                                                                         FILED
                                                                        MAY 5, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




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

In the Matter of the Parental Rights to      )
                                             )        No. 33276-4-III
J.L. Q-R; J.N. Q-R.                          )        (consolidated with 33277-2-III)
                                             )
                                             )
                                             )
                                             )         UNPUBLISHED OPINION
                                             )
                                             )

       FEARING, C.J. -The trial court entered a dependency order removing three

daughters from their home after the two oldest daughters accused the father of sexual

abuse and the mother denied the accusation of abuse. Upon entry of the dependency

order, the trial court ordered the State of Washington to provide the mother mental health

counseling and therapy with a Spanish-speaking counselor for the purpose, in part, of

convincing the mother to believe abuse occurred. The mother speaks only Spanish. The

State ignored the order and assigned a retired male police officer, who spoke only

English, to counsel the mother. The State then sought to terminate the mother's parental
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; JN.Q.-R.


rights to the two younger daughters. We reverse the parental termination order because

of the State's violation of the dependency order.

                                          FACTS

       This appeal concerns the Quijano family. The father and mother are Juan and Inez

Quijano. Juan and Inez are the biological parents of three daughters: Hannah, born in

1998, Julie, born in 2000, and Jacinta, born in 2007, and two young sons: Karl, born

2003, and Jesus, born 2011. Inez appeals from the trial court's termination of her

parental rights to her daughters, Julie and Jacinta. All names are fictitious. This factual

statement comes from the parental termination trial.

       Both Juan and Inez Quijano grew up in Central America and speak only Spanish.

Inez never attended school. At the time of trial, Inez Quijano lived in Wenatchee with

her two sons. Juan Quijano no longer occupied the family home. The three daughters            I
lived in a foster home in Chelan.

       The State of Washington removed Hannah, Julie, and Jacinta from the Quijano

home on August 19, 2013, because the two oldest daughters alleged their father sexually

abused them. Neither parent had any prior history with Washington's Child Protection

Services. After the removal, the State filed a dependency action for all three daughters.

       Inez Quijano denies that any of her daughters told her, before their removal from

the family home, of sexual assault. Nevertheless, both Julie and Hannah reported that

they recounted the abuse to their mother, that Inez confronted the father about the abuse,

                                             2
                                                                                              I
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; JNQ.-R.


and that the abuse then ended. The abuse ended one year before the first report to

authorities of molestation. In August 2013, Chelan County law enforcement arrested

Juan Quijano for child rape, but the State never prosecuted him after his release. He sat

in jail for three days.

          On August 19, 2013, the same day as the removal of the daughters from the
                                                                                               •.

Quijano home, Inez Quijano separated from Juan. Inez has not seen Juan since. Juan has

not returned to the home since. He has had no contact with his daughters. The State

entered a default order of dependency against Juan, and Juan never participated in             II
services during the dependency proceeding. Because of her view of God, Inez does not

consider divorce an option.

          The State deemed Inez Quijano's only parental deficiency to be neglect and failure

to protect her daughters. The State found no other deficiencies during the dependency

action.

          On December 2, 2013, the trial court entered orders of dependency for all three

daughters as to Inez. The orders with regard to Julie and Jacinta read, in part:

                [X] Services for the parents/guardians/legal custodians entered
          pursuant to RCW 13.34.130 ...                                                        I
                [X] as follows: As set out in the attached "Settlement proposal-
          [Hannah, Julie and Jacinto] - 11/27/13": follow recommendations of
                                                                                               I
          psychological evaluation[.]

Ex. 2 at 7. The settlement proposal attached to the order of dependency declared:



                                               3
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; JN.Q.-R.


              A hearing will be set on March 5, 2014, in the above-named
       dependency cases, at which time an order may be entered which places the
       child(ren) in the mother's home, if the following conditions are met:
               1. Mother [Inez] has participated in mental health counseling with a
       Spanish-speaking provider, who will include in therapy information on
       recognizing the signs/symptoms of victims of sexual abuse;
              2. [Inez] has participated in the mental health counseling of her
       daughters [Hannah], [Julie] and [Jacinto] at Children's Home Society on a
       weekly basis, as recommended by the children's counselor(s); and
              3. The providers of counseling/therapy in nos. 1-2 above report that
       [Inez] has made progress and that there are no concerns for the safety of the
       child(ren) if returned to the mother's home under court supervision.

Ex. 2 (emphasis added).

       The orders of dependency directed the State of Washington to provide and Inez

Quijano to engage in individual therapy, family counseling, and psychological

evaluation. The State offered the services to increase Inez's understanding of sexual

abuse and to prepare a safety plan so abuse would not reoccur. The State, however, did

not consider development of a safety plan a service. According to John Plotz, the State

caseworker assigned to the Quijano case, Inez Quijano completed all services and was

cooperative. Inez, without any order, also completed a parenting class. The parenting

class taught Inez how to speak and draw close to her daughters. Inez periodically visited

with her daughters, and no problems arose with visitation.

