       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  )
 In the Matter of the Dependency of               )           No. 75892-6-1
 L.R.(dob: 11/23/13) and                          )          (consolidated with
 J-L.R.(dob: 11/23/13),                           )            No. 75893-4-1)
                                                  )
                         Minors.                  )          DIVISION ONE
                                                  )
 STATE OF WASHINGTON,                             )
 DEPARTMENT OF SOCIAL AND                         )
 HEALTH SERVICES,                                 )          UNPUBLISHED
                                                  )
                         Respondent,              )          FILED: July 31, 2017
                                                  )
                 v.                               )
                                                  )
 LAQUISHA REED,                                   )
                                                  )
                        Appellant.                )
                                                  )

       Cox, J. — Following a series of dependencies during which Laquisha

Reed made little progress with court-ordered services, the superior court entered

orders terminating her parental rights to four of her six children.1 Reed appeals

the court's most recent order terminating her rights to her two youngest children,

L.R. and J-L.R. With one possible exception, the Department of Social and

Health Services (Department) carried its burden of understandably offering or

providing all necessary services. To the extent it failed to understandably offer a

portion of one service, we conclude that service would have been futile. And



        1 Reed voluntarily relinquished her parental rights to a fifth child and the sixth
died in a fall from her apartment window.
No. 75892-6-1 (consolidated with No. 75893-4-1)/2


contrary to Reed's assertions, proof of reasonably competent case management

is not part of the Department's burden in this termination proceeding. We affirm.

       Reed is the biological mother of N.C., A.C., H.R., O.M. and the subjects of

this action, twins L.R. and J-L.R.

       In 2008, Reed's oldest child, H.C., died after falling from Reed's apartment

window. Shortly thereafter, the Department filed a dependency petition as to

A.C. based on allegations of parental neglect and substance abuse. Reed

engaged in services and the court denied the petition.

       In 2010, the Department filed a second dependency petition regarding

A.C. The court found that Reed left A.C. alone and crying in a hallway while

using PCP, and that she had a "chronic, serious and untreated chemical

dependency problem." Witnesses described Reed as "out of it", "agitated,

aggressive, disheveled, and disoriented" during the incident. The court found

Reed's behavior "eerily and tragically reminiscent" of a 2008 incident in which

she "needed to be restrained because of her violent aggression toward the

[Emergency Medical Technicians]." The court declared A.C. dependent and

ordered Reed to obtain a drug/alcohol evaluation, random urinalysis, and a

psychological evaluation.

       In February 2011, Reed gave birth to H.R. Reed tested positive for PCP

at that time. In April 2011, the court entered a default dependency order as to

H.R. and again ordered Reed to engage in a drug/alcohol evaluation, random

urinalysis, and a psychological evaluation.


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       In April 2012, the court terminated Reed's parental rights to A.C. and H.R.

Although Reed had obtained a substance abuse evaluation that recommended

intensive outpatient treatment, she did not obtain the treatment or participate in a

psychological evaluation. She also stopped visiting the children in 2011.

       In October 2012, Reed gave birth to O.M. He tested positive for PCP and

was treated for withdrawal. Two months later, the court declared O.M.

dependent and ordered random urinalysis, a parenting assessment, a chemical

dependency evaluation and any recommended treatment, and mental health

counseling.

        On November 23, 2013, Reed gave birth to L.R. and J-L.R., the twins at

issue in this appeal. Given Reed's history of dependencies and substance

abuse, the hospital alerted the Department.

       In December 2013, the court sentenced Reed for a 2011 theft conviction

and ordered her to enter inpatient substance abuse treatment. In January 2014,

Reed entered treatment at Genesis House. She made progress in the program,

but after a few months Genesis House announced it was closing due to budget

issues. Staff informed program participants they would be placed in other

programs. Nevertheless, and against the advice of her chemical dependency

counselor and Department caseworker, Reed left the program.

       In June 2014, the court entered an agreed order of dependency as to L.R.

and J-L.R. The order required Reed to engage in parenting classes, urinalysis,

inpatient or intensive outpatient treatment, and a psychological evaluation and


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any recommended treatment. The court found that "[t]he parent. . . understands

the terms of the order he/she signed, including his/her responsibility to participate

in remedial services in the below dispositional order." The psychological

evaluation resulted in a recommendation for chemical dependency treatment,

and mental health therapy using Cognitive Behavioral Therapy(CBT)and

Dialectical Behavioral Therapy (DBT).

       The first dependency review order stated that Reed made partial progress

with services but that progress had "recently fallen off and court is concerned."

Subsequent orders indicated Reed's visits were declining and she was generally

not making progress with services.

       In January 2016, the Department filed a petition to terminate Reed's

parental rights to the twins.

       Trial commenced in August 2016. Department social worker Patricia

Gordon testified that she became Reed's caseworker near the end of her first

dependency. She continued in that role until October 2015.

