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

In the Matter of the Dependency of                No. 71241-1-1
                                                  consolidated with
G.G., JR., b.d. 11/07/04,                         No. 71242-0-1 and
J.D.G., b.d. 09/30/03,                            No. 71243-8-1
S.M.M., b.d. 11/23/99,

                      Minor Children.



DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

                      Respondent,

                                                  ORDER DENYING MOTION
                                                  FOR RECONSIDERATION,
ITZEL JIMINEZ SALAZAR,                            WITHDRAWING & REPLACING
                                                  OPINION
                      Appellant.


         Appellant filed a motion for reconsideration of the court's December 1, 2014

opinion. Legal Voice filed an amicus brief in support of appellant's motion. Respondent

Department of Social and Health Services filed an answer. The court has considered

the motion, the amicus brief, and the answer and determined that reconsideration

should be denied, but that the opinion should be withdrawn and a replacement opinion

filed.

         The opinion has been changed by replacing the first full paragraph on page 17

with the following:

             "Salazar next challenges the court's finding that her poor relationship
choices render her unfit to parent. The trial court found:
      2.24   The mother's parental deficiencies included impaired
             judgment in her relationship choices, which is likely a result of
             her cognitive impairments. The mother's relationship choices
             place her and her children at risk of domestic violence.[fn]

The record supports this finding. Although domestic violence victims face great
challenges, a parent must exercise good judgment to avoid genuine risk of harm to her
children. Here, the focus of the trial court's finding was not based on Salazar's status
as a domestic violence victim; it was her failure to make appropriate choices and
participate in recommended services to address parental deficiencies related to
domestic violence trauma that placed her children at risk of harm.
Fn. Clerk's Papers at 11."

      The opinion was further changed on page 18 by deleting from the fourth

sentence in the first full paragraph the phrase "and that she was later involved in

a domestic violence incident where she was found to be intoxicated."

       Now, therefore, it is hereby

       ORDERED that appellant's motion for reconsideration is denied. It is further

       ORDERED that the opinion of this court filed December 1, 2014 is withdrawn and

a replacement opinion is filed.

       Dated this (     day of February, 2015.




                                                                                      CJ-l
                                                                                      ••"I \
                                                                                      m        P". __.

                                                                                       t
                                                                                      V0       -s-:c
                                                                                               ---V "•„

  IAcAoW                ~J                                                                     rr'--
                                                                                               rnT—

                                                                                      \°       i5 ~'':
                                                                                      CO       /";
                                                                       20 * r   r* r- r*   /s   . . .   _




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

In the Matter of the Dependency of                No. 71241-1-1
                                                  consolidated with
G.G., JR., b.d. 11/07/04,                         No. 71242-0-1 and
J.D.G., b.d. 09/30/03,                            No. 71243-8-1
S.M.M.,b.d. 11/23/99,

                     Minor Children.



DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

                     Respondent,

          v.



ITZEL JIMINEZ SALAZAR,                            PUBLISHED OPINION


                     Appellant.                   FILED: February 9, 2015


       Verellen, A.C.J. — Itzel Jiminez Salazar appeals from an order terminating

her parental rights to her three children. She contends that she was deprived of her

right to counsel of choice when the trial court denied her motion for a continuance to

hire private counsel. But because she had not selected substitute counsel and failed

to show that she had the ability to obtain substitute counsel, the trial court did not

violate her right to counsel of choice or abuse its discretion. She further challenges

the court's finding that she was unfit to parent. Because the record supports the

court's finding of unfitness, her challenge to the termination order is without basis.

Accordingly, we affirm.
No. 71241-1-1/2



                                        FACTS

       Itzel Jiminez Salazar gave birth to S.M. on November 23, 1999, when she was

15 years old. S.M.'s father was not involved with S.M. and ultimately relinquished his

parental rights. Salazar lived with her mother during this time but eventually moved

out of her mother's home with S.M. when she was 17 years old. According to

Salazar, her mother physically and verbally abused her while she was a minor living

in her home.


       Salazar had two more children with Gerardo Guizar, whom she married in

2003. J.G. was born on September 30, 2003, and G.G. was born on November 7,

2004. During the marriage, there were several incidents of domestic violence

requiring police intervention and, in 2005, Salazar left Guizar and obtained a

protection order against him. That same year, Salazar sent S.M. to live with her

mother because she was unable to care for all three children.

