    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of
                                               No. 73867-4-I
J.R.P.M,
D.O.B.: 11/06/2012,                            DIVISION ONE

                      Minor child.             UNPUBLISHED OPINION

STATE OF WASHINGTON,
                                                                                p>o        t   ,-
DEPARTMENT OF SOCIAL AND                                                        o     O>o

HEALTH SERVICES,
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CAYSEA MCBRIDE,                                                                 o     0   —
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                      Appellant.               FILED: July 25, 2016


       Trickey, J. - CaySea McBride appeals an order terminating her parental rights to

her child J.R.P.M. (J.M.). She contends the Department of Social and Health Services

(Department) failed to prove several statutory prerequisites to termination. We disagree

and affirm.

                                        FACTS

       CaySea is the biological mother of a daughter, J.M., born on November 6, 2012.

At the time of trial, CaySea was 21 years old and J.M. was 2 years old.

       In August 2013, J.M. swallowed a dime while in her mother's care. Overthe course

of several days, she became lethargic and lost her appetite. By the time CaySea sought

medical help, surgery was necessary to remove the coin. The incident resulted in a

founded finding of neglect against CaySea by Child Protective Services (CPS).
No. 73867-4-1 / 2



          On October 24, 2013, CPS removed J.M. from CaySea's care after CaySea's

mother discovered bruises on J.M.'s chest.

          In January 2014, CaySea and the Department executed an agreed order of

dependency. Casey admitted to substance abuse and diagnoses of ADHD (attention

deficit hyperactivity disorder), mood disorder NOS (not otherwise specified), marijuana

dependence, and oppositional defiant disorder. She agreed to participate in a number of

services, including a drug/alcohol evaluation and any treatment recommendations,

random UAs that would be deemed complete after 90 days of "consistently clean, not

missed, not diluted UAs," a psychological evaluation with a parenting component,

parenting classes, and mental health counseling if recommended in the psychological

evaluation.1

          In July 2014, the Department returned J.M. to CaySea and her father under certain

conditions, including compliance with a signed safety plan that required CaySea to take

J.M. to Childhaven. Shortly thereafter, CaySea began keeping J.M. with her and not

taking her to Childhaven. The Department also received "some disturbing phone calls ..

. from the maternal grandmother [saying] she was very concerned about the child and

that she had been left alone with the child and the parents had disappeared."2

          In August 2014, the Department again removed J.M. from CaySea's care after an

unannounced visit revealed several violations of the safety plan.

          In December 2014, the Department filed a petition to terminate CaySea's parental

rights.



1 Clerk's Papers (CP) at 230 (finding of fact (FF) 2.8.1).
2 3 Report of Proceedings (RP) at 464.
No. 73867-4-1 / 3



          At trial, a Department social worker, Jill Kegel, testified that she took over J.M.'s

case shortly before entry of the agreed dependency order. Kegel testified that CaySea

received substance abuse treatment as an adolescent. Nevertheless, CaySea told Kegel

she smoked marijuana daily, that she partied with her friends, and that she was young

and wanted to live her life. When asked ifCaySea's marijuana use affected her behavior,

Kegel said, "Absolutely. I mean . . . she was not getting out of bed to attend visits."3

CaySea's visitation was inconsistent and Kegel "was constantly getting reports that she

was late or not showing up for visits."4 When Kegel asked CaySea about her visitation

issues, CaySea said "she was up late with her friends" and "partying."5

          Kegel testified that CaySea had mental health issues, that her "mood changed very

frequently," and that her level of anger "really stood out."6 CaySea would be talking calmly

"and then just completely snap . . . and start cursing, yelling, [and] screaming."7 Kegel

was concerned that if CaySea acted this way on the phone, she would have a difficult

time controlling her anger when overwhelmed by the demands and irritations of caring for

a small child.

          Kegel was also concerned about CaySea's ability to parent J.M. At the outset of

the case, CaySea "was overwhelmed" and would leave J.M. in her mother's care until

"she would start to get questioned by the shelter she was living in as to where the child

was because she had to have the child with her in order to remain in that housing




31   RP   at   37.
41   RP   at   38.
51   RP   at   38.
61   RP   at   39.
71   RP   at   39.
No. 73867-4-1 / 4



program."8 When J.M. swallowed the dime, "it was several days of [J.M.] being lethargic

and having a hard time with other foods, and CaySea being urged to take the child for

medical treatment, before she finally did so, which resulted in [J.M.] needing to have

surgery to have the coin removed ... ."9

          Kegel described the unannounced visit that resulted in J.M.'s second removal from

CaySea's care. She testified that when she arrived at the motel, CaySea's room had

"quite a few beer cans and a very pungent smell of marijuana."10 CaySea subsequently

arrived in a car with J.M. Kegel described Casey as "reeking of marijuana."11 Because

CaySea had violated the safety plan, and because CaySea and J.M. had to be out of the

motel that night and had no plan for alternative lodging, Kegel removed J.M. for her own

safety.