      At the request of the State, Inez Quijano obtained a protection order against her

husband that precluded his contact with her and the family. The State told Inez she

needed to obtain the order in order to regain custody of her children. The safety plan


                                            4
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJL.Q.-R.; JNQ.-R.


included the order. The language of the petition for the protective order and the order

was English, but translated to Inez in Spanish. Inez's attorney placed in the petition,

signed by Inez, the following language: "Ms. [Q] has expressed her beliefs that the

alleged abuse did not occur but is willing to get a protection order and comply with the

protection order to have her daughters placed in her home." Ex. 15 at 5, 6.

       On November 19, 2013, Dr. John Fishburne, a Wenatchee psychologist,

performed a psychological evaluation, at the request of the State, of Inez Quijano.

Fishburne does not speak Spanish. When performing an evaluation, Fishburne usually

takes a history, performs a diagnostic interview, conducts intelligence or cognitive

testing, and prepares a personality assessment. Because of a language barrier, Fishburne

only performed, through a translator, a diagnostic interview of Inez. He "hoped" this

limited evaluation would be reliable.

       When speaking with John Fishburne, Inez Quijano spoke only in a positive light.

During the interview, Inez was cooperative, pleasant, often tearful, intense, sincere, and

never defensive directly. She reiterated her daughters were good and her husband could

not have abused the daughters.

       Dr. John Fishburne diagnosed Inez Quijano with an adjustment disorder and

personality disorder, not otherwise specified. As a result of his diagnosis, Dr. John

Fishburne recommended that the State provide Inez therapy, parenting classes, and later

in home services if the State returned the daughters to their home. Dr. Fishburne believes

                                             5
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


that Inez and the dependency process would have benefitted from a psychologist who
                                                                                            I
spoke Spanish, rather than him, performing the psychological evaluation. Fishburne

desired the State to appoint, for Inez, a Spanish-speaking counselor who understood her

background and culture.

       The State of Washington assigned a white male, Michael Magnotti, to counsel

Inez Quijano. Magnotti has been a mental health and relationship counselor since 2006.

He served as a Wenatchee police officer from 1986 to 2006. The State asked Magnotti to

help Inez understand the sexual abuse so that she would cooperate in forming a safety

plan for her daughters to return home. Magnotti believed the father abused the daughters.

       Michael Magnotti counseled Inez Quijano on eighteen occasions from December

2013 to April 2014. Magnotti does not speak Spanish and employed an interpreter to

speak with Inez. Magnotti does not believe that having an interpreter impeded his ability

to provide Inez with mental health services because Inez never said "I don't understand"

or "the translation's bad." Report of Proceedings (RP) at 169.                              f
      During the counseling of Inez Quijano, Michael Magnotti never developed a             I
rapport with Inez. Michael Magnotti believes he was not the best counselor for Inez. In     i
the end, Inez insisted her husband was innocent and that her daughters lied, used drugs,

and were misinfluenced by others. Magnotti quit counseling sessions because of an           I
impasse. He provided no therapy to Inez.
                                                                                            If
                                            6
                                                                                            I
                                                                                            t
                                                                                            I
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; J.NQ.-R.


       According to State caseworker, John Plotz, the State of Washington recognizes

merit to assigning Spanish-speaking service providers to monolingual clients. During

trial and on direct examination, Plotz testified to an absence of Spanish-speaking

psychologists in the Wenatchee area or surrounding regions. He did not identify the

geographic area included in the surrounding regions. On cross-examination, John Plotz

corrected his testimony and stated that the State had no Spanish-speaking psychologists

on contract in this area. He further testified the State was "bound by the contract." RP at

194. He did not specify what he meant by "the contract," nor testify why the State was

bound by a contract. RP at 194.

       Mackenzie Miller, at Children's Home Society in Wenatchee, counseled Hannah

and Julie individually once a week for one hour from September 2013 to September

2014. Miller diagnosed each daughter with posttraumatic stress disorder because of

each's respective history and symptoms. She directed the girls to write a narrative about

how the abuse felt and their resulting struggles. Miller taught each girl ways to keep

herself safe. Julie and Hannah expressed dismay with the little contact they had with

their brothers. Miller deemed a relationship with the brothers as important for the girls'

health. Hannah and Julie had earlier provided some of the parenting for the boys.

       Mackenzie Miller engaged in family therapy with Inez, Hannah, and Julie Quijano

two or three times in late 2013 or early 2014. Miller warned the two daughters in

advance that discussing the sex abuse with the mother would not help because of the

                                             7
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJL.Q.-R.; JNQ.-R.


mother's denial. Both girls wanted to voice their concerns anyway to their mother with

Miller present. During one or more sessions, Inez Quijano insisted that no abuse

occurred and that the daughters were lying. She cried when the allegations were

discussed. Inez refused to participate in preparing a safety plan in the event the father

suddenly returned home. In the end, Miller deemed the sessions partly productive in that

the daughters expressed themselves and she had prepared the daughters for their moth.er's

response.

