   IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


IN RE DEPENDENCY OF K.L.G and                     No. 69464-2-1
K.J.G.,                                           Anchor w/ No. 69465-1-1
                                                                                  f-o

                                                                                           rHC-
                     Minor Children,                                                       —("-.


                                                                                  '-T"2
STATE OF WASHINGTON,                              DIVISION ONE                     1
                                                                                 en
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,                                                                 ZP       •;..on->'


                       Respondent,                                               CD
                                                                                 -c-
                                                  UNPUBLISHED OPINION                     v~ *'i


          v.



CYNTHIA GRAYSON,

                       Appellant.                 FILED: Auaust5. 2013

          Spearman, J. — Cynthia Grayson appeals the trial court order terminating her

parental rights as to two of her children, K.L.G and K.J.G. Because the record supports

the trial court's finding that the Department of Social and Health Services (Department)

provided Grayson with all reasonably available, necessary services capable of

correcting her parental deficiencies within the foreseeable future, we affirm.

                                           FACTS


          Cynthia and Thomas Grayson were married in 1993 and divorced in 2007. They

have five children, including 13 year old K.J.G. and 17 year old K.L.G. In 2003, Cynthia
No. 69464-2-l/Anchorw/No. 68465-1/2




began to develop an acrimonious relationship with one of her daughters, then age 13.

According to Thomas, the acrimony escalated to the point where the police intervened,

called him at work, and asked him to pick the daughter up. Thomas testified he and the

children obtained an order of protection against Cynthia. He also testified that he and

Cynthia began abusing drugs sometime in 2006. Thomas and Cynthia became

increasingly violent toward each other, and exposed the children to this violence. At

some point, the trial court entered an order of protection precluding Thomas from being

in Cynthia's presence.

      The Department filed dependency petitions in December 2006 based on

Cynthia's and Thomas' methamphetamine abuse and domestic violence problems. In

January 2007, Cynthia agreed to an order of dependency permitting supervised

visitation and requiring her to participate in a domestic violence assessment, a

psychological evaluation, and parenting classes.

       At a November 2007 review hearing, the trial court found Cynthia had completed

the psychological evaluation and parenting class. It ordered her to complete a one-year

domestic violence program; participate in mental health counseling; participate in

random urinalysis testing; complete a drug/alcohol evaluation and follow the

recommendations; follow all requirements of her probation; comply with the no-contact

order regarding the father; obtain and maintain a safe, stable, clean and sober living

environment appropriate for the children; maintain weekly contact with the social

worker; and address her legal matters including any warrants and charges.
No. 69464-2-l/Anchorw/No. 68465-1/3




      At a May 2008 review hearing, the trial court found Cynthia was in compliance

with services ordered and making progress toward reunification. The court's order again

required Cynthia to continue with the services it previously ordered.

       In October 2008, the court returned K.J.G. and two siblings not involved in this

appeal to Cynthia's care. The court found she was in compliance with ordered services

and making progress. The court again required Cynthia to continue with the services it

previously ordered, and Cynthia was allowed unsupervised visits with K.L.G. The order

also indicated K.L.G and another sibling could be returned to Cynthia's care when she

received permanent housing through the YMCA Project Reunite program. This occurred

in January 2009, and as such, K.L.G. was returned to Cynthia's care. In review hearings

in February and July 2009, the trial court found Cynthia was in compliance with the

ordered services.


       In August 2009, however, Cynthia permitted Thomas to have unauthorized

contact with the children, and as a result, the children were removed from Cynthia's

care and placed in protective custody. Although Cynthia denied substance abuse at that

time, she admitted to relapsing after the children were removed. At a September 2009

review hearing, Cynthia was ordered to: complete a drug/alcohol evaluation and follow

all recommendations; participate in 12-step meetings; participate in random urinalysis

testing; follow guidelines of the Pathways Housing Program; participate in domestic

violence support groups; and complete a parenting assessment. She was required to
No. 69464-2-l/Anchorw/No. 68465-1/4




notify the Department of any obstacles to accessing court ordered services, and her

visitation with the children was to be supervised.