       Gordon testified that during the dependencies involving 0.M., L.R. and J-

L.R., she told Reed how to access services in both service letters and

conversations. Gordon identified a September 14, 2014 letter she hand

delivered to Reed regarding her progress with services. The letter stated that

Reed completed a psychological evaluation with Dr. Tatyana Shepel but had not

contacted the prosecutor's office to establish paternity and had completed only

two UAs. The letter also said "[it is unclear if you have completed you[r] intake


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and are currently following through with [mental health counseling]." The letter

expressly directed Reed to Sound Mental Health ("SMH")for her mental health

services. Gordon ended the letter by encouraging Reed to "find the motivation to

re-engage in your services." Gordon identified Reed's signature on the letter and

testified that Reed signed it in her presence.

       One month later, Gordon delivered another letter to Reed that encouraged

her to restart her urinalysis. Gordon sent Reed separate letters regarding

visitation.

       In early 2015, Gordon sent Reed letters explaining that the phone

numbers she gave Gordon were not working. Gordon encouraged her to get a

free phone at the Department office. Gordon also asked Reed to call and set up

a meeting to discuss her services. Several months later, Gordon informed Reed

by letter that she had missed the meeting and needed to schedule another one.

Gordon also warned her about missed visits with the twins and the possibility that

her visitation contract would be cancelled.

       Gordon subsequently informed Reed by letter that her phone numbers

were not in service and that she needed a contact number or e-mail address.

She had frequent conversations with Reed "about the importance of being able to

[have] contact with her."2 To Gordon's knowledge, Reed never applied for a free

phone.




       2   Report of Proceedings(RP)(August 29, 2016) at 62.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/6


       By letter dated July 30, 2015, Gordon expressed more concern about

Reed's failure to engage in services. The letter stated that Reed had not

contacted the prosecutor's office to establish paternity, had not started the DBT

therapy recommended by Dr. Shepel, and was not in compliance with chemical

dependency treatment and urinalysis requirements. Like the September 2014

letter, the July 30, 2015 letter stated it was unclear whether Reed was complying

with her mental health service requirement. The letter ended with the following:

       Laquisha, please find the motivation to re-engage in your services.
       PLEASE let me know howl can assist you. We have had many
       conversations about your services and re-engagement and our last
       conversation in-person was on 6/16/2015 and we scheduled a
       meeting for 6/22/15 at 1 pm. You were a "no show" 6/16/15 and
       [for] our previously scheduled meeting. .[3]

When asked if Reed responded regarding "any of these services. . . you noted in

this letter," Gordon said "[don't recall that she did."4

       Gordon testified that Reed understood what she needed to do with respect

to services. She recounted a conversation "with [Reed]over the phone when

she was incarcerated and she had the twins — and 1 had sent her a packet of

information — and she told me she was helping other people with finding

resources, and that the packet 1 had sent was very helpful."5 Gordon told Reed

how and where to access services recommended by Dr. Shepel. Reed never



       3   Exhibit 17(emphasis added).
       4   RP (August 29, 2016) at 65.

       5   Id. at 67.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/7


expressed confusion about accessing services. Gordon testified that once Reed

received a service referral, it was her obligation to make the initial contact with

the service provider "because progress is shown by following through."6

       With respect to chemical dependency treatment and urinalysis, Gordon

testified that Reed did participate in inpatient treatment at Genesis House until

the facility announced its closure. At that point, Gordon advised Reed to stay at

Genesis House until they could create a transition plan for her. But Reed did not

want to be in inpatient treatment and left the program without a plan. Despite

referrals for urinalysis, Gordon never received confirmation that Reed completed

the required 90 days of consecutively clean UAs.

       Gordon testified that by the time she left the case in October 2015, Reed

had not made any gains in remedying her parental deficiencies. She had not

followed through with the recommendations in the psychological evaluation or

engaged in urinalysis, and "[t]here was no way to tell . . . what her sobriety was

like."7 According to Gordon, the twins were adoptable and termination was in

their best interests.

       Peggy Hurd, a DSHS social worker, testified that she worked with Reed

and the twins beginning in January 2016. Reed told Hurd she was participating

in mental health and chemical dependency treatment at SMH. Hurd could not

confirm Reed's participation because Reed had not signed a release of



       6   RP (September 7, 2016) at 561.

       7   RP (August 29, 2016) at 96.

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No. 75892-6-1 (consolidated with No. 75893-4-1)/8


information form. Hurd admitted that she forgot to "bring a release to a visitation

when [Reed] was there."8 Hurd testified, however, that when she asked Reed if

she stayed for the sessions at SMH, Reed admitted she did not stay for the

whole session.

       Hurd testified that the twins are adoptable and that Reed is not ready to

safely parent them. She said Reed would have to demonstrate at least six

months of sobriety and progress in services before the children could be

transitioned to her. But because the twins had "waited for over two years... to

find a permanent home," and because they needed permanency, Hurd believed it

was not in their best interests to wait another six months to see if Reed could

comply with court-ordered services.8

       Psychotherapist Amy Plumb performed a chemical dependency

assessment of Reed at SMH in 2013. She concluded Reed suffered from PCP,

cannabis, and nicotine dependence. A mental health assessment on file at that

time stated that Reed had major depressive disorder, severe, with psychotic

features. Plumb referred Reed for intensive outpatient treatment, which included

a mental health component, and recommended that she continue her ongoing

mental health treatment for grief and loss at SMH. A short time later, Reed's

mental health case manager informed Plumb that Reed had decided to seek

services elsewhere.