          Kegel referred CaySea for Family Preservation Services, which included a

parenting component. Although she was not totally consistent with that service, CaySea

did make some progress. Kegel also referred her for a drug and alcohol evaluation. The

evaluator recommended outpatient treatment, but CaySea said "she didn't need it,"

"didn't want to do it," and "continually refused" it.12 Kegel repeatedly told CaySea that,

contrary to her impressions, she did not need medical coverage for this service and that

the Department would pay for it if she went to one of several providers.




81 RP at 42.
91 RP at 42.
101 RPat51.
11 1 RP at 52.
121 RP at 46.
No. 73867-4-1 / 5



       Kegel even assisted her in setting up an appointment with Sound Mental Health,

but CaySea did not follow through. CaySea also did not follow through with a referral to

Journey Home for housing assistance, and did not complete her service requirement of

90 days of clean, not-missed UA testing.           As a result, CaySea had almost no

unsupervised visitation with J.M.

       Kegel recommended that CaySea's parental rights be terminated.                     Noting

CaySea's failure to complete service requirements, inconsistent visitation, and general

resistance to change, Kegel testified that there had been little progress, that CaySea was

currently unfit to parent, and that termination was in J.M.'s best interest.13 Kegel listed a

number of parental deficiencies:

       [CaySea] is continuing to use substances. She's not complying with her
       service plan. She's not doing outpatient treatment. She's not engaged in
       individual counseling. She's denying that she has any parental deficiencies
       to begin with, which . . . right there is a huge risk. When she sat up here
       and said that she's gotten it from the beginning, that worries me.. .. [S]he
       doesn't have it. She . . . changes her story on a day-to-day basis, and she
       cannot sit here and tell me how she's going to care for [J.M.] and follow
       through with that. ... I mean, just today I found out the visit provider
       dropped the visits because [CaySea] hasn't been consistent at them. . . .
       [S]he hasn't been consistent or stable in the child's life, and that right there
       is a . . . risk to this child.

       . . . I've heard her on numerous occasions say that she's going to do
       something and not do it.t14]

       Kegel said that all necessary services had been understandably offered or

provided and that CaySea never expressed any confusion or difficulty understanding what




13 2 RP at 278.
14 3 RP at 491-92.
No. 73867-4-1 / 6



she needed to do to avoid termination. Kegel saw little likelihood that conditions could be

remedied so that J.M. could be returned to CaySea in the near future.

        Shannon Rama, a chemical dependency counselor at Sound Mental Health,

testified that she conducted a chemical dependency assessment of CaySea in 2014. In

her assessment summary, which the court admitted into evidence, Rama stated that

CaySea had received mental health care in the past and that her diagnoses included

mood disorder NOS, ADHD, oppositional defiant disorder, and a possible diagnosis of

bipolar disorder. She had prior arrests for assault and burglary. A 2011 assessment by

Sound Mental Health concluded CaySea was cannabis dependent. Rama concluded in

her 2014 assessment that CaySea suffered from cannabis and alcohol abuse "as

evidenced by recurrent use resulting in a failure to fulfill major role obligations at home

(CPS [i]nvolvement in custody issue)."15 She recommended outpatient treatment, but

CaySea did not follow through.

        Randall Saager testified to CaySea's UA test results at his laboratory. Four UAs

taken between January 28 and February 18, 2015 were positive for marijuana. The

concentration decreased in each subsequent test, however.

        Mental health counselor Parzival Popof testified that he worked with CaySea on

parenting skills between September 2013 and early 2014.              She missed multiple

appointments but missed fewer as time went on. Popof testified that she completed all

parenting modules but it took longer than normal because of her missed appointments.




15 Exhibit (Ex.) 97.
No. 73867-4-1 / 7



            Popof received a second referral from Family Preservation Services in July 2014.

