                                                 J.U i i w'1    L • 11: I




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

In the Matter of the Welfare of                  No. 74348-1-


Q.T., DOB01//22/06;
J.B., DOB 112/17/13,

Minor Children under the age of 18.


WASHINGTON STATE DEPARTMENT
OF SOCIAL & HEALTH SERVICES,

                     Respondent,

       v.
                                                  UNPUBLISHED OPINION
CORRIE ROSIER,
                                                  FILED: January 23, 2017
                     Appellant.


       Verellen, C.J. — Corrie Rosier appeals the trial court's order terminating her

parental rights to hertwo children. Rosier challenges the trial court's finding that she
was currently unfit to parent the children. She also challenges the trial court's denial
of her motion to reconsider or vacate the termination order based on new evidence.

We affirm.
No. 74348-1-1/2


                                            FACTS

       Rosier is the mother of daughter Q.T., born January 22, 2006, and son J.B.,

born November 17, 2013.1 The Department first became involved with Rosier when

Q.T. was born prematurely and Rosier tested positive for cocaine at the hospital.

QT. was placed for several weeks at Pediatric Interim Care Center, a facility for

babies prenatally exposed to drugs. Rosier agreed to participate in a substance

abuse evaluation and random urinalysis testing, and Q.T. was returned to her care.

       In November 2011, Rosier's 11-month-old daughter S.R. drowned in a bathtub

while in Rosier's care. Officers investigating the incident reported that Rosier

"appeared slow and lethargic and did not appear to know her address."2 The

Department filed a dependency petition and Q.T. was placed in foster care. The

court ordered Rosier to participate in a substance abuse evaluation and any

recommended treatment, random urinalysis testing twice a week, mental health

counseling and a parenting assessment.

       In May 2012, based on the recommendations of her substance abuse

evaluation, Rosier entered inpatient substance abuse treatment at Recovery Centers

of King County. However, a couple of months after graduating from the program,

Rosier tested positive for oxycodone. Rosier was referred to several different

outpatient substance abuse treatment programs but did not comply or complete any

of them.



       1 Rule also has four other children: a son, M.R., who was over the age of 18 at
the time of the termination trial, twins O.R-T. and D.R-T., who live with their father in
California, and a daughter, NT., who lived with her father in Washington. These
children are not at issue in this appeal.
       2 Clerk's Papers (CP) at 7.
No. 74348-1-1/3


      In March 2013, Rosier moved into Passage Point, a supportive housing

program for parents and children that offers services and case management. During

this time, Rosier continued to use alcohol, opiates and methamphetamine, despite

knowing she was pregnant with J.B. Department social worker Kristie Archie and

court-appointed special advocate (CASA) David Wilma both observed Rosier attend

at least one meeting with the Department while under the influence of drugs.

      In November 2013, Rosier gave birth to J.B. At the hospital. Rosier denied

ever having used drugs in the past. However, hospital staff noted concern that

Rosier continually requested high doses of painkillers despite having a relatively

uncomplicated delivery. The Department filed a dependency petition and J.B. was

placed in foster care. Urinalysis testing showed that Rosier continued to use opiates

and methamphetamine. Rosier also sometimes fell asleep at visits with Q.T. and J.B.

      In June 2014, Rosier entered Family Treatment Court, a specialized

dependency court in King County that provides extra support and services for parents

with substance abuse issues. Rosier continued to test positive for alcohol and

methamphetamine use. Rosier was also caught forging signatures that she used as

proof of her attendance at AA/NA meetings. In August 2014, Rosier was referred to

Prosperity Counseling and Treatment Services, an inpatient facility for women with

mental health and substance abuse issues. The facility discharged Rosier in a little

over two weeks for noncompliance with program rules and disruptive behavior.

Rosier was discharged from Family Treatment Court in part for her continued

substance use and failure to comply with treatment.
No. 74348-1-1/4



       In November 2014, Sue D'Williss, who had previously been a visit supervisor

for Rosier's visits, offered to care for the children. The Department began the

process of transitioning Q.T. to D'Williss's home. D'Williss allowed Rosier to live in a

mother-in-law apartment on the property and to have liberal contact with the children,

on the condition that Rosier refrain from using drugs and alcohol. A few days later,

D'Williss took Rosier grocery shopping and Rosier bought alcohol. D'Williss

reminded Rosier that she could not stay on the property if she drank it. Rosier

consumed so much alcohol that D'Williss could not awaken her the following

morning. D'Williss told Rosier she could no longer live there.