       Edith Pasion, also a counselor at Children's Home Society, provided counseling

for the youngest daughter, Jacinta, beginning in September 2013. Jacinta encountered

distress when first placed in foster care because of missing her mother and her father

being in jail. She experienced nightmares, hid in closets, wet her bed, and cried often.

Pasion diagnosed Jacinta with posttraumatic stress disorder. According to Pasion, the

disorder could have resulted from being removed from her mother. Jacinta improved

with therapy. Pasion is fluent in Spanish and also translated for Inez Quijano when

Mackenzie Miller provided family counseling.
                                                                                              I
                                                                                              I
       The two brothers, who reside with Inez Quijano, miss their sisters.

                                      PROCEDURE

       On October 30, 2014, the State petitioned to terminate Juan and Inez Quijano's

respective parental rights to Hannah, Julie, and Jacinta. The State later terminated Juan's
                                                                                              ,
                                                                                              i

rights by default. The trial to terminate Inez's rights to her daughters proceeded on         I
                                             8
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


March 9, 2015, and lasted one day. At the start of trial, the State dismissed the

termination petition for the oldest daughter, Hannah.

       During trial, the State called Inez Quijano, Mackenzie Miller, Mike Magnotti,

John Fishburne, Edith Pasion, John Plotz, and guardian ad litem Marge Littrell as

witnesses. Inez Quijano testified through a translator. Inez Quijano called no witnesses.

       During Inez Quijano's testimony, the State of Washington asked her whether she

would prevent her husband Juan from returning to the home, with or without a court

order. Inez responded that the judge controlled whether Juan could return home. She

affirmed that her husband did nothing wrong, but she would not revoke the protection

order so that she could keep custody of her daughters.

       During her testimony, Inez Quijano insisted that she participated in all services

required. She declared that she would protect her daughters.

       Social worker John Plotz testified at trial that the services provided by the State

did not correct Inez Quijano's parental deficiencies. He did not know of any other

service the State could provide to correct the deficiencies when she continued to deny the

abuse. Plotz averred that there is no likelihood that conditions will change such that the

children can return to their mother in the near future.

       During the direct examination of John Plotz, the trial court asked defense counsel

if he intended to object to the leading questions that the State's counsel posed Plotz. The

court commented that the State's attorney is "doing all the testifying." RP at 191.

                                              9
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


       During cross-examination, John Plotz admitted that, to his knowledge, Juan

Quijano has not attempted to contact the daughters. He expressed, however, a concern

that the husband might return to the home.

       During trial, psychologist John Fishburne testified Inez Quijano's rigidity created

a barrier to services. This rigidity also compromised her ability to parent. Unless Inez

Quijano recognized abuse occurred, additional services would be futile. At the same

time, Fishburne averred that Inez would benefit by therapy specifically targeted to her

and by a counselor who spoke Spanish. He agreed that a child of a parent with a

personality disorder can lead a productive life.

       During trial, counselor Michael Magnotti insisted that Juan Quijano abused his

daughters. Also, without Inez admitting to the abuse, he would not recommend the return

of the daughters. Magnotti would not concede the possibility that the daughters lied.

       Therapist Mackenzie Miller testified that Hannah, Julie, and Jacinta would not be

safe if they returned home because of a lack of trust in their mother and an inability to

speak with their mother. Miller opined that Inez Quijano cannot protect her daughters

without admitting to the abuse that occurred.

       During trial, the State asked Edith Pasion, Jacinta's counselor:

             Q: ... Given what we've discussed today, Ms. Pasion, do you have
      an opinion as to whether it would be safe for [Jacinta] to return home at this
      point?
             A: (no audible response)
             Q: Or in her best interest?

                                             10
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


             A: At this point in time ... You know, this is a difficult answer.
      Question to answer. It is and it isn't because I did part of the family and I
      know that mom loves her children, but I think my place today is to advocate
      for [Jacinta] and for her best interest and her safety and her wellbeing, and
      my response, based on what I've answered so far, would be no.

RP at 92 (emphasis added).

       During her testimony, Edith Pasion opined the girls should not be returned home

unless the mother takes their side. She later limited this opinion to only the two oldest

daughters, not to Jacinta. She also wanted to be assured one hundred percent that dad

would not return home. Pasion first averred that all Quijano daughters, if returned home,

would continue to be traumatized by what previously occurred. On cross-examination,

she conceded Jacinta would not suffer continuing trauma since she never reported any

trauma to her. Pasion could not answer the question of how long the father must be gone

for her to conclude he will not return. She did not know why the court could not prepare

a safety plan for the children to return home. Pasion added that Jacinta is bonded with

her foster mother. She worried that, if Jacinta's father or another man abused her, the

mother would not believe a report of abuse.