That referral focused on CaySea's housing, sobriety, and family interaction. CaySea's

statements about treatment for substance abuse "usually were resistant. She felt that it

was not an issue."16 Popof ultimately saw no change in CaySea's progress toward

sobriety. CaySea "had medium follow-through" with housing and some progress in the

area of discipline and interaction with J.M.17 But the latter progress was not implemented

"very much, because there weren't a lot of visitations during the service."18

            Popof also saw no improvement in CaySea's communication skills and emotional

outbursts. He noted that CaySea

            had some resistance to complying with the goals because . . . she didn't
            necessarily agree with what was being asked of her to do it seemed. And
            so, she had ... a stubbornness about submitting to the requests of the
            service team, you might say? So, as far as ... what more could have been
            done or could be done in general, ... I'm not sure. You know, the mother
            stated that she was generally aware of the consequences of her actions,
            but couldn't bring herself [to do] outpatient marijuana treatment^191
            Psychologist Steve Tutty received a referral for CaySea in the fall of 2014. He

diagnosed her as having inattentive type ADHD and alcohol and cannabis use disorders.

He testified that her ADHD can cause difficulty with monitoring, tracking, and decision

making, and that her alcohol and marijuana use disorders "can impair her insight and

judgment."20 Dr. Tutty noted "a pattern of inconsistent visitations and a tendency to blame

her setbacks and challenges onto others, which is consistent with the rebellious themes




16 2   RP   at   324.
17 2   RP   at   327.
18 2   RP   at   331.
19 2   RP   at   333-34.
20 3   RP   at   379.
No. 73867-4-1 / 8



detected in testing."21 He concluded CaySea presented "a moderate risk toward the

safety and wellbeing of [J.M.]."22 He recommended that CaySea achieve six to nine

months of sobriety, attend eight to ten individual counseling sessions, attend regular

visitation, and complete a parenting class prior to reunification.

            Elena Jones testified that her employer, US Healthworks, received a referral for

UA testing between January and April 2015. Although CaySea should have come in for

testing "one to two times a week" during that period, she only came in five times.23

            Sharon Doak, J.M.'s court appointed special advocate (CASA), testified that she

had "seen no progress with this case" and recommended termination.24 When she asked

CaySea why she was not fully participating in services, CaySea said she "was upset with

the Department" and "didn'tfeel she had to do any of it."25 Doak noted that J.M.

            is two years old. She's a very vulnerable child at this point in her life. She
            needs to have stability. She needs to have consistency. She needs all of
            those things that [CaySea] has not provided for her. And it seems to me
            that she would be at risk to be returned home right now ....


            . .. [J.M.]'s been in dependency now since sometime in 2013. At this point
            in time there has been no forward movement with this mother. I can't see
            that there is going to be. And I. .. can't see that there's any other way to .
            .. move this child forward [other than termination.][26]

            CaySea testified that she was treated for marijuana dependency between August

2009 and April 2010. When asked why she did not comply with the outpatient treatment




21 3   RP   at   380.
22 3   RP   at   380.
23 3   RP   at   410.
24 4   RP   at   551.
25 4   RP   at   538.
26 4 RP at 551, 553.

                                                  8
No. 73867-4-1 / 9



requirement during the dependency, she claimed she had problems with her medical

insurance. When counsel pointed out that Kegel had referred her to agencies that would

bill the Department for the treatment, CaySea said, "I remember her saying that there

could be that, but not that that was possible."27 She testified that "when I tried to enter..

. into the outpatient, they said that I needed to get a new evaluation" and that Kegel was

not responding to calls from the treatment provider.

         CaySea also testified that she was of two minds regarding outpatient treatment:

"One was, yeah, okay, what's the harm? And then the other was, what is this saying if I

do [the treatment]? And Ijust -1 strongly feel like if I did that, it would be saying that what

they're doing to my family is okay and it wasn't and it's not. It's not okay."28 She

understood that she had to "do the outpatient," but did not understand why.29 She

believed "the dependency had nothing to do with drugs or alcohol" and therefore did not

understand why she had an obligation to undergo outpatient treatment.30

          In addition, she testified she felt betrayed by CPS and the Department and wanted

treatment "somewhere where CPS didn't have their . . . people in there or. . . didn't

communicate or didn't work with so I would have a fair judgment."31 CaySea admitted

having similar "trust challenges" concerning the individual counseling requirement. She

described a "battle within my head" and a need to "figure out which side I was going to go

with, what I believed . .. was right or what I needed to do."32


271    RPat133.
28 4   RP at 592.
29 4   RP at 604.
30 4   RP at 602.
31 4   RP at 599.
32 5   RP at 696.
No. 73867-4-1/10



       CaySea testified that she thought she was in compliance with the UA requirement

so long as her test results were improving.      With respect to visitation, she admitted

missing some visits but said those omissions were due to increased distance to the visits,

bad timing with the bus, or occasional over-sleeping. When asked if she understood the

consequences of not completing services, CaySea said, "I did not fully understand what

I was signing when I signed the Dependency Order."33 She also testified that when she

asked about the services required in the order, she understood that "these are just the

cut and dry things that need to be done every time a case is opened . . . and they need

to make sure I'm okay in all areas I guess."34

       CaySea's mother, Kelli McBride, testified that she never had safety concerns

regarding CaySea's ability to care for J.M. The only concern she ever had was that

CaySea "was very young" and inexperienced.35

       The court terminated CaySea's parental rights and entered the following pertinent

findings of fact and conclusions of law:

                                           II. Findings



       2.8 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.