       Cynthia was never again found to be in full compliance with the services she was

ordered to undertake. At review hearings in January, June, and December of 2010; in

March and October 2011; and in April and August 2012, the court found Cynthia had

only partially complied and was not making progress toward reunification. Cynthia's lack

of compliance included multiple failures to complete substance abuse treatment,

instances of domestic violence involving a new boyfriend, being arresting relating to an

instance of domestic violence, failing to continue mental health counseling, and failing to

show up for family counseling. She was also convicted of disorderly conduct, attempted

domestic violence violation of a court order, and third degree theft. Additionally, a

parenting assessment indicated Cynthia had severe anger management issues, shared

inappropriate information with the children, had poor decision-making skills, and a high

risk of using drugs and alcohol.

       The Department filed petitions to terminate the parents' rights to K.L.G. and

K.J.G. on September 2, 2010. K.L.G. and K.J.G. made it clear they wanted to be done

with dependency proceedings, and wanted to remain in the foster home and be adopted

by their foster family. Following a two-day trial, the court terminated Cynthia's parental

rights as to K.L.G. and K.J.G. Thomas stipulated to the termination of his parental

rights. Cynthia appeals.
No. 69464-2-l/Anchorw/No. 68465-1/5




                                      DISCUSSION


      Standard of Review. The United States Constitution protects parental rights as a

fundamental liberty interest. Santoskv v. Kramer. 455 U.S. 745, 753, 102 S.Ct. 1388, 71

L.Ed.2d 599 (1982). To terminate a parent's rights, the Department must satisfy a two-

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

The first prong requires proof of the six factors enumerated in RCW 13.34.180(1):

      (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 rendered under RCW 13.34.136 have been
      expressly and understandably offered or provided and all
      necessary services, reasonably available, capable of correcting the
      parental deficiencies within the foreseeable future have been
      expressly and understandably offered or provided;
      (e) That there is little likelihood that conditions will be remedied so
      that the child can be returned to the parent in the near future;

       ... [and]

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

The Department must prove these factors by clear, cogent, and convincing evidence. In

re K.N.J., 171 Wn.2d at 576-77. If the Department satisfies the first prong, the court

proceeds to the second prong, determining if termination is in the child's best interests.

RCW 13.34.190(1)(b). The Department must prove this second prong by a
No. 69464-2-l/Anchorw/No. 68465-1/6




preponderance of the evidence. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d

1104(2010).

       Because the fact finder has the advantage of observing the witnesses, deference

to the trial court is particularly important in appellate review of termination decisions. In re

Dependency of K.R.. 128Wn.2d 129, 141, 144, 904 P.2d 1132 (1995). We review a trial

court's findings in a termination proceeding to determine ifthey are supported by

substantial evidence. In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275

(2001).

       Services. Grayson's sole argument on appeal is that the Department failed to

prove that it offered or provided her all reasonably available, necessary services

capable of correcting her parental deficiencies within the foreseeable future.

Specifically, although Grayson acknowledges the Department offered or provided her

with all of the services listed on the dependency orders, she contends the Department

should also have provided her with housing and employment services. We disagree for

the reasons described herein.

          Generally, the Department is not required to offer or provide services that would

be futile. In reT.R., 1Q8 Wn. App. at 163: In re Dependency of PAD., 58 Wn. App. 18,

26-27, 792 P.2d 159 (1990); In re Dependency of Ramauist. 52 Wn. App. 854, 861, 765

P.2d 30 (1988). Likewise, "a parent's unwillingness or inability to make use of the

services provided excuses the state from offering extra services that might have been

helpful." Ramauist, 52 Wn. App. at 861. In Ramauist, a mother with schizophrenia was
No. 69464-2-l/Anchorw/No. 68465-1/7




frequently incarcerated or committed, and the expert testimony indicated her parental

deficiencies were untreatable. ]d. As such, the Supreme Court held no additional

services need have been offered. Jd.