       Guardian ad litem Marge Littrell recommend that parental rights be terminated

with Julie and Jacinta. She would not recommend the children return home without Inez

Quijano agreeing the abuse occurred.




                                              11
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.N.Q.-R.


      The trial court granted the State's petition and terminated Inez Quijano's rights to

Julie and Jacinta. The court entered the following findings of fact with respect to each

daughter:

             2.12 Services Offered or Provided. All services ordered pursuant to
      RCW 13.34.130, and RCW 13.34.136, and all necessary services
      reasonably available, capable of correcting the parental deficiencies within
      the foreseeable future, have been expressly and understandably offered or
      provided.
             2.12.1 The services ordered for the mother were a psychological
      evaluation, participation in individual therapy, and participation in therapy
      with the children. The mother completed these services. Visitation is not a
      service, however the mother did attend all visitation. The mother
      completed parenting education classes.

              2.12.3 There are no other services that have been identified or
      requested that are reasonably available and capable of correcting the
      parental deficiencies within the foreseeable future. The department made
      all reasonable efforts to remediate the parental deficiencies.
              2.12.4 The mother did not request or identify any additional
      services. The mother argues that Spanish speaking providers would have
      been preferable. The mother argues that female providers would have been
      preferable, specifically referring to the individual counseling provided to
      her by Mike Magnotti. The department is limited to contracted service
      providers and cannot pick the best providers in every case. There is no
      evidence that Spanish speaking providers were available. There is no
      evidence that a female counselor was available to provide counseling
      services. There is no evidence that Mike Magnotti provided inadequate
      services. There is no evidence to support that a different result would have
      been reached if Spanish speaking or female service providers were
      available. Mr. Magnotti testified that after several months of working with
      the mother no progress was made. Mr. Magnotti's position that no progress
      was made is no different than the experience of all other service providers
      in the case, the case worker, the Guardian ad Litem and the Court in
      interacting with the mother.

CP at 85-86. Other important findings are in an appendix.

                                            12
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.



                                  LAW AND ANALYSIS

       Inez Quijano contends, among other assignments of error, that the trial court erred

in finding that the State fulfilled its statutory obligation to provide all necessary services

reasonably available and capable of correcting her parental deficiencies. She argues that

the State failed to offer mental health services tailored to her specific needs because the

State only offered her counseling with monolingual English-speaking providers. Inez

maintains that her only hope of reunification with her daughters was to obtain sufficient

insight to overcome her unqualified denial of her daughters' allegations and she could not

achieve that level of insight with the providers to whom the State referred her. We agree.

The State violated its obligation to provide services when it failed to obey the

dependency order's directive to provide Spanish-speaking services and to provide

therapy. The State also violated its duty when failing to deliver services personalized for

Inez's needs.

       A parent's right to control and custody of her children is a fundamental civil right.

In re Dependency ofK.NJ., 171 Wn.2d 568, 574, 257 P.3d 522 (2011). As the United

States Supreme Court observed:

               The fundamental liberty interest of natural parents in the care,
       custody, and management of their child does not evaporate simply because
       they have not been model parents or have lost temporary custody of their
       child to the State. Even when blood relationships are strained, parents
       retain a vital interest in preventing the irretrievable destruction of their
       family life. If anything, persons faced with forced dissolution of their

                                              13
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJL.Q.-R.; JNQ.-R.


       parental rights have a more critical need for procedural protections than do
       those resisting state intervention into ongoing family affairs.

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

       In Washington State, termination of parental rights entails a two-step process. In

re Welfare of C.B., 134 Wn. App. 942, 952, 143 P.3d 846 (2006). First, the State must

show that six statutory requirements under RCW 13 .34.180( 1) are established by clear,

cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). This means the State must

show that the relevant ultimate facts in issue are "' highly probable.'" In re Dependency

of KR., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare ofSego, 82

Wn.2d 736, 739, 513 P.2d 831 (1973)). Second, the State must show by a preponderance

of the evidence that termination is in the best interests of the child. RCW

13.34.190(1)(b); In re Welfare of MR.H, 145 Wn. App. 10, 24, 188 P.3d 510 (2008).

       Inez Quijano focuses on the fourth of the six initial statutory requirements, the

State's provision of services needed to correct deficient parenting skills. When the State

seeks to terminate a parent's rights, it must show, in part, by clear, cogent, and

convincing evidence:

              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.




                                             14
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.N.Q.-R.


RCW 13.34.180(1)(d) (emphasis added). Under this statute, the State must provide all

court-ordered and necessary services to the parent. In re Dependency ofD.A., 124 Wn.

App. 644, 650-51, 102 P.3d 847 (2004). To meet its statutory burden, the State must

tailor th~ services it offers to meet each individual parent's needs. In re Dependency of

T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001).

          In addition to the services ordered by the court in the dependency order, the State

must identify the necessary services in a permanency plan within sixty days of the child's

removal from the home. RCW 13.34.136(1). Moreover, and most relevant to this

appeal:

             The supervising agency or department shall provide all reasonable
      services that are available within the department or supervising agency, or
      within the community, or those services which the department has existing
      contracts to purchase. It shall report to the court if it is unable to provide
      such services.