              2.8.1 The court ordered services for the mother were as follows:




331 RPat 132.
34 4 RP at 581-82.
35 5 RP at 707.


                                            10
No. 73867-4-1 /11



         (a) Drug and Alcohol Evaluation and follow drug and alcohol
         treatment related recommendations and
         (b) Random urinalysis two times per week and that the requirement
         shall be completed after 90 days of consistently clean, not missed,
         not diluted UAs.
         (c) Psychological evaluation with a parenting component;
         (d) Age appropriate parenting classes;
         (e) Individual Mental Health counseling and follow recommendations
         and that this service is contested unless recommended by the
         psychological evaluation.

            2.8.2 The Department referred the mother to Sound Mental
         Health, THS, and New Traditions for a drug and alcohol evaluation
         and referred the mother for random urinalysis.

            2.8.3 The mother has attempted drug and alcohol treatment in
         the past including attempts at treatment at SeaMar. The mother
         completed a drug and alcohol evaluation with Sound Mental Health.
         In April 2014, Sound Mental Health assessed that mother has
         diagnoses of cannabis abuse and alcohol abuse as evidenced by
         recurrent use resulting in a failure to fulfill major obligations in the
         home. Sound Mental Health recommended Level 1.0 outpatient
         treatment which should consist of 2-3 groups per week, attendance
         at 1-2 community based sober supports, a minimum of monthly
         meetings with CD counselor and a mental health assessment. The
         Social Worker Jill Kegel sat with the mother and called Sound Mental
         Health to make an appointment with the mother to do another drug
         and alcohol evaluation. The mother did not engage in outpatient
         treatment and did not complete a mental health assessment.

            2.8.4 The Department referred the mother to US Health Aurora
         to complete 90 days of random urinalysis testing. The mother
         provided many UAs that were positive for marijuana. The mother
         missed several UAs and failed to complete 90 days of not missed,
         not diluted, not positive UAs.

             2.8.5 The Department referred the mother to Dr. Coder for a
         psychological evaluation and later to Dr. Steve Tutty for a
         psychological evaluation. The mother missed many appointments
         scheduled with Dr. Tutty. Dr. Tutty recommended that the mother
         show sobriety for six to nine months before considering reunification.
         Dr. Tutty recommended that the mother engage in AA/NA meetings
         (2-3 per week) and obtain a sponsor for daily support Dr. Tutty
         recommended that the mother complete 8-10 sessions with a
         Department approved counselor skilled in treatment of ADHD and

                                           11
No. 73867-4-1/12



        borderline personality traits and that cognitive behavioral therapy
        was recommended. Dr. Tutty recommended regular supervised
        visitation and that the mother complete a parenting class akin to
        Incredible Year. Dr. Tutty recommended that the mother complete
        the services in the next six months and that she saw adequate
        progress in the parental risk factors.

           2.8.6 The Department social worker referred the mother to Sound
        Mental Health for mental health counseling. Dr. Steve Tutty
        recommended that the mother complete 8-10 sessions with a
        Department approved counselor skilled in treatment of ADHD and
        borderline personality traits and that cognitive behavioral therapy
        was recommended. The Department Social worker requested that
        the mother contact her to discuss this recommendation and find a
         provider for this service. The mother did not cooperate to contact
         Ms. Kegel to locate a provider for this service.

            2.8.7 The Department social worker sent bus tickets and an
         ORCA card to the mother. The Department social worker invited the
         mother to shared planning meetings and to family team decision
         making meetings. The mother was referred to services by letter. The
         Department social worker reminded the mother of court hearings.
         The Department social worker Jill Kegel attempted to reach mother
         by phone and email several times during the time she has been
         assigned to the case.

            2.8.8 The mother understood that she needed to consistently
         engage in the services offered by the Department to reunify with her
         daughter. She acknowledged during testimony at trial that she did
         not complete outpatient treatment or mental health treatment.