      The Department filed a termination petition as to both children, alleging that

Rosier's continued substance use made her unfit to parent the children. Even after

the petition was filed, Rosier continued to use methamphetamine and cocaine.

      Trial on the petition took place between August 3 and September 2, 2015. At

the time of trial, Q.T. was nine years old and J.B. was almost two years old. Q.T. had

been out of Rosier's care for nearly four years and J.B. had never lived with Rosier.

The trial court heard testimony from 28 witnesses and reviewed 109 exhibits. On

October 28, 2015, the trial court entered findings of fact and conclusions of law and

an order terminating Rosier's parental rights.

       On November 2, 2015, Rosier filed a motion for reconsideration under CR

59(a) and for relief from judgment under CR 60(b), arguing that she had continued to

make progress in her services during the two months between the close of evidence
No. 74348-1-1/5


and the entry of the termination order. The trial court denied the motion. Rosier

appeals.3

                                      ANALYSIS


       Parental rights are a fundamental liberty interest protected by the United

States Constitution.4 To terminate parental rights, the State must satisfy a two-step

test. First, it must prove each of six statutory elements of RCW 13.34.180(1) by clear,

cogent, and convincing evidence:

       (a) That the child has been found to be a dependent child;
       (b) That the court has entered a dispositional order pursuant to
       RCW 13.34.130;
       (c) That the child has been removed or will, at the time of the hearing,
       have been removed from the custody of the parent for a period of at
       least six months pursuant to a finding of dependency;
      (d) That the services ordered under RCW 13.34.136 have been
      expressly and understandably offered or provided and all necessary
      services, reasonably available, capable of correcting the parental
      deficiencies within the foreseeable future have been expressly and
      understandably offered or provided;
      (e) That there is little likelihood that conditions will be remedied so that
      the child can be returned to the parent in the near future . . . ; [and]
       (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.[5]

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




        3 The fathers of Q.T. and J.B. are unknown. Their parental rights were
terminated in December 2014 and June 2015, respectively, and they are not parties
to this appeal.
       4 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982).
       5 RCW 13.34.180(1).
No. 74348-1-1/6


termination is in the "best interests" of the child.6

       In addition to the statutory prerequisites, the State must also prove that the

parent is "currently unfit to parent."7 In order to prove unfitness, the State must show

that the parent's deficiencies make him or her incapable of providing "'basic nurture,

health, or safety.'"8 "Where a trial court finds that the six statutory prerequisites have

been met, this constitutes an implicit finding of unfitness."9

       Findings of fact must be supported by substantial evidence.10 Unchallenged

findings of fact are verities on appeal.11 In determining whether substantial evidence

supports the trial court's findings, we will not weigh the evidence or the credibility of

witnesses.12

                   Parental Unfitness and Likelihood of Reunification

       Rosier contends the trial court erred in finding she was unfit to parent because

the Department failed to demonstrate a nexus between her substance abuse and her

parenting abilities. She contends that without a finding of unfitness, the Department

cannot establish the "little likelihood" element in RCW 13.34.180(1)(e). We disagree.

The trial court's findings that Rosier was currently unfit and that there was little




       6 RCW 13.34.190(1).
       7 Matter of B.P. v. H.O.. 186 Wn.2d 292, 312-13, 376 P.3d 350 (2016).
       8jd, at 313 (quoting In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062
(2004)).


       10 In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011).
       11 In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
       12 In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003).
No. 74348-1-1/7



likelihood the children could be returned to her in the near future were supported by

substantial evidence.


       Here, Rosier's primary parental deficiency was her substance abuse. Rosier

stipulated in J.B.'s dependency order that she "has a history of drug and excessive

alcohol use" and that this was a basis for removal because "[t]he child has no parent,

guardian or custodian capable of adequately caring for the child, such that the child is

in circumstances which constitute a danger of substantial damage to the children's

psychological or physical development."13 When a parent agrees to facts in a

dependency order, the Department is not required to reprove these facts in a

termination proceeding.14

      A finding of unfitness, however, requires more than the determination that a

parental deficiency exists.15 Here, the record supports the finding that Rosier's drug

use and her refusal to acknowledge its impact rendered her unfit to parent the

children. Both Q.T. and J.B. were removed from Rosier's care at birth because of

Rosier's drug use. At a Department meeting in March 2013, Rosier wanted Q.T.

placed with her, but Rosier showed up to the meeting while under the influence.