       By 2009 or 2010, Salazar, J.G., and G.G. had moved in with Salazar's mother

and S.M. Sometime in 2010, Salazar moved out of her mother's home, taking J.G.

and G.G. with her. She left S.M. to remain living in the home with her mother and her

younger brother. In March 2011, J.G. and G.G. disclosed to Salazar that they had

been sexually assaulted by Salazar's brother while they were living with her mother.

Salazar reported this to the police and Child Protective Services (CPS), but she did

not remove S.M. from her mother's home. Salazar's brother continued to live in the

home and pleaded guilty to assaulting J.G. and G.G. in 2012.

       In June 2011, Salazar left J.G. and G.G. in her roommate's care while she was

at work as a cocktail waitress. After her shift, she drank until she blacked out and did
No. 71241-1-1/3



not return home that night. The next morning, her roommate called the police and

CPS when she was unable to locate Salazar. All three children were taken into

protective custody and placed in foster care.

       On June 10, 2011, the State filed a dependency petition. On July 27, 2011,

the court found the children dependent as to Salazar and maintained the children's

placement in out-of-home care.1 The court also ordered remedial services and

required Salazar to participate in a drug/alcohol evaluation, random urinalysis testing

(UA) and parenting classes. The order allowed Salazar to have a minimum of two

hours supervised visitation once per week.

       From October 2011 to December 2012, Department of Social and Health

Services (Department) social worker Matthew Shaw worked with Salazar to comply

with the court-ordered service requirements. He referred her to service providers and

scheduled weekly meetings with her, but she often failed to show for the meetings

and never provided proof that she participated in any of the services. Salazar had

not participated in intensive outpatient alcohol treatment as recommended by the

court-ordered evaluation. In fact, she told Shaw that she was working as a cocktail

waitress in a bar and asked that he not share that information with her treatment

provider. And while she claimed to be involved in parenting classes, she never

provided Shaw any proof of her participation.

      Salazar's visitation with her children during this time was inconsistent. She

had weekly two-hour visits scheduled with them but struggled with logistics and was



      1 The court also found the children dependent as to the father on
September 22, 2011.
No. 71241-1-1/4



often late or failed to appear for visits, causing stress for the children and escalation

of their behavior. Shaw spent a considerable amount of time addressing visitation

logistics with little change in Salazar's behavior.

       Shaw gave Salazar referrals for court-ordered mental health counseling, but

Salazar did not participate in counseling. She would either deny needing counseling

or falsely report that she was participating in counseling or trying to. She never

provided documentation of her participation, nor were any of the providers able to

confirm that she had kept appointments or completed intakes.

       All three children received services. J.G. required more extensive services

due to her extreme behaviors.2 When Shaw attempted to explain to Salazar the

severity of the children's behaviors, she was overwhelmed. According to Shaw,

Salazar needed to play an active engaged role in trying to stabilize the children's

behaviors in their placements; but instead, she simply reacted and lacked an

awareness of the severity of their trauma. She constantly struggled to set limits with

them and escalated their behavior by failing to be on time or to show up for the visits.

J.G. was particularly traumatized by Salazar's missed visits. She was assaultive at

times and often took weeks to recover after a missed visit. Because Salazar's

transient involvement was too disruptive to the treatment team working to stabilize

the children, she was never introduced into the children's therapy. In July 2012, the

court ordered that visitation be reduced to a single two-hour visit per month, finding it

necessary to protect the children's health, safety and welfare.



       2 J.G. required hospitalized inpatient psychiatric care and was later placed in a
behavior rehabilitation services center after an unsuccessful placement with S.M.
No. 71241-1-1/5



       In September 2012, Shaw recommended that Salazar participate in a second

alcohol evaluation. He did so based on concerns about her failure to participate in

alcohol treatment and involvement in a domestic violence incident where she was


found to be intoxicated in March 2012. Salazar completed the evaluation, but no

treatment recommendations were made, leading Shaw to believe that she may not

have been honest in this evaluation.