            2.8.9 Mother participated in DVsupport services through her teen
         parenting class and was provided resources for victims of domestic
         violence.

            2.8.10 The Department referred the mother to Parzival Popof for
         Project Safecare in September 2013. The mother missed
         appointments with Mr. Popof for this service. Because the mother
         indicated she liked Mr. Popof and appeared to have a good working
         relationship with him, the Social Worker Jill Kegel referred the mother
         again to Mr. Popof for Family Preservation Services. The goals of
         FPS included assisting mother to obtain housing, to achieve sobriety,
         and to work on communication due to emotional outbursts. The
         mother missed appointments with Mr. Popof. The mother did not
         make progress on achieving sobriety or on achieving

                                           12
No. 73867-4-1/13



         communication. Mr. Popof met with the mother in several locations
         for Project Safecare and for FPS. Mr. Popof encouraged the mother
         to engage in outpatient treatment tor marijuana dependence and to
         engage in mental health counseling. Mr. Popof believes that the
         mother continued to engage in other activities that interfered with her
         progress. For example, the mother engaged in a fight with another
         peer and the fight preoccupied the mother's mind. The mother chose
         to hang out with friends who were not a good influence on her. Mr.
         Popof made several attempts to assist the mother to find housing
         after she received a FUP voucher in August 2014. Mr. Popof helped
         the mother set deadlines and goals and assisted her in setting steps
         to achieve her goals. Mr. Popof "held the mother's hand" to help her
         find housing. Mr. Popof believes the mother needs to engage in
         outpatient and in mental health counseling.

             2.8.11 The child was returned to the mother and the father's care
         in July 2014. The mother did not comply with the conditions of the in
         home placement. The mother agreed she would do outpatient
         treatment but she failed to engage in outpatient treatment. The
         mother did not consistently engage in random urinalysis during the
         time the child was returned home. The mother did not ensure the
         child was taken to day care at Childhaven even with the assistance
         of bus transportation to and from Childhaven. The mother left the
         child in the maternal grandmother's care in violation of the safety
         plan. The mother and the father were living in a hotel room at the
         time. The child was removed from the parents' care three weeks after
         return home in July 2014. On the date of the second removal, the
         hotel room contained beer cans and smelled strongly of marijuana.

      2.9    There is little likelihood that conditions will be remedied so that the
      child can be returned to the mother in the near future.

             2.9.1 The mother has been referred to a number of services to
         remedy her parental deficiencies. Despite numerous referrals by the
         Department and other agencies, the mother did not consistently
         engage in random urinalysis or drug and alcohol treatment. The
         mother did not enroll in outpatient treatment. The mother does not
         believe she has drug or alcohol dependence. The mother disagrees
         with the initial reasons for removal and does not believe there was a
         safety concern that justified the initial removal in October 2013. The
         mother trusts only Parzival Popof and does not trust most other
         providers or the Department social workers. The mother believes
         she should be able to use marijuana and alcohol because it is legal.
         The mother continues to make poor and unsafe decisions for herself
         and for the child. The mother blacked out due to alcohol abuse and


                                            13
No. 73867-4-1 /14



         as a result, missed one of her appointments scheduled with Dr. Steve
         Tutty for the psychological evaluation. The child was transported for
         the appointment and the mother failed to appear. The mother also
         chose to have a party at her home in January 2015 with individuals
         drinking alcohol even though the mother was underage at the time
         and risked losing her housing. The father was invited to the party.
         Following an incident that occurred at the party, a no contact order
         was entered between the father and the mother. The mother
         emotionally shuts down and declines to engage in services when she
         encounters providers or other professionals who disagree with her.
         The mother has not consistently visited the child despite numerous
         visitation referrals and providers, numerous visitation locations in the
         community, visits in the home, and visits supervised by the foster
         parent. The mother has not made a behavior change and she
         continues to make unsafe decisions for herself. Because the mother
         did not make progress to address her substance abuse issues or her
         mental health issues, her substance abuse/mental health issues
         continue to place the child at risk for neglect in her care. The mother's
         inability to keep her life stable and meet her own basic needs place
         the child at risk. The mother has had approximately twenty months
         to show progress in her services and she has failed to do so. The
         mother stated in testimony that she was ready to start services, but
         starting services the day of the termination trial is insufficient.

            2.9.2 The child is young and cannot wait any longer for the mother
         to become available to safely parent the child. The child needs
         permanency now. Near future for this child is now. It has already
         been approximately twenty months. If the child remains in the
         dependency for several more weeks waiting for the mother to remedy
         her deficiencies, it will be detrimental to the child.