Rosier lost several valuable opportunities to reunify with her children, such as Family

Treatment Court and living with the D'Williss family, because of her substance use.

Rosier even continued to use drugs after the Department filed a termination petition

and she was aware that her parental rights could be terminated.




       13 Ex. 22 (Findings 2 & 2.3).
       14 In re Dependency of K.R.. 128Wn.2d129, 141-42, 904 P.2d 1132 (1995).
       15 In re Matter of K.M.M.. 186 Wn.2d 466, 493, 379 P.3d 75 (2016).
No. 74348-1-1/8


       Several witnesses testified regarding the nexus between substance use and

parenting ability. When asked why Rosier's sobriety was critical, the court appointed

special advocate (CASA) David Wilma testified, "Because the mother had been

documented as using drugs and alcohol and they were impacting her ability to

perform as a parent and to sustain employment."16 According to Tara Wetmore,

Rosier's chemical dependency treatment provider, the fact that Rosier "wasn't staying

sober and . . . wasn't showing up for UAs" even though she wanted to regain custody

of her children indicated that "despite consequences[,] she cannot control her use."17

Pauline Duke, the children's guardian ad litem, testified that a parent using drugs

could not meet Q.T. and J.B.'s particularized needs for structure and stability. And

Chad Baker, a Department social worker, testified that substance abuse was a risk to

children because "it alters a parent's ability to be able to make sound judgment, it

alters the parent's ability to be able to maneuver their environment in a safe and

stable way. It increases the likelihood that a parent will have or engage in risky

behaviors in which they normally may not, it—there's a . . . likelihood that a parent

using substances may place their children in dangerous situations or around people

who may."18

       Relying on In re Welfare of C.B.,19 Rosier argues that the court could not rely

solely on her past history of drug use in making the "little likelihood" finding. But C.B.

is not analogous. In C.B., the Department originally removed the children from the


       16 Report of Proceedings (RP) (Aug. 4, 2015) at 267.
       17RP(Aug. 11, 2015) at 759.
       18RP(Aug. 10, 2015) at 497.
       19 134 Wn. App. 942, 143 P.3d 846 (2006)


                                            8
No. 74348-1-1/9


mother due to her lengthy history of drug use. By the time of trial, the mother had

nearly completed a substance abuse treatment program and the evidence was

undisputed that "she was doing well in her recovery" and her prognosis for sustained

sobriety was good.20 The court held that, once a parent shows that "she has been

improving" the State may not rely "solely on past performance to prove that it is highly

probable that there is little likelihood that the parent will be reunited with her children

in the near future."21

       Here, however, the trial court's finding that reunification would not occur in the

near future was not premised merely on the mother's past failed treatment attempts.

Instead, several witnesses testified that it would take between six months and a year

to transition J.B. and Q.T. to Rosier's care. And this timeline assumed that Rosier

was fully participating in substance abuse treatment, something she had never done

during the lengthy dependency proceedings. The trial court did not err in finding that

Rosier's failure to adequately address her substance use rendered her currently unfit

to parent, nor in finding that there was little likelihood that the children could have

been returned to Rosier in the near future.

                                    CR 59 and CR 60

       After the trial court entered its written findings of fact and conclusions of law

terminating Rosier's parental rights, Rosier sought reconsideration based on CR

59(a)(4), "newly discovered evidence . . . which the party could not with reasonable

diligence have discovered and produced at the trial" and CR 59(a)(9), where



       20 CJL 134 Wn. App. at 959.
       21 Id. at 953
No. 74348-1-1/10


"substantial justice has not been done." Rosier also moved for relief under

CR 60(b)(11), which allows for a judgment to be vacated for "[a]ny other reason

justifying relief from the operation of the judgment." In support of her motion, Rosier

provided (1) a letter from her mental health therapist stating that Rosier attended her

appointments in June, July, August and October, (2) reports from her chemical

dependency treatment group from July, August and September stating that Rosier

was in partial compliance with treatment, and (3) negative urinalysis test results for

the months of April, July, August, September and October.