       On December 12, 2012, the court held a permanency planning hearing. The

court found that Salazar had only partially complied with court-ordered services as

she had completed a drug/alcohol evaluation but had not participated in parenting

classes or mental health counseling. The court also found that Salazar had not

visited the children on a consistent basis, noting that she only recently resumed visits

after not visiting for over five months. In addition to the previously-ordered services,

the court ordered a psychological evaluation with a parenting component. The court

further ordered that the Department make a referral for termination of her parental

rights by January 15, 2013.

       In January 2013, social worker Sanna Olsen was assigned to Salazar's case.

Salazar declined to participate in weekly meetings with Olsen and only met with her

every other month and by telephone and e-mail. Olsen referred Salazar to

Dr. Michael O'Leary for the psychological evaluation.

       In March and April of 2013, O'Leary conducted an evaluation which included

psychological testing, a clinical interview, and a parent-child observation. O'Leary

concluded that Salazar had impaired functioning in areas involving her ability to

organize a household, to timely meet her obligations, and to remember instructions.
No. 71241-1-1/6



He determined that she had limited cognitive functioning which may have been

caused by complex trauma she experienced growing up in an abusive environment.

He concluded that she would need to participate in very intensive psychiatric and

mental health care for two to four years to overcome the trauma. He identified her

parenting deficiencies to include cognitive problems, a pervasive distrust and

suspicion of others' motives, and willingness to accept abusive behavior from others.

He concluded that Salazar was "marginally capable of providing an adequately

stable, structured, safe, and consistently nurturing environment for her children at this

time."3

          O'Leary recommended that she participate in trauma-based cognitive

behavioral therapy (CBT). O'Leary also concluded that she would benefit from

parenting instruction, such as a parenting coach. Olsen referred Salazar to

community agencies offering CBT, but she did not participate in any such therapy

despite her representations to Olsen that she was doing so. Olsen did not offer the

parent coaching service recommended by O'Leary since Salazar was not regularly

attending her visits, the setting in which parent coaching would need to occur. During

Olsen's time on the case, Salazar continued to struggle with keeping her visit

appointments and in five months had only two visits with J.G., one of which was part

of the psychological evaluation. During the visits, she was unable to set limits and

effectively manage the children's behavior.

          On April 4, 2013, the State filed a petition for termination of the parent-child

relationship. On May 9, 2013, the court held a review hearing and found Salazar in


          3 Ex. 22 at 16.
No. 71241-1-1/7



partial compliance as she had completed the psychological evaluation, but also found

that she had not confirmed her participation in counseling or parenting classes, had

not attended meetings relating to her children or visited her children since

December 14, 2012, and had not met with Olsen since February 2013. The court

then ordered that she attend all meetings regarding her children, follow

recommendations of the psychological evaluation, including obtaining a sponsor,

attending 12-step meetings, and participating in CBT counseling, domestic violence

support groups, and the children's therapy as recommended. Salazar never provided

Olsen with any evidence that she participated in these services.

       In mid-May 2013, Salazar's case was transferred to social worker Morgan

White. In June 2013, White met with Salazar, and they discussed services. Salazar

reported that she had attended counseling and completed her parenting class, but

she did not present any documentation of this participation. White also asked her to

complete a UA that day, but she left without doing so. At a second meeting, White

discussed Dr. O'Leary's recommendations, and Salazar reported that she was

working with her attorney and that they had located a CBT therapist. She also

agreed to participate in a UA but then did not do so. White also provided Salazar

with a complete list of required services and available community resources that

provide those services.

      On September 18, 2013, the court held a permanency planning hearing. The

court found Salazar in partial compliance of the ordered services as she had

completed a parenting class on May 16, 2013. But the court also found that she had

not participated in individual counseling, domestic violence support groups, trauma-
No. 71241-1-1/8



based CBT sessions, family counseling, 12-step groups, had not obtained a sponsor,

and had not attended all meetings regarding her children.

       The termination trial was set for October 28, 2013. On October 22, 2013, the

parties appeared for a preliminary hearing, and counsel for the Department noted

that "the mother may have an issue with appointment of counsel."4 The court

declined to consider the matter because it had not been noted on the calendar.

       On October 28, 2013, the parties appeared for trial and the court asked

Salazar's attorney, Susan Harness, about a possible motion to continue. Harness

reported that Salazar had contacted her the day before the preliminary hearing and

had asked her to make a motion to withdraw. Harness stated that she had spoken to

Salazar since then and that it was her desire to have Harness withdraw and request

a continuance for Salazar to hire new counsel. The court asked Salazar for her input.