       8   Id. at 169.

       9   Id. at 180.

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No. 75892-6-1 (consolidated with No. 75893-4-1)/9


       Leanne Sahli testified she met Reed in the intensive outpatient treatment

program at New Traditions. The program consists of nine hours of group

sessions, individual sessions with a counselor, eight sober support group

meetings per month, and urinalysis. Reed attended four group sessions, one

individual session, and ultimately did not complete the program.

       Micah Kurtz, a Child and Family Services Supervisor, testified she

supervised Reed's case for two years. Kurtz concluded termination was in the

twins' best interests, stating:

       ... what 1 saw ... from multiple sources... was a consistent
       message of the mother not participating in services, not completing
       services when she had started them, and visiting very irregularly. . .
       . We have made services available to this mother for a long time
       on this case. And, the children need to have an opportunity to have
       a forever home sooner than later.(101

       Chemical Dependency Counselor Marissa Lindgren testified she

performed an assessment of Reed in May 2014. She diagnosed Reed with PCP

dependence and recommended three months of intensive outpatient treatment —

the same treatment previously recommended by Genesis House when Reed

discontinued her inpatient treatment.

       Kathi Villaruz, the Court Appointed Special Advocate(CASA)for the twins,

testified that the twins have special needs, including sensory issues and speech

delays requiring speech therapy. She said Reed had been incarcerated four

times during her term as CASA. Reed never contacted Villaruz despite having



       10 RP (August 31, 2016) at 383-84.

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No. 75892-6-1 (consolidated with No. 75893-4-1)/10


her phone number and e-mail address. Villaruz testified that Reed gave her "the

impression . .. that she was working towards having an open adoption

agreement," as opposed to reunification.11

       Villaruz and other witnesses testified that Reed demonstrated a loving

bond and appropriate parenting during visits with the twins. Reed, however, had

only three visits in the six months before trial and Villaruz testified that consistent

visits are necessary to "grow a stable base to. . . build on" and to provide

permanence.12

       Villaruz expressed concern regarding Reed's testimony "that she did not

feel she needed any further chemical dependency treatment."13 She noted there

was no documentation whether Reed is clean and sober. Villaruz concluded that

returning the children to Reed in the near future would not be safe and that her

parental rights should be terminated. Termination would be in the twins' best

interests because they will soon realize "the impermanence of their situation, and

that would be very harmful to their development."14

       Dr. Shepel, a clinical neuropsychologist, testified that she performed a

neuropsychological evaluation of Reed in 2014 and observed her with the twins.

She diagnosed Reed with major depressive disorder, substance abuse disorder,


       11 Id. at 423.
       12   Id. at 438.

       13   Id. at 436.
       14   Id. at 441.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/11


posttraumatic stress disorder, cognitive disorder not otherwise specified, learning

disorder not otherwise specified, personality disorder with paranoid and

narcissistic traits, and intellectual functioning in the borderline range. Tests

showed impairments for memory, attention, intellectual functioning, and other

cognitive domains. Dr. Shepel testified that these deficits meant that Reed "may

require more accommodations, more individualized treatment approaches, and

longer participation in therapy and treatment and support.... But it doesn't

preclude [her]from benefitting from services if there is motivation to attempt[to]

follow through."15 Dr. Shepel concluded that Reed "may not benefit from services

because of very high level of resistance and denial, dishonesty, and also the

history of relapses and quitting treatments, and not benefitting from previous

treatments."16 Dr. Shepel recommended that Reed participate in chemical

dependency and mental health treatment, with the latter utilizing DBT and CBT.

She further recommended that Reed receive accommodations for her cognitive

deficits.

       Hannah Harrison testified that she became Reed's case manager at SMH

in August 2015. Although Harrison provides both case management and therapy

at SMH,she characterized her role with Reed as "more of a case management

role."17 When Reed expressed an interest in being seen more often, Harrison


       15   RP (September 7, 2016) at 470.

       16   Id. at 478.

       17   Id. at 515.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/12


referred her for assignment to an SMH therapist. She also referred Reed to

housing and trauma groups and medication management. Asked if she took

"any affirmative action with respect to providing any counseling" for Reed,

Harrison said "I offered appointments with her, and she.. . was able to schedule

with me. That was always an option."18 Although she recalled discussions about

meeting with Reed more often, she did not recall discussing whether the

meetings would include counseling. She also conceded that her referral to an

SMH therapist "fell through the cracks on [our] end... ."19

       Harrison testified she used CBT with other patients and could have used it

with Reed. Although she took classes in CBT in graduate school, she did not

have a certificate in CBT. Harrison stated that a person could benefit from CBT

only if they had regularly scheduled appointments. Reed missed appointments

with Harrison and only attended three or four in the year prior to trial. Harrison

testified that a DBT group was available at SMH, but she could not recall whether

she referred Reed to that group.

       Reed testified that Gordon made her aware of the required services and

how to access them. When asked if she had any trouble understanding how to

access services, Reed said "No. [Gordon]. . . sent letters. She did that part

right."2°


       18 1d.   at 529.