       Here, the trial court entered the following findings of fact relating to Grayson's

inability or unwillingness to make use of the services provided, all of which are

unchallenged and therefore verities on appeal, Keever & Associates, Inc. v. Randalls,

129 Wn. App. 733, 741, 119 P.3d 926 (2005):

       2.12   The court heard from Norman Nelson, the provider that
              provided mental health counseling to the mother as ordered.
              The mother participated in that service with Mr. Nelson in good
              faith. Mr. Nelson provided 45 counseling sessions to the
              mother up to July 2010. In February 2012 Mr. Nelson received
              a request from the Department social worker to restart
              counseling with the mother. Mr. Nelson declined the referral
              because he opined that further Cognitive Behavioral Therapy
              (CBT) was not going to help the mother.



       2.14   The court finds that the mother's testimony is not credible.

       2.15   The mother continues to associate with drug users, and
              continued to use methamphetamine. Her last reported use
              was on December 5, 2011, prior to being incarcerated. She
              was subsequently incarcerated again and only released a few
              weeks prior to this trial.



       2.17   After the second removal of the children the mother
              participated in two substance abuse evaluations. The second
              one in January 2012, recommended intensive inpatient
              treatment.... The mother testified that she became ineligible
              for funding, however, she was eligible at the time of the
              evaluation and had the opportunity to participate in treatment.
              If she did not participate in treatment it was because of her
              own actions and conduct.

       2.18   The mother requested several times to participate in family
              counseling with [K.L.G.], but the court is not satisfied that
No. 69464-2-l/Anchorw/No. 68465-1/8


                counseling would change fK.L.G.Ts position, or the facts of the
                case: There were years of the mother's selfish bad decisions,
                not taking into account the needs of her children. The
                Department tried to set up the counseling in March 2012, and
                [K.L.G.]'s attorney persuaded [K.L.G.] to participate, but the
                mother failed to attend.

Clerk's Papers (CP) at 45 (emphasis added).

         The trial court also found that Grayson's eventual unemployment and

homelessness was a direct result of her conduct, bad decision-making, and substance

abuse:


         2.21   The mother acknowledges that she has unresolved
                substance abuse issues, and that she needs further
                treatment. Due to the mother's conduct and bad decision
                making she is homeless, unemployed, and just recently out of
                jail. She acknowledges that she is currently unable to parent
                her children, and when asked was unable to state when in the
                future she would be.

CP at 45. Although Grayson challenges this finding of fact, it is supported by substantial

evidence in the record, including Grayson's own testimony that she had not returned to

substance abuse treatment, that she was recently out of jail, and that she was currently

unable to parent her children. The finding is also supported by the testimony of her

therapist, Norman Nelson, who indicated Grayson's behavior eventually became "out of

control":

         [l]t appeared to me that things had regressed. Issues were
         becoming more pronounced, that her behavior was becoming out of
         control, associating with people that are not healthy. Her residential
         situation appeared to be a crisis. She was totally estranged from
         her children. Her children were withdrawing from her. She was not
         involved with her drug recovery, and I thought things were
         deteriorating.

Verbatim Report of Proceedings (VRP) 9/26/12 at 50.




                                              8
No. 69464-2-l/Anchorw/No. 68465-1/9




      In sum, the trial court's findings of fact establish that Grayson, through her own

poor decision-making, was unwilling or unable to follow through with the mental health

counseling and substance abuse related services offered by the Department, and that

her unwillingness to follow through led directly to her homelessness and unemployment.

As was the case with the parent in Ramauist, Grayson's "unwillingness or inability to

make use of the services provided excuses the state from offering extra services that

might have been helpful." In re Ramauist, 52 Wn. App. at 861 (quoting In re Welfare of

Ferguson, 41 Wn. App. 1, 6, 701 P.2d 513 (1985)). As such, we reject Grayson's

argument that the Department failed to offer or provide her with services able to correct

her parental deficiencies in the foreseeable future.

      Affirmed.




                                                           J^-6^/Aaa~ U»
WE CONCUR:




      Z-/ y