Salazar stated that she felt that she hadn't been well represented and that she

wanted her therapist to testify, but that the therapist was not available for two weeks.

       The court also asked Salazar if she had found a replacement lawyer. Salazar

said she met with one lawyer that she did not want to hire and that she was planning to

meet with two more that week. She could not provide the names of the lawyers. The

court then asked her to elaborate about the therapist that might be a potential witness.

She provided only her first name and said she worked in Lynnwood or Edmonds.

       Harness told the court that she wished to continue representing Salazar and

that she was prepared to go forward. She also said that this was the first time she




        Report of Proceedings (RP) (Oct. 22, 2013) at 2.



                                            8
No. 71241-1-1/9



had been given the contact information for the therapist but that she would call her as

a witness if she could contact her. The Department and the attorneys for S.M. and

the guardian ad litem (GAL) all objected to the continuance, citing undue delay and

the children's need for permanency. The Department also stated that this was the

first it had been made aware of the possible therapist witness.

      The court denied the motion, noting that the dependency had been pending

for more than 27 months, that the termination had also been pending for some time,

and that everyone was aware of this trial date. Indeed, Salazar had known of the trial

date for four months. The court also concluded that there was no basis for allowing

Salazar to hire new counsel and remove Harness from the case:

      The stated reason essentially is that mother is not sure and comfortable
      about the representation provided by Ms. Harness. That really does not
      rise to the level to have appointed counsel relieved.

              As I think has been attested to by others, Ms. Harness is an
      experienced and competent attorney in these kind of matters. There
      really is nothing that has been provided in the record here which would
      indicate to the contrary as to this particular case.

              The mother has indicated a desire to hire alternative counsel, but
      this comes on essentially the morning of trial, and there are no specific
      names offered or even an indication that she has met with these
      individuals. So that is rather speculative in nature.

              Perhaps the biggest concern is the prospect of this potential
      witness for the mother, the therapist. Although, one notes that
      according to the mother this therapist has only been involved in the
      case for the last couple months it sounds like. So, there may be
      limitations in terms of her testimony. But the Court would be inclined
      nonetheless to make accommodations to try to ensure ... at least the
      possibility of her being heard from. Accordingly, the Court would be
      inclined, for example, to allow telephonic testimony regarding that
      therapist. And if that proves simply impossible, to at least consider
      possible alternatives. Although, again, this is a case that has been
      pending trial for some time. Again, this is a rather new development it
No. 71241-1-1/10



       sounds like in terms of [the] possibility of her being a potential witness.
       And, as noted, her testimony I gather would be rather limited in scope.15!

The court then took a short recess to allow Harness time to confer with Salazar.

When court reconvened, Harness indicated that she was ready to proceed.

       After hearing testimony from Salazar, the three social workers, Dr. O'Leary,

and the GAL, the court granted the termination petition. The court found that Salazar

had parental deficiencies of drug and alcohol abuse, cognitive limitations that impact

her ability to safely parent and make choices in the children's best interests, an

inability to provide stability and consistency, a lack of insight of her children's needs

and her own parenting deficits, and impaired judgment in her relationship choices

which places her children at risk of domestic violence. The court further found that all

services capable of correcting the parental deficiencies were offered and that Salazar

chose not to participate in them. The court concluded that there was little likelihood

conditions would be remedied such that the children could be returned her in the

near future, that Salazar was unfit to parent currently and in the foreseeable future,

and that she was incapable of providing the children a permanent and stable home.

Salazar appeals.

                                       ANALYSIS

       Salazar contends that by denying her continuance to retain private counsel,

the trial court violated her constitutional right to counsel of choice. The Department

responds that the right to counsel of choice applies only to criminal prosecutions, not

civil proceedings to terminate parental rights, and therefore, Salazar's claim of a


      5 RP (Oct. 28, 2013) at 18-19 (emphasis added).


                                            10
No. 71241-1-1/11



constitutional deprivation is without basis. The Department then argues that the trial

court's denial of the continuance was a proper exercise of discretion given the

untimeliness of the request. We agree that the trial court properly exercised its

discretion by denying the continuance.