RCW 13.34.136(2)(b)(vii) (emphasis added).

      In seeking to terminate Inez Quijano's parental rights, the State disingenuously

suggests that it need only offer services to parents through providers who hold contracts

with the State. DSHS social worker John Plotz testified that Spanish-speaking providers

were available in the region, but that DSHS could not refer Inez to them because they

were not contracted with the State. RCW 13.34.136(2)(b)(vii) directs otherwise. The

statute commands that DSHS "shall" provide all reasonable services, and those services

are not limited to those providers with whom DSHS has an existing contract. The statute

                                               15


                                                                                                I
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


expressly reads that the "department shall provide all reasonable services that are

available within the department or supervising agency, or within the community, or those

services which the department has existing contracts to purchase." RCW

13.34.136(2)(b)(vii) (emphasis added). Note that the disjunctive "or" separates those

services within the community and those services for which the State has existing

contracts.

       The State of Washington also ignores the dictate of RCW 13 .34 .180( 1)( d), which

demands that "the services ordered under RCW 13.34.136 [be] ... expressly and

understandably offered or provided." (Emphasis added.) The statute provides no excuse

to the State to avoid providing services ordered but not available with providers under

contract. Washington decisions repeat the obligation to provide ordered services. The

State must provide all court-ordered and necessary services to the parent. In re

Dependency ofD.A., 124 Wn. App. at 651 (2004 ). The statute expressly requires both

that all services ordered have been provided, and that all necessary services reasonably

available have been provided. In re Dependency ofTL.G., 126 Wn. App. 181, 200, 108

PJd 156 (2005).

       The State violated its duty by failing to provide counseling and therapy to Inez

Quijano with Spanish-speaking providers. The dependency order expressly directed Inez

to complete "mental health counseling with a Spanish-speaking provider." Ex. 2

(Settlement Proposal (revised)). The order's section on services, with the attachment to

                                            16
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


the order, directed the State to provide "mental health counseling with a Spanish-

speaking provider, who will include in therapy information on recognizing the

signs/symptoms of victims of sexual abuse." Ex. 2 (Settlement Proposal (revised))

(emphasis added).

       We find the State's view that it need not obey a court order disconcerting. All

other individuals and entities must obey court orders. The State should be the first to

obey. As Justice Brandeis wrote eight-eight years ago, the State is "the omnipresent

teacher" that "[f]or good or ill, teaches the whole people by its example." Olmstead v.

United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (J. Brandeis

dissenting) overruled in part on other grounds by Katz v. United States, 389 U.S. 347, 88

S. Ct. 507, 19 L. Ed. 2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873,

18 L. Ed. 2d 1040 (1967). The State's demand that Inez Quijano follow the court

dependency order in order to regain custody of her daughters is hypocritical when it

ignores the same order.

       The State's own testimony supported the need for counseling and therapy in the

Spanish language. John Plotz testified that the State prefers Spanish-speaking providers

when a parent is monolingual. Dr. Fishburne testified that he forewent portions of his

psychological assessment of Inez because of language barriers. While Dr. Fishburne

testified that his limited evaluation did not affect his diagnosis of Inez, he admitted that

he normally conducts the omitted tests when completing an intake session with a client.

                                              17
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


Dr. Fishburne also recommended to the State that therapy and counseling of Inez be

performed in Spanish. Michael Magnotti, who speaks no Spanish, never developed a

rapport with Inez Quijano.

      The State providers acknowledged that Dr. Fishburne and Mike Magnotti, two

Caucasian, male, monolingual English-speaking United States citizens, were not the ideal

providers for Inez, a Salvadoran, female, monolingual Spanish-speaking immigrant. The

American Psychological Association (AP A) would agree. The AP A notes in particular:

             Research on culturally adapted interventions indicates that
      interventions in clients' native languages are more effective than those
      conducted in English, culturally adapted interventions are more effective
      than those not targeted to specific cultural groups, and ethnic matching in
      the therapeutic dyad is likely to improve client retention and therapeutic
      outcomes.

AM. PSYCHOL. Ass'N, WORKING WITH IMMIGRANT-ORIGIN CLIENTS: AN UPDATE FOR

MENTAL HEALTH PROFESSIONALS 8 (2013), http://www.apa.org/topics/immigration/

immigration-report-professionals.pdf. In some instances, a lack of cultural competency

can lead to misdiagnosis or overpathologization of immigrant clients. See also AM.

PSYCHOL. Ass'N, CROSSROADS: THE PSYCHOLOGY OF IMMIGRATION IN THE NEW

CENTURY 32-3 3 (2012), http://www.apa.org/topics/immigration/immigration-report.pdf.

