                                                                            FILED
                                                                          JULY 7, 2020
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

IN THE MATTER OF THE                          )
DEPENDENCY OF                                 )         No. 36723-1-III
                                              )         (Consolidated with
O.R.,                                         )         No. 36724-0-III,
B.W.,                                         )         No. 36725-8-III,
O.S.,                                         )         No. 36726-6-III)
C.R.                                          )
                                              )
                                              )         UNPUBLISHED OPINION
                                              )

        KORSMO, J. — Two parents appeal from the termination of their rights following a

30 month dependency. We affirm.

                                          FACTS

        There were four special needs children born to appellant K.R., the youngest of

whom (O.S.) was fathered by appellant K.S.1 Referrals to DSHS2 concerning the


        1
          The father of the other children relinquished his rights mid-trial and is not a party
to this appeal.
        2
          Department of Health and Human Services. DSHS changed its name in July 2018,
to the Department of Children, Youth, and Families. We refer to the agency as DSHS in
this opinion.
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


children began in 2014 and DSHS provided services to the family in 2015 and 2016. In

March 2016, the children were voluntarily removed from the mother’s care in order to

allow for house cleaning and to permit K.R. to seek mental health and medical treatment.

       When K.R. failed to follow through, the children were removed the following

month through a shelter care order. A dependency order issued in August 2016. K.R.

was required to participate in UA/BAs with clean results for 30 days, complete a

parenting assessment, receive mental health treatment, engage in regular visits, and keep

in contact with social workers. K.S. was required to complete a chemical dependency

evaluation/treatment, take part in UA/BA testing with clean results for 30 days, complete

a psychological evaluation (DV assessment if recommended), complete a parenting

assessment, and keep in contact with DSHS.

       At the six month planning review, the court determined that K.R. had provided a

few UA samples but had not undergone the chemical dependency assessment; she had

completed the psychological/mental health assessment but had not followed through on

recommended treatment, nor had she completed appropriate parenting training. K.S. had

completed the chemical dependency and psychological assessment with

recommendations for more services. His testing showed use of methamphetamine, but he

denied use of the substance, and he refused to attend further testing or engage in




                                             2
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


treatment. He did complete the parenting assessment, but problems noted there went

untreated.

      Although they attended most assessments, neither parent engaged in treatment,

leading DSHS in February 2018, to file termination petitions. The matter was tried over

six days beginning in early September and concluding in late October 2018, with the

court announcing its ruling terminating the parent-child relationships on November 9.

Written findings were entered and both K.R. and K.S. appealed to this court.

      A panel considered the consolidated appeals without conducting argument.

                                       ANALYSIS

      Both parents argue that DSHS did not provide all necessary services.3 K.S.

contends that he successfully engaged in some services and would have succeeded at the

others. K.R. argues that additional services recommended by her evaluators should have

been offered to her. Neither contention is meritorious.4




      3
         Each also argues that the termination ruling was “premature” because necessary
services were not provided. In light of our contrary conclusion, we need not address this
derivative claim.
       4
         Each parent also assigns error to related findings of fact concerning services
offered. Their arguments do not explain why the evidence supporting the findings was
insufficient and, instead, simply assert the evidence supporting their view of the case.
The pro forma nature of these arguments does not require us to discuss the evidence
supporting the findings in any detail.

                                            3
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


       In order to terminate the parent-child relationship, the State must first establish the

six elements of RCW 13.34.180(1).5 These factors must be established by clear, cogent,

and convincing evidence. RCW 13.34.190(1)(a)(i). The trial court then must likewise

find by that same standard that the parent is currently unfit. In re Welfare of A.B., 168

Wn.2d 908, 918, 232 P.3d 1104 (2010). “‘Clear, cogent, and convincing’ means highly

probable.” In re Welfare of M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510 (2008). The

trial court’s findings are entitled to great deference on review and those findings will be

upheld when supported by substantial evidence. In re Dependency of K.S.C., 137 Wn.2d

918, 925, 976 P.2d 113 (1999). Substantial evidence is that sufficient to persuade a fair-

minded, rational person of the truth of the evidence. World Wide Video, Inc. v. City of

Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991). “Because the trial court has the

opportunity to hear the testimony and observe the witnesses, its decision is entitled to

deference.” In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011).