       Salazar acknowledges that Washington law has not specifically addressed

whether a parent in a proceeding brought by the State to terminate parental rights

has a right to retain counsel of choice. Instead, she relies on case law interpreting

the constitutional right to counsel of choice in criminal prosecutions guaranteed by

the Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution.

       In United States v. Gonzalez-Lopez.6 the Supreme Court recognized that an

element of the Sixth Amendment right to counsel is the right of a defendant who does

not require appointed counsel to choose who to represent him. The Court concluded

that "the right at stake here is the right to counsel of choice, not the right to a fair

trial,"7 and "that the accused be defended by the counsel he believes to be best."8

Thus, when assessing a request for substitute counsel, an inquiry into the

effectiveness of the counsel sought to be replaced or the prejudice to the defendant

by that counsel's representation was unwarranted and improper.9 Rather, the court

held that deprivation of this right occurs "when the defendant is erroneously



       6 548 U.S. 140, 144, 126 S. Ct. 2557, 165 LEd.2d 409 (2006).
       7 Id at 146.
       8 ]d at 140.
       9 Id. at 148.



                                             11
No. 71241-1-1/12



prevented from being represented by the lawyer he wants, regardless of the quality of

the representation he received."10

       In State v. Hampton,11 this court recently applied Gonzalez-Lopez to find such

a deprivation in a criminal case. In doing so, the court rejected the analysis used in

State v. Price12 and State v. Roth13 to evaluate a trial court's decision to deny a

request for a continuance to obtain substitute counsel. Because the Roth-Price

analysis required an inquiry into the legitimacy of the defendant's dissatisfaction with

counsel and the potential for identifiable prejudice to the defendant, it did not comply

with Gonzalez-Lopez and was therefore improper.14

       In Hampton, the trial court denied the defendant's request for a continuance to

allow his newly retained private counsel to have time to prepare his case.15 In doing

so, the trial court considered the defendant's dissatisfaction with his appointed

counsel, counsel's effectiveness, and the potential prejudice to the defendant.16 This

court reversed, holding that under Gonzalez-Lopez, the trial court improperly

considered those factors to deny the continuance, requiring the defendant to proceed

with appointed counsel in violation of his right to counsel of choice.17



        °ld
        1     Wn. App.      , 332 P.3d 1020 (2014).
        2 126 Wn. App. 617, 109 P.3d 27 (2005).
        3 75 Wn. App. 808, 881 P.2d 268 (1994).
        4 Hampton. 332 P.3d at 1029.
        5 Id at 1025.
        6 ]d at 1030.
        7 Id. at 1030-31.



                                           12
No. 71241-1-1/13



       Salazar similarly argues that she was deprived of her right to counsel of choice

when the trial court denied her a continuance to obtain private counsel after

considering the legitimacy of her dissatisfaction with and the competence of

appointed counsel. The Department contends that because the Sixth Amendment

right to counsel of choice applies only to criminal prosecutions, not proceedings to

terminate parental rights, the Gonzalez-Lopez analysis does not apply here.

       In Washington, RCW 13.34.090(2) provides the right to counsel in termination

proceedings, a right derived from the due process guarantees of article I, section 3 of

the Washington Constitution and the Fourteenth Amendment.18 While the

Department is correct that a parent's right to counsel in termination proceedings does

not derive from the Sixth Amendment right to counsel applicable in criminal

prosecutions, this is a distinction of no consequence. Whether the right to counsel in

termination proceedings is derived from the Sixth Amendment or due process

guarantees, the parent's right to hire the attorney of their choice is inherent in the

right to counsel. As the Supreme Court has recognized, the right to assistance of

counsel necessarily includes this right to counsel of choice: "It is hardly necessary to



       18 In re Luscier's Welfare. 84 Wn.2d 135, 138, 524 P.2d 906 (1974); In the
Matter of Welfare of J.M..130Wn. App. 912. 921. 125 P.3d 245 (2005). The
Department noted at oral argument that in Lassiter v. Dep't of Soc. Servs., 452 U.S.
18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), the United States Supreme Court
concluded that it is up to the states to determine the due process standards for
counsel in termination cases. Our courts have recognized that "'the full panoply of
due process safeguards applies to deprivation hearings'" and that the right to counsel
in parental termination proceedings derives from constitutional due process
provisions. JLM., 130 Wn. App. at 921 (quoting Luscier. 84 Wn.2d at 137). Lassiter
does not diminish the vitality of the due process based right to counsel in termination
proceedings.