       19   Id. at 530.

       28   RP (August 30, 2016) at 286.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/13


       Reed testified she started grief counseling at SMH after her son died in

2008. She started seeing Harrison at SMH because the Department required her

to do that "to be a part of my kids' life."21 She engaged in substance abuse

treatment at Genesis House but left because the program was shutting down and

"they didn't know where they were going to place us."22 She tried treatment at

SMH for about a month until she was discharged from the program. She also

tried New Traditions but was terminated from the program after being

incarcerated. She claimed she tried repeatedly to get another referral to New

Traditions from caseworker Gordon, but her messages went unanswered

because Gordon had been replaced by Peggy Hurd.

       Reed eventually contacted Hurd but did not ask for a referral to New

Traditions. She stopped seeking that referral because she wanted a program

that would include her children. She conceded she was not currently engaged in

drug and alcohol treatment but claimed she has not used PCP since January

2014. When asked if she believed she needed to complete a drug and alcohol

program, Reed said "I don't believe that. And I've. . . never believed that.    ."23

Reed admitted that her visitation during the year preceding trial was adversely

affected by her three incarcerations.




       21   Id. at 252.

      22    Id. at 256.

       23   Id. at 282.

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No. 75892-6-1 (consolidated with No. 75893-4-1)/14


       After the Department rested, Reed moved to dismiss on the ground that

the Department failed to prove that she was unfit to parent and that termination

was in the twins' best interests. The court denied the motion.

       On September 20, 2016, the court orally granted the termination petition,

stating in part:

               Ms. Reed acknowledged during the termination trial that Social
       Worker Gordon had given her information regarding all of these
       services, and that she understood the need to complete these
       services. Of the services ordered by the Court, Ms. Reed completed
       only the age-appropriate parenting classes. She did submit to
       urinalysis testing, but on a sporadic and inadequate basis to
       determine if she is currently using any non-prescribed drugs....
       Ms. Reed was given the opportunity to engage in chemical
       dependency and substance abuse treatment while she resided at
       Genesis House. Unfortunately, due to the impending closure of
       Genesis House, Ms. Reed decided to self-discharge from the
       treatment program there rather than completing the program until
       Genesis House closed and then have—and then transitioning to
       opportunities for further treatment at New Traditions.
              . .. [T]o date Ms. Reed has not completed court-ordered
       chemical dependency or substance abuse treatment.
              With respect to mental health evaluation treatment, this
       Court finds that the mother.. . has completed the. . . required
       evaluations.

              To the mother's credit,[she] did engage with a counselor
       and case manager at Sound Mental Health, Hannah Harrison.
       However, the mother's contact with Sound Mental Health was
       sporadic and inconsistent. ... The Court is concerned that Sound
       Mental Health failed to follow through on a referral for the mother to
       a regular mental health therapist at the facility. However, Ms.
       Harrison testified that she offered the mother the opportunity to
       have counseling sessions with her and would have been available
       had the mother followed through on—on contact with her, with "her"
       being Ms. Harrison.
               In conclusion, the Court finds by clear, cogent, and
       convincing evidence that the services necessary for the children to
       reunite with their mother were specifically and understandably
       identified for the mother. ...


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No. 75892-6-1 (consolidated with No. 75893-4-1)/15


             Subsection (e) provides that the Court must make a finding
      based upon State's evidence to clear, cogent, and convincing
      standard that there is little likelihood that conditions will be
      remedied so that the children can be returned to the parent in the
      near future. A parent's failure to substantially improve parental
      deficiencies within 12 months following entry of the dispositional
      order shall give rise to a rebuttable presumption that there is little
      likelihood that conditions will be remedied so that the children can
      be returned to the parent in the near future.. . .

               The mother has been in dependency proceedings with her
      various children since approximately 2008. The mother has been
      made well aware through this dependency, as well as the previous
      dependencies, of the need for her to seriously and consistently
      address her parental deficiencies in order to obtain reunification
      with her children. These children have been in foster care for
      nearly their entire lives, since their birth nearly three years ago.
      Under the statutory scheme of RCW 13.34.180, the rebuttable
      presumption set forth in this subsection would apply that there is
      little likelihood that conditions will be remedied so that the children
      can be returned to the parent in the near future. The State has
      made the necessary showing that all necessary services
      reasonably capable of correcting the parental deficiencies within
      the foreseeable future have been clearly offered or provided. The
      mother has an established history of PCP use and dependence,
      which has not been demonstrably addressed by her. She has not
      engaged in and completed necessary programs to ensure the
      absence of ongoing use and reassurance that she does not relapse
      were her children to be returned to her. In addition, she failed to
      provide the urinalysis in order to ensure. .. her sobriety at this
      time, or during the course of the dependency.