       5
          The State must present evidence establishing that (1) the child has been found to
be dependent, (2) the court has entered a dispositional order, (3) the child has been
removed from the custody of the parent for at least six months, (4) all the necessary
services have been afforded to the parent to correct the parental deficiencies, (5) there is
little likelihood of remedying the parental deficiencies, and (6) continuation of the parent-
child relationship clearly diminishes the child’s prospects of permanent placement. RCW
13.34.180(1).


                                              4
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


       The fourth statutory factor is the one at issue in this appeal:

       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.

RCW 13.34.180(1)(d). A service is “necessary” if it is needed to address a condition that

precludes reunification of the parent and child. In re Welfare of C.S., 168 Wn.2d 51, 56

n.3, 225 P.3d 953 (2010).

       Because RCW 13.34.180(1)(d) limits the services required to those capable of

remedying parental deficiencies in the “foreseeable future,” a trial court can find that

DSHS offered all reasonable services where “the record establishes that the offer of

services would be futile.” M.R.H., 145 Wn. App. at 25. In addition, when a parent has

unique needs, DSHS must offer services tailored to meet those unique needs. In re

Welfare of Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983). DSHS, “however, is not

required to offer services when a parent is unable to benefit from the services.” S.J., 162

Wn. App. at 881. The provision of services is futile where a parent is unwilling or unable

to participate in a reasonably available service that has been offered or provided. Matter

of K.M.M., 186 Wn.2d 466, 483, 379 P.3d 75 (2016); In re Welfare of Aschauer, 93

Wn.2d 689, 699 n.6, 611 P.2d 1245 (1980). Both of these types of “futility” are present

in this case.



                                              5
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


       K.S. argues that because he attended the assessments and a parenting class, but

was not offered additional informational classes suggested by the evaluators, he was not

provided all necessary services. None of those classes were required by the terms of the

dependency. More fundamentally, K.S. did not engage in the court-ordered treatment for

his chemical dependency. That service was a mandatory condition of the dependency

action. Chemical dependency and domestic violence were the deficiencies preventing

K.S. from parenting his child. His parenting skills were not at issue.

       K.R. similarly argues that she was not provided all necessary services, pointing to

lack of in-home support and concurrent services. DSHS points out that in-home services

were not necessary (or even available) until K.R. was able to again care for the children

in her home. The other services were repeatedly offered to her, with the exception of a

parenting class that could not be attempted until K.R. sought mental health treatment that

would permit her to benefit from the class.

       The trial court expressly found:

       It would be futile to offer parenting education, which involves education of
       basic hands on parenting skills to [K.S.] and [K.R.]. Neither of them have
       taken advantage of the necessary services available to them to address their
       chemical dependency and mental health issues. * * * [K.R.] admits that
       she hasn’t completed her services, in fact she has demonstrated a complete
       disengagement in services.

Clerk’s Papers at 651-652 (finding 5.38). Although both parents challenge the first

portion of this finding, the record amply supports it. The court found that both parents do


                                              6
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


not even acknowledge or understand why the children were removed from their custody.

Id. at 651. It would be futile to offer any parenting service until the parents address the

mental health difficulties that impair their basic understanding of the circumstances. Nor

had they addressed the chemical dependency issues that were ruling their lives. Despite

numerous referrals for both types of services, K.R. simply disengaged. Similarly, K.S.

denied the existence of a methamphetamine problem and refused to engage in any related

services.

       Additional parenting classes simply would not address the fundamental problems

facing the parents. Their respective refusals to enter into mental health treatment and

undertake chemical dependency treatment made additional services meaningless. And

their refusal to engage in those fundamentally necessary treatment programs, after several

years of efforts to encourage them to do so, meant that there was no reason to believe that

continuing the dependency was going to change the status quo. The parents were

standing still in place and were not making any effort to progress.

       The trial court concluded that requiring additional services was a futile gesture

when the parents refused to engage in the treatment services mandated by the dependency

order. Further proceedings were useless. The trial court correctly determined both that it

was time to end the relationships and that it was in the best interest of the children to do

so.



                                              7
No. 36723-1-III (Consol. with Nos. 36724-0-III, 36725-8-III, 36726-6-III)
In re Dep. of O.R., B.W., O.S., C.R.


      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.

                                            _________________________________
                                                    Korsmo, J.

WE CONCUR:


_________________________________
      Fearing, J.


_________________________________
      Pennell, C.J.




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