      2.10 Continuation of the parent and child relationship clearly diminishes
      the child's prospects for early integration into a stable and permanent home.
      The permanent plan for the child is adoption. An adoptive home is the stable
      and permanent home for the child. Other permanent plans are not
      appropriate for this child because he is a young child. The mother has not
      shown that she is able to maintain her own life in a stable way. Adoption
      ensures that the mother's instability in managing her own life will no longer
      impact the child's welfare. The child is placed in a home that is approved for
      adoption. There is no other petition before the Court except termination. If
      the mother's rights remain intact, the child cannot be adopted. Severing the
      legal relationship with the child and her mother will ensure the child will be
      integrated into a stable and permanent home. The child has prospects for
      adoption.



                                             14
No. 73867-4-1/15


      2.11     The mother remains currently unfit to parent the child. She has not
      engaged consistently in services in the last several months and the status
      of her engagement remains none at this time.

      2.12     The CASA Sharon Doak believes that the parental rights of the
      parents should be terminated and that termination is in the child's best
      interests. The mother continues to show an inability to manage her own
      needs. If she cannot consistently keep her own life stable and safe, she is
      unable to keep the child safe on a full time basis. The CASA also
      recommended against giving the mother additional time to initiate services,
      agreeing with Dr. Tutty's recommendation that there would need to be 6-9
      months ofsobriety before reunification should be considered, because that
      would be too long for [the child] to wait for permanency. The child needs
      stability and permanence that will be secured only through termination of
      parental rights.

                                   III. Conclusions of Law



      3.2 Termination ofthe parent-child relationship between the above-named
      minor child, [J.M.,] and the mother, Cay[S]ea McBride, is in the child's best
       interest.

       3.3 The foregoing findings of fact and the allegations of RCW 13.34.180
       and .190 have been proven by clear, cogent and convincing evidence
       unless otherwise noted.[36]

Caysea appeals.

                                         ANALYSIS

       Parental rights are a fundamental liberty interest protected by the United States
Constitution. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982). To terminate parental rights, the State must satisfy a two-step test. First, it must
prove the following statutory elements by clear, cogent, and convincing evidence:37
             (a) That the child has been found to be a dependent child;

36 CP at 230-34 (emphasis added) (boldface and citations omitted).
 "'Clear, cogent and convincing' means highly probable.'" In re Welfare of M.R.H., 145 Wn
App 10 24 188 P3d 510 (2008) (quoting In re Dependency of K.R., 128 Wn.2d 129, 141, 904
 3p
 P.2d 1132(1995)).

                                              15
No. 73867-4-1/16




          (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

         (f) That the continuation of the parent and child relationship clearly
      diminishes the child's prospects for early integration into a stable and
      permanent home.[38]


      If the trial court finds that the State has met its burden under RCW 13.34.180, it

may terminate parental rights if it also finds by a preponderance of the evidence that
termination is in the "best interests" of the child. RCW 13.34.190(1 )(b). On review,

unchallenged findings of fact are considered verities. In re Interest of J.F., 109 Wn. App.
718, 722, 37 P.3d 1227 (2001). Challenged findings will be upheld "[i]f there issubstantial
evidence which the lower court could reasonably have found to be clear, cogent and

convincing." In re Welfare of Aschauer. 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).




38 RCW 13.34.180(1).

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No. 73867-4-1/17



                                     Findings of Fact

       Caysea contends finding of fact 2.8 is not supported by substantial evidence from

which a trier of fact could find the facts by clear, cogent, and convincing evidence.

Finding of fact 2.8 states:

       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.39

Pointing to portions of her testimony and language in the dispositional order, Caysea
contends the Department failed to prove by clear and convincing evidence that services

were expressly and understandably offered. Specifically, she contends "she did not

understand . . . that she was required to complete an individual counseling regime,

notwithstanding the recommendations of some ofthe service providers, because specific
limitations and objections had been placed in the counseling portions ofthe dispositional

order."40

       But as the Department observes, the limitations and objections noted in the
disposition order made it clear that CaySea would have to complete any mental health
counseling recommended following the psychological evaluation. The order clearly
stated that "parent agrees to [individual mental health counseling] if recommended by
psych, eval. otherwise contested and not required until resolved by court."41 It is
undisputed that Dr. Tutty performed a psychological evaluation and "recommended that



39 CP at 230.
40 Appellant's Br. at 12.
41 Ex. 3, p.7 (emphasis added).

                                             17
No. 73867-4-1/18


the mother complete 8-10 sessions with a Department approved counselor skilled in

treatment of ADHD and borderline personality traits and that cognitive behavioral therapy

was recommended."42 CaySea signed an addendum to the order, acknowledging in part

that "I have read or been told the contents of this Agreed Order of Dependency and