                                            13
No. 71241-1-1/14



say that the right of counsel being conceded, a defendant should be afforded a fair

opportunity to secure counsel of his own choice."19 The right of counsel in

termination proceedings established by statute and derived from constitutional due

process provisions necessarily includes the right to counsel of choice.

       But as recognized in Hampton, a court also retains the right to control its

calendar, and the ability of the parent to secure substitute counsel is critical to the

exercise of the right to choose retained or volunteer counsel.20 Here, there was no

motion to substitute counsel; Salazar had not reached any agreement with any

attorney, retained or volunteer, to represent her in the termination trial. Salazar filed

only a motion for a continuance to delay the trial and allow her to interview two

attorneys she had not yet met.

       The trial court asked careful questions and determined: Salazar wanted to

retain substitute counsel but had not yet done so; she interviewed one attorney but

did not want that attorney to represent her; she planned to interview two other

attorneys within the next week but could not give the trial court the names of those

attorneys as she did not have their names with her; the dependency had been

pending for 27 months; the termination trial had been scheduled. Salazar knew of

the trial date for four months. The Department, the GAL, and counsel for S.M. all

opposed a continuance on the ground that the children should not be forced to wait

longer for the court to determine whether a termination should be granted.




       19 Powell v. State of Ala.. 287 U.S. 45, 53, 53 S. Ct. 55, 77 L Ed. 158 (1932).
       20 Hampton. 332 P.3d at 1028.



                                            14
No. 71241-1-1/15



       Consistent with the observations in Hampton, the trial court announced that

because the motion came at the start of the scheduled trial,21 "there are no specific

names offered or even an indication that she has met with these individuals," so the

request "is rather speculative in nature."22

       If Salazar had had new counsel present with her at the time of her motion or

could otherwise document that she had obtained new counsel to represent her, then

she could have filed a motion to substitute the new counsel rather than merely ask for a

continuance to try to find someone other than her appointed counsel to represent her.

In such a setting, the trial court could then consider the impact of any delay upon the

interests of the children. Because Salazar had not selected new counsel and failed to

show she had the ability to obtain substitute counsel, the trial court did not frustrate

Salazar's right to counsel of choice or abuse its discretion by denying a continuance.

       Salazar also contends that the record does not support the trial court's finding

of unfitness based on her parental deficiencies of cognitive impairment, poor

relationship choices that put her children at risk of domestic violence, drug and

alcohol abuse, and a lack of insight about her children's needs. We disagree.

       A court may order termination of parental rights when shown by clear, cogent

and convincing evidence that (1) the child has been found dependent, (2) the child

has been removed from the parent for at least six months as a result of the

dependency, (3) all necessary services, reasonably available, capable of correcting



       21 Even ifwe consider the motion "raised" at the preliminary hearing one week
before trial, that was still on the eve of trial.
       22
            (RP)(Oct. 23, 2013) at 19.



                                               15
No. 71241-1-1/16



the parental deficiencies within the foreseeable future have been expressly and

understandably offered or provided, (4) there is little likelihood that conditions will be

remedied so that the child can be returned to the parent in the near future, and

(5) that continuation of the parent and child relationship clearly diminishes the child's

prospects for early integration into a stable and permanent home.23 Although not an

explicit statutory element, the court must also find by clear, cogent and convincing

evidence that a parent is currently unfit before terminating parental rights.24 We give

the trial court's decision great deference and will uphold its findings of fact if they are

supported by substantial evidence.25

       Salazar first contends that the evidence did not establish that her cognitive

limitations directly impacted her ability to parent, citing case law holding that proof of

cognitive impairments alone is insufficient to support a finding of fitness.26 She points

to evidence that she was capable of protecting her children by ending a violent

relationship with her husband and by reporting her brother's sexual abuse of J.G. and

G.G.