              The expert testimony at trial was that the mother could not
      likely complete services for another 12 to 18 months. Even
      assuming the mother were to engage in addressing these
      deficiencies immediately, the evidence at trial was that the
      recommended treatment for chemical—for the chemical
      dependency problem would be three months of inpatient treatment,
      followed by a minimum of another nine-plus months of intensive
      outpatient program....
              Under the best-case scenario, the mother could not address
      these parental deficiencies until a minimum of one year. However,
      given her previous failure to address these deficiencies during the
      prior dependencies, this Court questions whether the mother would,

                                        15
No. 75892-6-1 (consolidated with No. 75893-4-1)/16


      in fact, be capable of doing so and following through to completion
      at this stage. Certainly, for children of nearly three years of age
      who have never lived with their mother, extending these
      dependencies for a minimum of another year with the attendant
      risks would not create the likelihood that these children could be
      returned to the mother in the near future.

              Based on the above findings... , the Court finds that the
      State has carried its burden of proving by clear, cogent, and
      convincing evidence that the mother is currently unfit to parent her
      two children,[J-L.R. and L.R.].
              Finally, under RCW 13.34.190, Subsection (1)(b), this Court
      must determine whether the termination of parental rights is in the
      children's best interest. . . .
            • The overwhelming evidence in this case. . . is that the
      mother is not presently able or capable of providing for these two
      children. She has a history of drug use, current diagnoses of
      significant mental health problems, and a long-term failure to
      address her parental deficiencies to be able to reunite and care
      adequately for her children. The mother has had an understanding
      of the need to address these deficiencies, an opportunity to access
      services to address these deficiencies, and has failed to adequately
      avail herself of the services to care and protect [J-L.R. and L.R.].
      Additional time to allow the mother to access the services, which
      she has not followed through in the... past compromise and
      jeopardize the wellbeing of these two children. For this reason, the
      Court finds . . . it is in the best interest of[J-L.R. and [L.R.] to
      terminate the parental relationship with Laquisha Reed J24]

      The court subsequently entered written findings and conclusions and an

order terminating Reed's parental rights.

      Reed appeals.




      24   RP (September 30, 2016) at 671-83.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/17


                                     TERMINATION

       Parental rights are a fundamental liberty interest protected by the United

States Constitution.25 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:

      (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.E263

If the State satisfies these criteria, the court may terminate parental rights if it

finds by a preponderance of the evidence that termination is in the "best

interests" of the child.27




       25   Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982).

       26   RCW 13.34.180(1).

       27   RCW 13.34.190(1)(b).


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No. 75892-6-1 (consolidated with No. 75893-4-1)/18


         On review, unchallenged findings of fact are considered verities.28

Challenged findings will be upheld "[i]f there is substantial evidence which the

lower court could reasonably have found to be clear, cogent and convincing . ..

."29   Because the trial court hears the testimony and observes the witnesses, its

decision is entitled to deference.33 Consequently, we defer to the trier of fact on

issues of conflicting testimony, credibility of the witnesses, and the weight or

persuasiveness of the evidence.31

                        Reasonably Competent Case Management

         Reed contends the court erred in terminating her parental rights because

the Department failed "to establish by clear, cogent, and convincing evidence

that the. . . social worker(s) provided reasonably competent case management

throughout the dependency." The authorities she cites in support, however, do

not require such proof for termination. Rather, they hold that where a

dependency service would not be futile, delays or omissions in providing the

service may undermine a finding that all necessary services were offered or




         28   In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001).

         29   In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
         39   In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277(1991).

       31 A.V.D., 62 Wn. App. at 568; In re Welfare of S.J., 162 Wn. App. 873, 881, 256
P.3d 470(2011); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990).

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No. 75892-6-1 (consolidated with No. 75893-4-1)/19


provided as required by RCW 13.34.180(1)(d).32 Accordingly, we review Reed's

claims of caseworker incompetence in the context of the Department's burden to

demonstrate the provision of all necessary services.

                   Provision of Services Under RCW 13.34.180(1)(d).

       The trial court found that all court-ordered and necessary services were

"expressly and understandably offered or provided," and that the Department

proved this fact by clear, cogent and convincing evidence. Reed assigns error to

the court's finding and conclusion, arguing that the Department failed to prove by

clear and convincing evidence that it understandably referred Reed for the

mental health treatment modalities -- DBT and CBT -- recommended by Dr.

Shepel. We address each in turn.

                                            DBT

       To meet its statutory burden, the Department must, at a minimum, provide

the parent with a referral list of agencies or organizations that provide the

required services.33 Under the clear, cogent and convincing evidence standard,


        32 In re Welfare of S.J.,162 Wn. App. at 881-84 (reversing termination due to
Department's failure to timely provide court-ordered mental health service that might
have helped the parent progress in other services at an earlier stage and would not have
been futile); In re Dependency of T.L.G.,126 Wn. App. 181, 198-203, 108 P.3d 156
(2005)(where "protracted delay" in obtaining psychological evaluations was not "solely
(or even mostly)" caused by the parents, there was no reason why mental health
services could not be provided pending the evaluations, and there was no finding
parents could not have benefitted from the services, the delay and "false premise that all
other services should await the [evaluation] results" fatally undermined the court's finding
that necessary services were offered); and In re Dependency of H.W., 92 Wn. App. 420,
426-30, 961 P.2d 963(1998)(termination was premature where Department did not
offer parent disability services and record did not support finding of futility).

