantially engage in the treatment as ordered by the dependency court. The mother

does not challenge the court's finding that her denial of substance abuse was not

credible.

       Nor does the mother challenge the court's finding that she missed many UAs

despite her awareness that the UAs were a court-ordered requirement and essential to

her progress. The court found, "In fact, they are a priority for the Department as well as



                                           -13-
No. 74641-3-1/14



this Court."21 Although there were no subsequent positive test results or other

affirmative evidence showing that the mother consumed drugs after August 2014, in

light of her failure to participate in consistent UA testing, the evidence does not

substantiate her claim of sobriety.

       And importantly, while her father and partner described her parenting skills as

"excellent" and there was other evidence favorable to her, the mother ignores all

contrary evidence.22 For instance, the psychologist noted the mother's poor choices

which put her children's safety at risk, her failure to take responsibility for her actions,

and her tendency to blame others. He identified numerous psychological factors and

substance abuse issues that would negatively affect her parenting. The volunteer

guardian ad litem and social workers who witnessed the mother's interaction with the

children, noted concerns about her behaviors with the children, including negative

discussions and favoring one child over the other. The social worker assigned to the

case at the time of trial testified that she believed there was no likelihood that conditions

would be remedied in the foreseeable future given that the mother had completed no

services, had made little progress toward reunification in the approximately 21 months

since the children were removed from the home, and lacked insight regarding the

serious issues that led to the removal of the children. Substantial evidence in the record

supports the court's finding that there was little likelihood that conditions would be

remedied so the children could be returned to the mother in the near future.




       21 CP at 46-47.
       22RP(Nov. 18, 2015) at 351.
                                            -14-
No. 74641-3-1/15



The Mother's Priorities


      The mother next challenges portions of two findings, Findings of Fact 2.32 and

2.34, in which the court found that she "has not made the children a priority."23

      The mother contends that the evidence does not support these findings. She

points to evidence of her loving relationship with her children. She contends that

housing and financial stability were essential prerequisites to her participation in

services and treatment. She argues all of her efforts were directed toward the

overarching goal of reuniting with her children.

       The mother's argument relies on her own subjective interpretation of the record.

It is undisputed that the mother was aware of the dependency order and its

requirements and understood the need to engage in the services offered by the

Department in order to regain custody. There was no evidence that the mother's

participation in any service was contingent upon employment or housing. In a March

2015 order, the court expressly warned the mother that her lack of compliance with the

dependency order showed that she was not prioritizing the children.24 In a document

she filed in August 2015, the mother stated that because of her work schedule at the

time, which was Tuesday to Friday, from 4:30 a.m. to 1:00 p.m., and Saturday, from

5:00 a.m. to 2:30 p.m., she did not have time to attend sober support meetings or take

parenting classes. Based on this schedule, she said she intended to visit the children

on Sunday mornings in Everett and do errands and spend time with her fiance and his

daughter on Mondays. She stated, "I agree I have not completed services, but I have



       23 CP at 48.
       24 Ex. 20 at 8.

                                           -15-
No. 74641-3-1/16



maintained a healthy living environment, a full time job, and transportation."25 The

evidence that the mother gave precedence to other issues over fulfilling the

requirements of the dependency order, supports the court's determination that the

mother failed to prioritize the children.

Best Interest of the Children

       Finally, the mother challenges Finding of Fact 2.33, which provides:

       It is in the best interest of the child that all of the parental rights of [the
       mother] be terminated under RCW 13.34.180 and 190J26'

She also challenges a portion of Finding of Fact 2.34, wherein the court found:

       The mother cannot get over her denial issues, particularly with her substance
       abuse problem. As the Court has repeatedly said, and the Department has
       warned, the mother has not made the children a priority in her life.... and
       looking at their best interest, termination of the mother's parental rights is
       appropriate.'271

       The determination of whether termination of parental rights is in the best interest

of the child is a fact specific inquiry. In re Welfare of Aschauer. 93 Wn.2d 689, 695, 611

P.2d 1245 (1980). "Where a parent has been unable to rehabilitate over a lengthy

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

interests rather than 'leaving [the child] in the limbo of foster care for an indefinite period

while [the parent] sought to rehabilitate himself.'" In re Dependency of T.R.. 108 Wn.

App. 149,167, 29 P.3d 1275 (2001) (alterations in original) (quoting In re Dependency of

A.W.. 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). "When the rights of basic nurture,




       25 Ex. 21.
       26 CP at 48.
       27 CP at 48.

                                              -16-
No. 74641-3-1/17



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.

      Similar to her other arguments, the mother claims that because she had stability

and a safe living environment, and because the evidence demonstrated that she had

resolved any drug or mental health issues without treatment, termination was not in the

children's best interest. However, while there was evidence that the mother made some

positive changes during the dependency and evidence of parental bonds, particularly

between the mother and daughter, the juvenile court concluded that this evidence did

not outweigh the children's need for permanence and stability. The mother failed to

make progress in approximately 21 months in critical areas, including substance abuse

and mental health treatment. As the court observed, the mother testified that she

agreed to the basis for the dependency so that she would have enough time to

complete the requirements ordered by the court. Yet, after more than a year and a half,

she had not successfully completed any services, apart from evaluations. The mother

does not challenge the court's finding that "the children's need for a permanent living

situation is paramount."28 In light of this unchallenged finding and the mother's lack of

progress in critical areas, there is no basis to disturb the court's finding that termination

of parental rights was in the children's best interest.




       28 CP at 48.

                                           -17-
No. 74641-3-1/18



                                          CONCLUSION

      We affirm the termination orders.




                                                 sH*^,^
WE CONCUR:




                   " I V/ i




                                          -18-