Disposition. ...     I understand the terms of the order being entered, including my

responsibility to participate in remedial services as provided in the dispositional order."43
       CaySea also claims she was confused by service letters that referred to Dr. Tutty's
treatment recommendations as court ordered services.           But as previously noted, the

disposition order plainly required any counseling recommended by Dr. Tutty. Thus, his
counseling recommendation was a court-ordered service and service letters referring to
it as such were correct. Jill Kegel testified that she discussed the individual counseling
requirement "many times" with CaySea.44 Furthermore, CaySea conceded below, and
the court noted in its oral ruling, that she did not seek clarification ofheralleged confusion.
Thus, the record contains substantial evidence that CaySea's claimed confusion was not
justified and/or not credible.

       CaySea also challenges the court's finding that she "did not complete a mental
health assessment" recommended by Sound Mental Health.45 She contends Dr. Tutty's
evaluation satisfied this requirement. The disposition order required CaySea to obtain a
"Drug and Alcohol Evaluation and follow drug and alcohol treatment related



42 CP at 231 (FF 2.8.5).
43 Ex. 3, p.11.
44 2 RP at 275.
45 CP at 231 (FF 2.8.3).

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No. 73867-4-1/19


recommendations."46 Sound Mental Health performed the drug and alcohol evaluation

and recommended, in part, that CaySea obtain a mental health assessment. CaySea

subsequently engaged in a psychological evaluation with Dr. Tutty. The Department

concedes that a mental health assessment "occurred when [CaySea] participated in a

psychological evaluation."47 Accordingly, the words "and did not complete a mental health
assessment" must be stricken from finding of fact 2.8.3.

         CaySea next contends the finding that she "understood that she needed to
consistently engage in services"48 is not supported by substantial evidence and must be
stricken from finding of fact 2.8.8. We disagree. In addition to her signed confirmation
that she understood her "responsibility to participate in remedial services as provided in
the dispositional order,"49 the record contains numerous service letters with the following
warning:

         It is important that you understand that failure to participate and complete
         the above service plan may result in your rights as a parent being
         terminated. ... It is imperative that you become involved in these services
         as soon as possible.!501

Parzival Popof testified that "the mother stated that she was generally aware of the
consequences of her actions, but . . . just couldn't bring herself to do it" and had "a
stubbornness about submitting to the requests of the service team."51 Jill Kegel testified
that when CaySea was not fully participating in services, she told her "that's not quite how



46   CP at 230 (FF 2.8.1(a)).
47   Resp't Br. at 2 n.2.
48   Ex. 3, p.11.
49   Ex 3, p.11.
50 Exs. 43, 46, 54, 57, 59, 64 (emphasis added).
51 2 RP at 333-34.


                                               19
No. 73867-4-1 / 20


it works. We still have to continue; we still have to finish our services."52 The court's

finding is supported by substantial evidence.

       CaySea also claims that because she "had a job and appropriate housing,

completed parenting related services, chemical dependency and psychological

evaluations and was ready to engage in treatment, findings that she was not ready to

parent should be stricken."53 In particular, she contends the court's finding that her

"inability to keep her life stable and meet her own basic needs place the child at risk" is

contrary to the evidence that she had appropriate housing and a job.54 She maintains
that "isolated incidents in which [she] may have acted in some other manner were

unrelated to her parenting and do not support the trial court's broad and cynical

conclusions that she placed J.M. at risk."55 For similar reasons, she contends finding of
fact 2.11 must be stricken to the extent it provides that "[t]he mother remains currently

unfit to parent the child."56
       These contentions ignore a crucial portion offinding of fact 2.9.1, which states:

       Because the mother did not make progress to address her substance abuse
       issues or her mental health issues, her substance abuse/mental health
       issues continue to place the child at risk for neglect in her care.[57]
It is undisputed thatCaySea never completed the required 90 days of clean UAs, that she
violated the safety plan, that Dr. Tutty concluded she presented a moderate safety risk
due in part to her continued substance abuse and criminal history, and that Kegel believed


52 3 RP at 463 (emphasis added).
53 Appellant's Br. at 15 (emphasis omitted).
54 CP at 232-33 (FF 2.9.1).
55 Appellant's Br. at 16.
56 CP at 233.
57 2 RP at 271.