       But the following unchallenged findings of fact, now verities on appeal, support

the court's findings that Salazar's cognitive impairments impacted her ability to parent

and that her refusal to actively participate in services to remediate this deficiency

rendered her unfit to parent currently or in the foreseeable future:



       23 RCW 13.34.180(1).
       24 In re Dependency of K.R.. 128 Wn.2d 129, 142, 904 P.2d 1132(1995).
       25 In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113 (1999).
       26 See In re Welfare of A.B.. 181 Wn. App. 45, 65, 323 P.3d 1062(2014).



                                             16
No. 71241-1-1/17



       2.47   In his psychological evaluation, Dr. O'Leary recommended that
              the mother participate in trauma focused cognitive behavior
              therapy (CBT). On June 6, 2013, the current social worker
              Morgan White met with the mother and specifically discussed the
              recommendation for CBT. Ms. White identified agencies that
              offer CBT, although she did not identify specific counselors.

       2.48   The mother told Ms. White that her attorney arranged for the
              mother to attend CBT with a qualified therapist. During meetings
              in July and September, the mother continued to represent to the
              social worker that she was in counseling; she was not.[27]



       2.51   The mother completed a psychological evaluation with Dr.
              Michael O'Leary in April 2013. Dr. O'Leary the mother has
              significant developmental and cognitive problems that are a
              barrier to the acquisition of adaptive and appropriate parenting
              behaviors. He concluded it was highly unlikely the mother would
              remediate her parenting deficiencies without full and vigorous
              participation in services.

       2.52   In his evaluation, Dr. O'Leary recommended reunification
              contingent on adequate demonstration of the mother's
              participation in and benefit from recommended services. At trial
              Dr. O'Leary recommended termination of parental rights based
              on the mother's failure to actively participate in services.[28]

       Salazar next challenges the court's finding that her poor relationship choices

render her unfit to parent. The trial court found:

       2.24   The mother's parental deficiencies included impaired judgment in
              her relationship choices, which is likely a result of her cognitive
              impairments. The mother's relationship choices place her and
              her children at risk of domestic violence.'291

The record supports this finding. Although domestic violence victims face great

challenges, a parent must exercise good judgment to avoid genuine risk of harm to


      27 Clerk's Papers at 12.
      28 Clerk's Papers at 13.
      29 Clerk's Papers at 11.


                                            17
No. 71241-1-1/18



her children. Here, the focus of the trial court's finding was not based on Salazar's

status as a domestic violence victim; it was her failure to make appropriate choices

and participate in recommended services to address parental deficiencies related to

domestic violence trauma that placed her children at risk of harm.

       Salazar also challenges the court's finding that drug and alcohol issues were a

deficiency that contributed to her parental unfitness. This finding is supported by the

record. It is undisputed that her children ended up in protective custody because she

went on a drinking binge, blacked out, and left the children with a roommate.

Salazar's drug and alcohol evaluator recommended intensive treatment. Salazar

admitted to Shaw that she took a job at a bar as a cocktail waitress despite this

treatment recommendation. While Salazar points to the fact that the second alcohol

evaluation made no treatment recommendations, Shaw testified that he had

concerns about her lack of honesty. The trial court was entitled to find Shaw credible

on this point.

       Finally, Salazar challenges the court's finding that she lacked insight about her

children's needs to the extent that she was unfit to parent. This finding is supported

by the record. Shaw testified that "there was a lack on the mother's part of

awareness about the severity of the children's trauma," and while all the

professionals working to stabilize the children needed her to "play an active engaged

role," she was instead "constantly reacting," was "often late failing or missed

visitations which escalated the children in their respective . . . placements."30 Indeed,



       30 Id. at 93.



                                           18
No. 71241-1-1/19



as noted above, the court eventually reduced her visits due to the harmful impact on

the children. Still, she did not change her behavior and further limited her

engagement with the children, failing to visit them at all between May and November

of 2012.


       Even if any one of these findings alone did not support a finding of unfitness,

the remaining unchallenged findings of fact and the record as a whole support

parental unfitness and the order of termination. The trial court found credible the

evidence presented at trial that Salazar had parental deficiencies rendering her

incapable of providing a stable, safe home for the children, that services were offered

to help remedy these deficiencies, and that she consistently failed to participate in

the required services.

       We affirm.




WE CONCUR:




   I A <Mz v             4                                   .sfAjfrtjf.




                                           19