       The trial court denied the motion. The order reads, in relevant part, as follows:

       2) The mother's motion for reconsideration under CR 59 is DENIED;

       3) The mother's motion to set aside the judgment under CR 60 is
       DENIED because she failed to seek an order to show cause under
       CR and LCR 60(e) and she has not shown that substantial justice was
       not done under CR 60(b)(11).[22]

       This court reviews the denial of a motion under CR 59 or CR 60 for abuse of

discretion.23 A trial court abuses its discretion only if its decision is manifestly

unreasonable or based on untenable grounds or reasons.24

       Rosier contends that the trial court abused its discretion in denying her request

for relief under CR 59 because it summarily denied the motion without giving a basis




       22 CP at 742-43.

      23 Isla Verde Int'l Holdings. Inc. v. City of Camas. 99 Wn. App. 127, 142, 990
P.2d 429 (1999).
       24 Clark v. Teng, 195 Wn. App. 482, 492, 380 P.3d 73 (2016).


                                             10
No. 74348-1-1/11


for its ruling. But we may affirm a trial court's decision on any basis supported by the

record.25

         Here, Rosier failed to establish that she had newly discovered evidence

justifying reconsideration of the termination order. To support a motion for

reconsideration, "newly discovered evidence" must (1) probably change the result of

the trial; (2) be discovered after the trial; (3) not have been discoverable before trial

by the exercise of due diligence; (4) be material; and (5) be more than merely

cumulative or impeaching.26 The absence of any one of these five factors justifies

the denial of a motion for reconsideration.27 Much of the evidence Rosier sought to

introduce was already before the trial court. And the remaining evidence regarding

her participation in September and October would not have changed the result

because it was insufficient to overcome the evidence of years of noncompliance.

         Nor does Rosier establish that substantial justice was not done. The basic

question posed by this ground "is whether the losing party received a fair trial."28

"Courts rarely grant reconsideration under CR 59(a)(9) for lack of substantial justice

because of the other broad grounds afforded under CR 59(a)."29 Here, the trial court

heard testimony from 28 witnesses and reviewed 109 exhibits over the course of 13

days of trial. Rosier does not establish that she received anything less than a fair

trial.



        25 Backlund v. Univ. of Washington. 137 Wn.2d 651, 670, 975 P.2d 950 (1999)
(citing LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989)).
         26 Holadav v. Merceri, 49 Wn. App. 321, 329, 742 P.2d 127 (1987).
         27 \± at 330.

         28 Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964).
         29 Sligarv.Odell, 156 Wn. App. 720, 734, 233 P.3d 914 (2010)


                                            11
No. 74348-1-1/12


       Rosier argues that trial court denied her CR 60 motion based on the wrong

legal standard because "substantial justice" is the standard for a CR 59(a)(9) motion.

Again, however, we may affirm on any basis supported by the record. Rosier did not

demonstrate she was entitled to relief under CR 60(b)(11). Despite its broad

language, the use of CR 60(b)(11) is "not a blanket provision authorizing

reconsideration for all conceivable reasons."30 Instead, the use of CR 60(b)(11) is

confined to situations involving "'extraordinary circumstances, which constitute

irregularities extraneous to the proceeding.'"31 Rosier's participation in services for a

two-month period is not an extraordinary circumstance in light of the length of the

dependency proceedings.

       In the alternative, Rosier contends that because nearly two months elapsed

between the close of evidence and the entry of the termination order, due process

required the trial court to reopen the termination proceedings and consider her new

evidence. But "the statute does not require that termination orders be entered within

a specified period after the fact-finding hearing, and the trial evidence does not

evaporate with the passage of time. Whether delay requires reopening the evidence

on the issue of current unfitness is an inquiry into what (if anything) has meaningfully

changed."32

       As discussed above, Rosier failed to demonstrate that anything had

meaningfully changed after the close of evidence. Rosier offered evidence that she


       30 State v. Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982).
       31 Union Bank, N.A. v. Vanderhoek Assocs., LLC, 191 Wn. App. 836, 845, 365
P.3d 223 (2015) (quoting State v. Ward, 125 Wn. App. 374, 379, 104 P.3d 751
(2005)) (internal quotation marks omitted).
       32 In re Dependency of T.R., 108 Wn. App. 149, 158, 29 P.3d 1275(2001).


                                            12
No. 74348-1-1/13


was participating in most of her sessions with her substance abuse treatment

provider. But her treatment provider testified at trial that he had to put Rosier on a

reduced frequency schedule because otherwise, Rosier missed too many sessions.

And while Rosier submitted evidence of some clean urinalysis tests, the dates on the

tests indicate that there was at least one week during which Rosier did not submit

any urinalysis samples. Due process did not warrant reopening the termination

proceedings.

      We affirm the trial court's order terminating Rosier's parental rights.




WE CONCUR:




  ^u,.y




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