      Eastern Washington has a particular need for the State of Washington to offer

Spanish-speaking services to Hispanic parents. As of the 2010 United States census, 25.8

percent of Chelan County, Inez Quijano's home county, were Hispanic or Latino. Other



                                           18
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; JN.Q.-R.


eastern Washington counties have large and economically essential Hispanic populations:

Douglas County 28.7 percent; Grant County 38.3 percent; Yakima County 45 percent;

Franklin County 51.2 percent; and Adams County 59 .3 percent. Of course, not all

Hispanics are monolingual Spanish. We have no statistic as to the number of

monolingual Hispanics in Washington State or eastern Washington, but nine percent of

Hispanics nationwide are monolingual. Many English-speaking Hispanics view Spanish

as their first language and converse more comfortably in the Spanish tongue.

       John Plotz's testimony that the State had no Spanish-speaking psychologists under

contract lacks plausibility. Spanish-speaking Edith Pasion provided services for Jacinta.

The State does not explain why Pasion could not be available to provide services to Inez.

The State may not wish the same counselor to counsel both the mother and the daughter,

but the State never provided evidence of this desire and following the court order should

have assumed precedence over such a wish.

       If a Spanish-speaking counselor was not available, the State should have known of

this unavailability before entering the dependency order and objected to any language

requiring the Spanish speaker. At the least, the State should have notified the trial court

of the unavailability of Spanish language services long before filing the termination

petition and asked for a modification to the dependency order. The last sentence of RCW

13.34.136(2)(b)(vii) demands that the State report to the court if it is unable to provide

ordered services.

                                             19
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; JNQ.-R.


       The State also violated the dependency order by failing to provide Inez Quijano

therapy. The December 2, 2013, order directed the State to provide mental health

services that "will include in therapy information on recognizing the signs/symptoms of

victims of sexual abuse." Ex. 2 (Settlement Proposal (revised)) (emphasis added). The

order further directed the "[t]he providers of counseling/therapy in nos. 1-2 above report

that [Inez] has made progress and that there are no concerns for the safety of the

child(ren) if returned to the mother's home under court supervision." Ex. 2 (Settlement

Proposal (revised)). Mike Magnotti testified that he provided counseling, but not

therapy. Dr. John Fishburne diagnosed Inez with a personality disorder, which is a

psychological condition highly resistant to treatment and more alterable with therapy,

rather than merely counseling.

       The dependency order like the psychological profession recognizes a distinction

between counseling and therapy. On the one hand, counseling services denote short-term

treatment for clients with a specific and immediate need such as improving relationships,.

alleviating stress, or changing a lifestyle. A counselor focuses on the present tense.

Therapy consists of all the components of counseling with additional services. Therapy

connotes a longer duration of assistance and addresses the client's extended past. The

therapeutic process helps the client to find the root causes of emotional and behavioral

patterns. Therapy explores one's past in order to gain more understanding about one's        tl
moods, feelings, and ways of thinking. Since therapy addresses root causes, therapy
                                                                                             I
                                            20
                                                                                             I
                                                                                             t
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


would have better assisted Inez Quijano in understanding the nature of sexual abuse and

in recognizing the need to be supportive of her daughters when they speak of abuse.

       The State may contend that Mackenzie Miller, when meeting with Hannah, Julie,

and Inez Quijano, provided group therapy. Miller never characterized her counseling

sessions with all three present as therapy. Any such therapy was not individual therapy

for Inez Quijano or focused on her needs. The dependency order required individual

therapy, and the trial court found, in finding 2.12.1, that the order of services included

individual therapy.

       The State also breached its duty to tailor the services it offered to meet Inez

Quijano's individual parental needs. Dr. John Fishburne testified that Inez needed a

provider who was culturally competent and capable of providing treatment specifically

targeted to sexual abuse. Counselor Michael Magnotti may have possessed the latter

qualification, but even he admitted that he lacked the former characteristic.

       We affirm the trial court's findings in a parental rights termination proceeding so

long as they are supported by substantial evidence from which a rational trier of fact

could find the necessary facts by clear, cogent and convincing evidence. In re

Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). Whether substantial

evidence exists to support the superior court's findings is measured in light of the "highly

probable" test. In re Welfare of Carpenter, 21 Wn. App. 814, 816, 587 P.2d 588 (1978).

Under that test, the evidence must be more substantial than in the ordinary civil case in

                                             21
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJL.Q.-R.; JNQ.-R.


which proof need only be by a preponderance of the evidence. In re Welfare of Hall, 99

Wn.2d 842, 849, 664 P.2d 1245 (1983). The evidence establishes a "high probability"

when permanent deprivation is necessary for the physical and mental welfare of the child.

Carpenter, 21 Wn. App. at 816.

       The trial court found that the State expressly and understandably offered or

provided all ordered services. The undisputed evidence shows otherwise. No Spanish-

speaking service providers assisted Inez Quijano.