                                               20
No. 73867-4-1/21


her sudden angry outbursts demonstrated a safety risk given the inevitable irritations

created by a young child. Kegel testified that after J.M.'s second removal, "it was

determined that... the mother... held a safety risk at that point to the child and ... has

not to this point remedied that. So the visits have remained . . . supervised since that

point."58 Kegel noted that the safety risk was due in part to CaySea

       [l]eaving [J.M.] with the maternal grandmother who is unstable and has
       mental health issues, and she was court-ordered not to leave her with [and]
      using [marijuana] while [J.M.] was in her care. . . . [S]afety concerns of not
      following the safety plan as it was, like, not getting her to Childhaven and
      ensuring that she was where she needed to be on a daily basis as agreed.


       She's not complying with her service plan. She's not doing outpatient
       treatment. She's not engaged in individual counseling. She's denying that
       she has any parental deficiencies to begin with, which to me, that right there
       is a huge risk.

       And, just her emotional outbursts. . . . You know. . . there's justa multitude
       ... ofthings that have gone on, and she hasn't been consistent or stable in
       the child's life, and that right there ... is a risk to this childJ591
The challenged findings are supported by sufficient evidence.

   Conclusions of Law / Services Expressly and Understandably Offered or Provided

       CaySea next contends that the court's findings do not support its legal conclusion
that services were expressly and understandably offered. She asserts that after striking
the unsupported finding, the remaining findings do not support either that conclusion or
the other statutory prerequisites to termination by the required clear, cogent, and
convincing evidence. We disagree. The unsupported portion of finding 2.8.3 was just
one of many parental deficiencies identified by the court. It was not material to the court's


58 2 RP at 271.
59 3 RP at 491-92.


                                             21
No. 73867-4-1 / 22


decision. The court's remaining findings and the virtually unanimous conclusion of the

witnesses who worked most closely with CaySea provide clear, cogent, and convincing

support for the court's conclusions and the statutory termination criteria.

                     Conclusions of Law / Best Interests of the Child

       Last, CaySea contends the Department did not carry its burden under RCW

13.34.190 of proving by a preponderance of the evidence that termination was in J.M.'s

best interest. Welfare of S.V.B., 75 Wn. App. 762, 775-76, 880 P.2d 80 (1994) (best

interest element must be proven by a preponderance of the evidence). Pointing to her

secure housing and employment, her progress with some services, and her professed
readiness at trial to remain sober and complete all other services, she argues that "the

equities weigh strongly against terminating the parent-child relationship."60 The record is
to the contrary.

       Despite her laudable progress in several areas, CaySea failed during 20 months
ofservices to make progress in several critical areas, including substance abuse and
mental health counseling. And as the trial court correctly noted, "starting services the
day of the termination trial is insufficient."61 Further, unchallenged findings established
the following:


             2.9.2 The child is young and cannot wait any longer for the
           mother to become available to safely parent the child. The child
           needs permanency now. Near future for this child is now. It has
           already been approximately twenty months. If the child remains in
           the dependency . . . waiting for the mother to remedy her
           deficiencies, it will be detrimental to the child.


60 Appellant's Br. at 25.
61 CP at 232-33 (FF 2.9.1).

                                               22
No. 73867-4-1 / 23



      2.10 Continuation of the parent and child relationship clearly diminishes the
      child's prospects for early integration into a stable and permanent home.
      The permanent plan for the child is adoption. An adoptive home is the stable
      and permanent home for the child. Other permanent plans are not
      appropriate for this child because he is a young child. The mother has not
      shown that she is able to maintain her own life in a stable way. Adoption
      ensures that the mother's instability in managing her own life will no longer
      impact the child's welfare. The child is placed in a home that is approved for
      adoption. There is no other petition before the Court except termination. If
      the mother's rights remain intact, the child cannot be adopted. Severing the
      legal relationship with the child and her mother will ensure the child will be
      integrated into a stable and permanent home. The child has prospects for
      adoption.


      2.12     The CASA Sharon Doak believes that the parental rights of the
       parents should be terminated and that termination is in the child's best
       interests. The mother continues to show an inability to manage her own
       needs. If she cannot consistently keep her own life stable and safe, she is
       unable to keep the child safe on a full time basis. The CASA also
       recommended against giving the mother additional time to initiate services,
       agreeing with Dr. Tutty's recommendation that there would need to be 6-9
       months of sobriety before reunification should be considered, because that
       would be too long for [J.M.] to wait for permanency. The child needs stability
       and permanence that will be secured only through termination of parental
       rights.'62]

       Even though the words "and did not complete a mental health assessment" from
findings offact 2.8.3 are stricken, the State carried its burden.

       Affirmed.




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