        33   In re Welfare of Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983).

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No. 75892-6-1 (consolidated with No. 75893-4-1)/20


the Department carries its burden only if the evidence proves that the necessary

facts are highly probable.34 In this case, the evidence relating to the provision of

DBT met that standard.

       Caseworker Gordon testified she gave Reed verbal and written

instructions on how to access services during both 0.M.'s and the twins'

dependencies. In the twins' dependency, Gordon testified that she specifically

explained how to access the services recommended by Dr. Shepel and referred

Reed to programs she knew from prior dependencies:

      Q. Okay. Do you ever recall speaking with her about the mental health
      services that were recommended by Dr. Shepel?
      A. Yes.
      Q. And did you speak with her during any of those conversations about
      how to access those services recommended by Dr. Shepel?
      A. Yes.
      Q. What do you recall speaking with her about?
      A. About recommending services... to places that she was familiar with.
      She had been to several of the places over the course of. .. her
      [dependency] cases. . . such as Valley Cities, Sound Mental Health, New
      Traditions.
      Q. Okay. And specifically with regard to... mental health services, did
      you speak with the mother about Sound Mental Health for that service?
      A. I don't recall a specific conversation.

       A. But if it was followed up in a letter. . . it was discussed with her.
       Q. With the mother?
       A. Yes.[351




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

       35   RP (September 7, 2016) at 554-55(emphasis added).

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No. 75892-6-1 (consolidated with No. 75893-4-1)/21


Gordon testified that the services recommended by Dr. Shepel, including DBT,

were available at Valley Cities, Navos Mental health Solutions, SMH,and New

Traditions.

       In a letter dated July 30, 2015, Gordon provided Reed with the addresses

and phone numbers of the service providers. The letter, which Gordon mailed

five months prior to the filing of the termination petition, expressly reminded Reed

that she needed to engage in individual mental health counseling and "Diabolical

[sic]Behavioral Therapy(DBT). . . as soon as possible, as it has been identified

as a good treatment to address the mental health concerns that impact your

ability to safely parent."36 In addition, Reed signed a June 2015 note that said:

"Bus tickets for Court ordered services DBT, UA's, parenting education."37

Gordon testified that Reed never expressed "any confusion about where she

needed to go to do the services that were required by the court."38 The fact that

Reed had her initial meeting with her SMH case manager within a week of

receiving the July 30, 2015 letter demonstrates her understanding of the referral

and letter.

       Reed's testimony corroborated Gordon's. When asked if at any point she

"didn't understand how to access the services that were ordered by the Court,"




       36   Exhibit 17(emphasis added).

       37   Exhibit 18(emphasis added).

       38   RP (September 7, 2016) at 554.


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No. 75892-6-1 (consolidated with No. 75893-4-1)/22


Reed said "No."39 She testified Gordon sent or handed her letters explaining how

to access services and verbally told her she needed to engage in the services

recommended in her psychological evaluation. Reed talked to Gordon "[a] lot"

and contacted her "[e]very time I had a barrier out here in the field."49 She also

testified she had no difficulty understanding written materials given to her by a

parent coach.

       In short, the Department not only met the minimum threshold of providing

Reed with a list of service providers for DBT, it did so both verbally and in writing.

It also expressly and repeatedly reminded her that she needed to engage in

mental health therapy in general, and DBT in particular. The record supports the

court's finding and conclusion that DBT was expressly and understandably

offered or provided as required by RCW 13.34.180(1)(d).

       Reed argues, however, that the Department did not satisfy RCW

13.34.180(1)(d) because "neither Gordon nor Hurd made any effort to make

reasonable accommodations" for Reed's cognitive limitations. The record does

not support this claim, especially in light of the reactions the caseworkers

received from Reed.

       Gordon and Hurd testified they saw no indication that Reed was having

difficulty understanding or accessing her service requirements. Both testified

they were ready and willing to provide Reed with additional support, but she



       39   RP (August 30, 2016) at 286.
       40 Id. at 284.

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No. 75892-6-1 (consolidated with No. 75893-4-1)/23


never exhibited any confusion and affirmatively assured them she was engaged

in her mental health services at SMH. Significantly, Reed herself testified that

she understood how to access her services. Nevertheless, Gordon went to

considerable lengths to ensure Reed's understanding of her services. She

provided both written and verbal instructions on how to access services, hand

delivered a number of service letters, selected service providers that Reed was

familiar with from prior dependencies, provided services while she was

incarcerated, made unscheduled in-home visits to check on Reed, and made

persistent attempts to improve Reed's communication with Gordon and

engagement in services. Reed confirmed Gordon's persistence, testifying that

she spoke to Reed "a lot" and did so whenever she had difficulties. Likewise,

Hurd repeatedly asked Reed about her participation in services and Reed

assured her she was participating in services at SMH. Hurd also tried to obtain a

written release from Reed to access SMH records, but it was difficult to do so

given that their conversations were usually over the phone. The record thus

belies Reed's argument.