       The trial court found that the State is limited to contracted service providers and

cannot pick the best providers in every case. The trial court also found that Spanish-

speaking providers were unavailable. The first finding is more in the nature of a

conclusion of law because the court ruled that the department need not seek services from

providers not under a contract. As explained above, this legal premise is erroneous. We

hold that the second finding is not supported by substantial evidence. The trial court

likely based its finding on the presumption that Spanish-speaking services were available

only if the State had a contract with a Spanish-speaking provider. This presumption is

false. John Plotz testified that Spanish-speaking providers were available in the

Wenatchee 'region, but not under contract. Edith Pasion provided Spanish-speaking

counseling. Regardless, the lack of availability of a Spanish-speaking counselor and

therapist is immaterial, since the dependency order directed services be provided in Inez

Quijano's language.

                                            22
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


       The trial court, in its findings of fact, never addressed whether the State provided

therapy to Inez Quijano or whether the State tailored services to Inez Quijano's needs.

The undisputed evidence supports the conclusion that the State breached these

obligations to provide services. In short, the State failed to prove compliance with RCW

13 .34.180( 1)( d) by clear, cogent, and convincing evidence.

                                     Futility of Services

       If the State fails to provide all necessary services, but the evidence in the record

nonetheless shows that such services would not have remedied a parent's deficiencies in

the foreseeable future, this court will uphold the termination. In re Welfare ofHall, 99

Wn.2d at 850-51 (1983). Stated differently, when the record establishes that the offer of

services would be futile, the trial court can make a finding that the State has offered all

reasonable services. In re Welfare of MR.H, 145 Wn. App. at 25 (2008). In light of this

principle, the State argues that assigning Inez Quijano a different provider would have

been futile because her refusal to recognize or admit the possibility that her husband

abused her daughters remained unchanged during the entire eighteen-month dependency

and because the evidence showed Inez would make no progress in the foreseeable future.

Inez Quijano contends that the record demonstrates that the assignment of Spanish-

speaking providers would not have been futile because she was willing to participate in

any services necessary to have her children returned. She emphasizes that State

witnesses admitted that Spanish-speaking providers would have been preferable.

                                             23
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


       We hold in favor of Inez Quijano with regard to the alleged futility of services for

three reasons. First, the record is not clear who the trial court treated as bearing the

burden of proving futility or the lack thereof. Second, the trial court never addressed
                                                                                               f
whether individual therapy was futile. Third, we question whether providing services in
                                                                                               I
a monolingual parent's indigenous language should ever be considered futile.

       In its appellate brief, the State argues that, in order to prevail, Inez Quijano must
                                                                                               .I
                                                                                               .



provide evidence from the trial record demonstrating how a different provider would

have corrected her parental deficiencies. By framing its argument in this language, the

State imposes the burden of showing a lack of futility on Inez Quijano. The trial court's

findings may echo the State's burden allocation. In findings of fact 2.12.4 to 2.13, the

court wrote:

             2.12.3 There are no other services that have been identified or
      requested that are reasonably available and capable of correcting the
      parental deficiencies within the foreseeable future ....

             2.12.4 ... There is no evidence that Spanish speaking providers
      were available. There is no evidence that a female counselor was available
      to provide counseling services. There is no evidence that Mike Magnotti
      provided inadequate services. There is no evidence to support that a
      different result would have been reached if Spanish speaking or female
      service providers were available ....
             2.13 Potential for Remedial Action. There is little likelihood that
      conditions will be remedied so that the child can be returned to either
      parent in the near future.

CP at 85-86.




                                             24
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


        The findings of fact, read as a whole, suggest the trial court considered the State to

carry the burden of proof, on clear and convincing evidence, to show ordered or

additional services would be futile. Nevertheless, the trial court, in finding of fact 2.12.4,

repeatedly wrote that "there is no evidence" to support factual assertions concerning the

need for individualized services forwarded by Inez Quijano. This language suggests the

trial court imposed on Inez the burden of proof or production to defeat the State's claim

of futility.

        We disagree with assessing the burden of proof or a burden of production on Inez

Quijano. Contrary to the State's framing of the futility doctrine, Inez does not bear the

burden of proving anything. In re Welfare of Hall, 99 Wn.2d 842 (1983), the first case in

which our Supreme Court articulated and applied the futility rule, makes no mention of a

parent needing to point to evidence in the record to prove that she would have improved

in the foreseeable future had appropriate services been ordered. No case imposes the

burden of proof concerning the lack of futility on the parent. Under statute, the State

must offer all ordered and necessary services, and the futility doctrine is an exception to

the general rule. The State should carry the burden of proving an exception and the yoke

of excusing its violation of a court order.

        The State failed to provide Inez Quijano individualized therapy with a Spanish-

speaking provider, despite the dependency order mandating this service. The State may

deny that therapy, and even therapy in the Spanish language, would have helped.

                                              25
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


Nevertheless, the trial court never entered a finding that therapy would be futile. Instead

the trial court failed to recognize that the court previously ordered therapy in Spanish and

that Michael Magnotti conceded he provided no therapy.

       We question whether services ordered in the parent's only language should ever be

found futile. As previously written, the American Psychological Association promotes

the need for psychological interventions in the client's native tongue. Therapy, which

includes an extensive reach into the client's background, culture, and religion, should

particularly be conducted in the client's home language. A Spanish-speaking therapist,

with an understanding of Central American culture, could have better empathized with

Inez Quijano and broken Inez's barriers to recognizing sexual abuse of her daughters.

       Inez Quijano demonstrated a willingness to complete all services and comply with

court orders. When reunification depends on one particular factor and the State fails to

provide ordered and helpful services to address the factor, the State should not be

excused from providing less than optimal service providers on the basis of futility.

       Related in nature to the futility doctrine is RCW 13 .34 .180( 1)( e), the fifth of the

sixth initial factors in parental termination, which reads, in relevant part:

               That there is little likelihood that conditions will be remedied so that
       the child can be returned to the parent in the near future. A parent's failure
       to substantially improve parental deficiencies within twelve 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 child can be returned to the parent in the near future. The
       presumption shall not arise unless the petitioner makes a showing that all

                                              26
No. 33276-4-III (consolidated with 33277-2-III)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


       necessary services reasonably capable of correcting the parental
       deficiencies within the foreseeable future have been clearly offered or
       provided.

       The State argues that Inez Quijano failed to rebut the presumption contained          I
within RCW 13.34.180(1)(e) that "there is little likelihood that conditions will be          I
remedied so that the child can be returned to the parent in the near future" because she

failed to improve substantially within twelve months of the entry of the order of

dependency. Nevertheless, RCW 13.34.180(l)(e)'s rebuttable presumption does not

apply here because the State fails to show "that all necessary services reasonably capable

of correcting the parental deficiencies within the foreseeable future have been clearly

offered or provided." We have already held that the State failed to provide such

necessary services.

       This appeals raises many issues other than whether the State provided necessary

and ordered services. We do not reach these other questions. Inez Quijano may raise the

issues again if the State files another petition to terminate her parental rights.

                                       CONCLUSION

       We reverse and dismiss the petition to terminate Inez Quijano's maternal rights to

Julie and Jacinta. The dismissal is without prejudice in that the State may file another

petition after providing services consistent with this opinion.




                                              27
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJL.Q.-R.; JN.Q.-R.


       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Pennell, J.




                                            28
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.NQ.-R.


                                         Appendix

                               Additional Findings of Facts

              2.13 Potential for Remedial Action. There is little likelihood that
      -conditions will be remedied so that the child can be returned to either
      parent in the near future.
              2.13 .1 . . . Prior to the dependency being established, throughout the
      life of the dependency and by her testimony at trial, the mother has refused
      to acknowledge that the sexual abuse occurred or even to entertain the
      possibility that the sexual abuse occurred. The mother's unwavering denial
      that the sexual abuse occurred has been expressed to all service providers,
      the case worker and the court. The mother testified that she believed her
      daughters lied about the abuse and that the accusations were the result of
      "bad influence" on behalf of unidentified friends. The mother testified that
      her husband could never have committed the abuse and that he was a "good
      man." The testimony reflects that when confronted about the abuse in
      group therapy sessions her response was to accuse the child of lying and to
      continue to deny that the abuse occurred.
              2.13.2 The mother's primary current deficiency that prevents her
      daughters from being returned to her care is her inability to accept that the
      sexual abuse perpetrated by her husband occurred or even to accept the
      possibility that the abuse occurred. The court finds that even if a parent had
      doubts about the accusations, a fit parent would have taken steps to protect
      the children and make sure the children were safe. The mother did not take
      the steps a fit parent would take to protect and keep the [sic] her daughters
      safe. The mother's priority is her husband rather than her daughters.

              2.13 .4 The mother's failure to substantially improve her parental
      deficiencies within twelve months following entry of a dispositional order
      has given rise to a rebuttable presumption that there is little likelihood that
      conditions will be remedied so that the child can be returned to the mother
      in the near future. The mother has not rebutted the presumption. For
      [Julie] the near future and foreseeable future is six months to one year. For
      [Jacinta] the near future and foreseeable future is three months to six
      months. There is no evidence that conditions would change for the mother
      over the next twelve months given that nothing has changed in the eighteen
      months since the children were physically removed from the home. The
      posture of the case at the time of trial is the same as at the time of removal.

                                            29
No. 33276-4-111 (consolidated with 33277-2-111)
In re Parental Rights ofJ.L.Q.-R.; J.N.Q.-R.


      The court makes an affirmative finding that the mother is currently unfit to
      parent for all the reasons stated above.

             2 .17 Best Interests of the Child. The court finds by a preponderance
      of the evidence that termination of the parent-child relationship is in the
      best interests of the child. The testimony of the guardian ad litem, the case
      worker, the psychologist and the therapists support that termination is in the
      best interest of the child.




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