       Reed also argues that given her cognitive difficulties, the July 30, 2015

letter could and should have been clearer in connecting DBT with the listed

service providers. We agree, but any deficiency in the letter was immaterial

given (a) Gordon's testimony that she also verbally explained how to access the

services recommended by Dr. Shepel,(b) Gordon's testimony that Reed

expressed no confusion regarding accessing services,(c) Reed's testimony that


                                        23
No. 75892-6-1 (consolidated with No. 75893-4-1)/24


she had no trouble understanding how to access services and understood written

materials,(d) Reed's considerable experience with the dependency process

through prior dependencies, and (e)testimony that DBT was available at SMH

had Reed requested it.

      Reed next claims "[t]he State had a statutory obligation to offer court-

ordered mental health services and to actively coordinate with SMH to see that

they were provided."41 Reed cites no statutory authority supporting the

emphasized portions of her contention. In any event, the record indicates that

caseworkers Gordon and Hurd made efforts to communicate with Reed's service

providers, including SMH, and did so despite Reed's repeated assurances that

she was engaged in the required mental health services.

      When asked if she followed up on the referrals to New Traditions and

SMH, Patricia Gordon said "[y]es." Gordon testified that Reed told her she was

"already doing those services." Gordon asked who she was seeing so Gordon

could call them directly. Gordon said Reed gave her business cards of the

providers she was allegedly seeing, and Gordon tried to contact them. But

Gordon said "oftentimes" it turned out that Reed had just scheduled an

appointment and picked up a business card but had not started services.

Although Gordon did not recall specific conversations with Reed's case manager

at SMH,she testified she "would have spoken to a case manager once [Reed]

started her treatment." Gordon also testified that she contacts service providers


      41   (Emphasis added.)

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No. 75892-6-1 (consolidated with No. 75893-4-1)/25


before submitting dependency progress reports to the court, but Reed did not

regularly provide the releases necessary for her to do that. Similarly, Hurd

testified that Reed told her she was participating in services at SMH..Hurd asked

for and received permission to speak with Reed's SMH provider and

subsequently spoke with the provider by phone. The record does not support

Reed's claim.

       Last, Reed contends her caseworkers failed to ensure "that[she]

understood the importance of these services." But Gordon testified that she

explained to Reed "why she needed to participate in service[s]" and would have

asked "whether she [had] any understanding of the services, and why she's

engaged in those services." Gordon's letters, particularly the letter dated July 30,

2015, also emphasized the importance of Reed's services and their direct

relationship to reunification with her children. The July 30, 2015 letter expressly

referred to the "many conversations" Gordon and Reed had "about your services

and re-engagement" in those services. Gordon also testified that there were

times when Reed "was very clear about what she needed to do to reunify with

her children, and how she was going to change her life and... engage in her

treatment." Caseworker Hurd similarly testified that she spoke with Reed about

the importance of her services and "the concerns that. . . are the basis of having

her participate in the services." Reed's contention fails.




                                        25
No. 75892-6-1 (consolidated with No. 75893-4-1)/26


                                            CBT

       Whether the Department expressly and understandably offered or

provided CBT is less clear. As noted above, Gordon testified that she verbally

discussed with Reed how to access the services recommended by Dr. Shepel

and Reed corroborated that testimony. But while Gordon's service letter and

note expressly mentioned DBT, they did not mention CBT. Two service letters

did expressly refer Reed to SMH and New Traditions for "Individual Mental

Health Counseling," as recommended by Dr. Shepel. Since CBT is a modality of

individual mental health counseling,42 the letters arguably provide some evidence

that CBT was implicitly offered or provided. But given Reed's cognitive

impairment and the clear, cogent and convincing evidence standard, it is

questionable whether this evidence amounts to substantial evidence that CBT

was understandably offered or provided.

       We need not decide that question, however, because "even where the

State inexcusably fails to offer a service to a willing parent, ... termination is

appropriate if the service would not have remedied the parent's deficiencies in

the foreseeable future, which depends on the age of the child."43 This means


       42   Dr. Shepel testified in part:
                 Q: And you recommended with respect to individual therapy that she be
                 offered cognitive behavioral therapy, correct?
                 A: That's correct.

       RP (September 7, 2016) at 493.
       43   In re Dependency of T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001).


                                            26
No. 75892-6-1 (consolidated with No. 75893-4-1)/27


that when the record establishes that an offer of services would have been futile,

the trial court can make a finding that the Department has offered all reasonable

services." The record and findings in this case demonstrate that a more express

offer of CBT would have been futile.

       It is undisputed that Reed failed to complete the court-ordered services in

any of her dependencies. In her "CASA Court Report" recommending

termination, the CASA stated in part:

      . . . Ms. Reed has not engaged in services (other than a
      psychological evaluation)for two years in the current dependency
      case. She checked herself out of drug/alcohol treatment against
      medical advice in April 2014 and has not participated in court-
      ordered drug/alcohol treatment, random urinalysis testing or
      parenting classes since that date. While she did undergo a
      psychological evaluation in October 2014, Ms. Reed has not
      followed-up on any of the recommendations from that evaluation.
      Ms. Reed has also been unable to complete services in three other
      dependencies dating back to 2011, which has resulted in
      termination of her parental rights to her three older children.

      Ms. Reed has been unable to maintain a consistent visitation
      schedule for nearly a year at this point. She has missed multiple
      visits and has had her visitation contract cancelled for no-shows at
      least twice. She has also made and then missed appointments
      with other service providers. [The twins] are both high-needs
      children who require a parent or parents who can keep on top of
      various therapy and medical appointments and it is this CASA's
      opinion that Ms. Reed would find managing their care challenging.
      [J.L.] has life-threatening allergies and asthma that need constant
      vigilance and both children are enrolled in speech therapy.

       Finally, Ms. Reed's psychological evaluation shows that she will not
       be ready to successfully parent in the near future. In her report
       dated 10/26/2014,... [Dr.] Shepel ... described Ms. Reed's

       44 In re Welfare of Ferguson, 32 Wn. App. 865, 869-70, 650 P.2d 1118(1982),
rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503(1983).


                                         27
No. 75892-6-1 (consolidated with No. 75893-4-1)/28


      prognosis for safely and appropriately parenting her children as
      "guarded to poor."[45]

      In unchallenged findings, the court found that Reed failed to follow through

with services:

      2.10.3 Of the services ordered by the court, Ms. Reed completed
      only the age appropriate parenting classes. ..[and]a neuro-
      psychological evaluation as described below. She did submit to
      urinalysis testing but on a sporadic basis inadequate to determine
      whether she is currently using any non-prescribed drugs....


      2.10.7 To date Ms. Reed has not completed a court ordered
      chemical dependency program...

A number of the court's challenged findings also demonstrate futility and are

supported by substantial evidence:

      2.10.12 . . . the mother's contact with Sound Mental Health was
      sporadic and inconsistent. Ms. Harrison attempted to make
      arrangements for Ms. Reed to receive medication management,
      participate in trauma management group, and referral for a mental
      health counselor....

      2.10.13 The mother did not follow through on arrangements that
      Ms. Harrison had made for her to participate in a trauma
      management group or with medication management. She also did
      not seek Ms. Harrison's help in obtaining housing information....

      2.10.14 The mother was given numerous opportunities to access
      these services, but she made sporadic and inconsistent efforts to
      follow through with obtaining these services and failed to follow
      through with substance abuse treatment and mental health
      counseling to completion.

      2.11.3 The mother has been in dependency proceedings with her
      various children since approximately 2008. She has been made

      45   Clerk's Papers at 28.

      46   Id. at 216(emphasis added).

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No. 75892-6-1 (consolidated with No. 75893-4-1)/29


       well aware through this dependency, as well as the previous
       dependencies, of the need for her to seriously and consistently
       address her parental deficiencies in order to obtain reunification
       with her children.

       2.11.6 ... Even assuming that this trial inspired Ms. Reed to
       proceed with sincerity in obtaining these services, the expert
       testimony at trial was that the mother would not likely complete
       services for another twelve to eighteen months. Though the mother
       may be sincere in her desire to work toward having her children
       return to her care, there are serious questions about both her
       motivation and her ability to follow-through in light of her failure to
       take advantage of the necessary services that were previously
       offered by the state and were not utilized during the prior or current
       dependencies.

       2.11.7 Under the best case scenario, the mother could not address
       these deficiencies before a minimum of one year. However, given
       her previous failure to address her deficiencies in the prior
       dependencies, this court questions whether the mother would in
       fact be capable of doing so and following through to completion at
       this stage. Certainly for children of this young age who have never
       lived with their mother extending these dependencies for another
       year with the attendant risks would not create a likelihood that they
       could be returned to the mother in the near future.[47]

       In addition, Reed's SMH case manager testified she told Reed she had

referred her for weekly counseling with an SMH therapist. Despite that referral,

no such counseling occurred. While SMH concedes it bears some responsibility

for the failure of that referral to materialize, Reed bears responsibility given her

knowledge of the referral and the underlying service requirement and her own

inaction.

       Finally, Hannah Harrison testified that Reed did not consistently attend

appointments and that CBT would require consistent attendance. This had been


       47   Id. at 217-18.

                                          29
No. 75892-6-1 (consolidated with No. 75893-4-1)/30


Reed's weakness in other dependencies and was consistent with Dr. Shepel's

testimony that her cognitive limitations did not preclude her from benefitting from

services "if there is motivation to attempt and follow through." In her 2014 report,

Dr. Shepel presciently concluded that Reed "may not benefit from services

because of very high level of resistance and denial, dishonesty, and also the

history of relapses and quitting treatments, and not benefitting from previous

treatments."48

       The record thus supports a conclusion that a more express offer of CBT

would have been futile and would not have remedied Reed's parental

deficiencies within the foreseeable future.

       In conclusion, clear and convincing evidence supports the trial court's

finding that the Department understandably offered or provided Reed DBT.

Assuming without deciding that the Department failed to understandably offer or

provide CBT, provision of that treatment modality would have been futile.

       We affirm the order terminating parental rights to L.R. and J-L.R.




WE CONCUR:


    ir,cdkQ,J)
       48   RP (September 7, 2016) at 478(emphasis added).

                                         30
