In re the Welfare of: D. B. ( 2016 )

FILED
March 1,2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Welfare of )
) No. 32975-5-III
D.B., T.C., and K.F. ) (consol. with
) No. 32976-3-III,
) No. 32977-1-III)
)
)
) UNPUBLISHED OPINION
SIDDOWAY, C.J. - The trial court terminated B.B.'s parental rights as to her three
children. B.B. appeals. She argues the trial court erred when it found (1) that the
Department of Social and Health Services (Department) provided her with all necessary
services under RCW 13.34.180( 1)(d) because the Department did not provide her with
integrated treatment for her co-occurring mental health and substance abuse issues, and
(2) that it was in her children's best interests to terminate her parental rights. Because the
Department offered B.B. several co-occurring treatment options, and because it is in the
children's best interests to terminate B.B.'s parental rights, we affirm.
FACTS
B.B. is the mother of three children: K.F., T.C., and D.B. The Department became
involved with the family in August 2011. Between August 2011 and March 2012, "the
Department received eight separate referrals[. T]wo alleged physical abuse, but the
majority were for neglect, such as the children not receiving enough to eat, the
No. 32975-5-III (consol. wi No. 32976-3-III, No. 32977-I-III)
In re the Welfare ofD.E.
cleanliness of the home, concerns about [RB.'s] behavior around the kids, and substance
abuse." Clerk's Papers (CP) at 358-59. RB. confessed on one occasion that she had
"smoked spice, methamphetamines and marijuana" at a party with her children. CP at
359. B.R participated in voluntary services, including family preservation services,
urinalysis (VA) screening for drugs, and a screening at Spokane Mental Health. When
the voluntary services agreement expired in May 2012, the Department closed its case.
In October 2012, the Department received another referral for unsanitary
conditions in the home and concerns about B.B.'s behavior with D.B. When social
worker Anna Schultz viewed the home she found piles of dirty dishes in the sink with
flies circling around them, and debris and food on the floor. "The basement had been
flooded from [D.B.] plugging the toilet." CP at 360. "[B.R] was extremely agitated and
yelling profanities. She insisted her house was clean and that she had been cleaning." Id.
Ms. Schultz was worried about B.B.'s mental health, but RB. refused to attend
counseling. Ms. Schultz filed a dependency petition on November 21,2012.
A shelter care order was entered on November 27, 2012, under which the children
were allowed to remain in the home because B.B. agreed to intensive family preservation
services, followed by family preservation services, VA and breath alcohol testing, a
chemical dependency assessment ifthere was ever a positive VA, mental health treatment
with Carla Paullin, and to take D.B. to counseling.
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That same day, intensive family preservation services began with therapist
Shaylyn Gunnels. Ms. Gunnels tried to build rapport with B.B., but B.B. was hostile and
verbally combative, did not want Ms. Gunnels to be the therapist, and was unwilling to
explore appropriate behavior management techniques. B.B. made no progress in the four
sessions with Ms. Gunnels, and on December 3,2012, Ms. Gunnels notified B.B. she
would be unable to continue providing services to her.
Ms. Schultz obtained an order to remove the children on December 5, 2012, and
another shelter care hearing was held. At that hearing, the children were ordered to
remain out ofthe home. "[B.B.] again agreed to [intensive family preservation services], .
VA testing, a chemical dependency assessment if a VA was dirty or she failed to appear,
mental health counseling with [Carla Paullin], and counseling for [D.B.]." CP at 365.
The children were found dependent on January 24, 2013. The Department filed a petition
to terminate B.B. 's parental rights more than a year and a half after the children's
removal from the home, on October 1, 2013. Between the beginning of the dependency
in January 2013 until the trial court ultimately terminated B.B.. 's parental rights, B.B.
attended the provided services only sporadically, often refused services, and made little
progress on her mental health and substance abuse issues.
More than another year had passed when, on November 17, 2014, the trial court I
found that all six requirements ofRCW 13.34.180(1) were satisfied by clear, cogent, and
I
I
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convincing evidence, and that terminating B.B.'s parental rights was in the best interests
of the children. B.B. appeals.
ANALYSIS
"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." Santosky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because of this
fundamental liberty interest, the State may terminate parental rights'" only for the most
powerful [of] reasons.'" In re SJ, 162 Wn. App. 873, 880, 256 P.3d 470 (2011)
(alteration in original) (quoting In re Welfare ofAJR., 78 Wn. App~ 222, 229, 896 P.2d
1298 (1995)).
Washington uses a two-step process to determine whether to terminate parental
rights. In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d 1104 (2010). "The first step
focuses on the adequacy of the parents and must be proved by clear, cogent, and
convincing evidence." Id. (footnote omitted). The State must establish the six statutory
elements listed in RCW 13.34.180(1) and make a finding that the parent is presently
unfit. RCW 13.34.190(1)(a)(i). Here, only one of the six elements under RCW
13.34.180(1) is challenged on appeal:
(d) That the services ordered under RCW 13 .34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
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deficiencies within the foreseeable future have been expressly and
understandably offered or provided.
RCW 13 .34.180( 1)(d). "Clear, cogent and convincing evidence exists when the evidence
shows the ultimate fact at issue to be highly probable." In re Dependency ofKSC., 137
Wn.2d 918,925,976 P.2d 113 (1999).
"The second step focuses on the child's best interests and need be proved by only
a preponderance of the evidence." A.B., 168 Wn.2d at 911 (footnote omitted); RCW
13J4.190(1)(b). The court may not reach the second step unless the first step has been
satisfied. Id. at 911.
STANDARD OF REVIEW
This court reviews an order terminating parental rights de novo. In re Dependency
ofKNJ., 171 Wn.2d 568,574,257 PJd 522 (2011). "The court's factual findings must
be upheld if supported by substantial evidence from which a rational trier of fact could
find the necessary facts by clear, cogent, and convincing evidence." KSC., 137 Wn.2d
at 925. Evidence is substantial if it is sufficient to persuade a fair-minded person of the
truth of the fact at issue. SJ., 162 Wn. App. at 88l. "The trial judge has the advantage
of having the witnesses before him or her, and deference to the findings is of particular
importance in deprivation proceedings." KSC., 137 Wn.2d at 925. "Unchallenged
findings of fact are verities on appeal." In re Welfare ofA. W, 182 Wn.2d 689, 711, 344
PJd 1186(2015).
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In re the Welfare ofD.B.
ASSIGNMENTS OF ERROR
The issues on appeal are whether the State provided B.B. with all necessary
services under RCW 13.34.180(1)(d), and whether it is in her children's best interests to
terminate her parental rights.
1. The State Provided All Necessary Services
B.B. argues that the State did not provide her with all necessary services because it
failed to provide her with integrated treatment for her co-occurring mental health and
substance abuse issues.
To terminate parental rights, the State must prove that it offered all necessary
services capable of correcting the specific parental deficiencies within the foreseeable
future. RCW 13.34.l80(1)(d). "The services offered must be tailored to each
individual's needs," In re Dependency ofT.R., 108 Wn. App. 149, 161,29 P.3d 1275(2001), and they must be offered in a timely manner, SJ., 162 Wn. App. at 881-83.
It is well settled that the statutory requirement to offer corrective services does not
contemplate an entirely one-way process, and "a parent's unwillingness or inability to
make use of the services provided excuses the State from offering extra services that
might have been helpful." In re Dependency ofRamquist, 52 Wn. App. 854,861, 765
P.2d 30 (1988).
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No. 32975-5-III (consol. wi No. 32976-3-III, No. 32977-1-III)
In re the Welfare ofD.B.
Even where the Department inexplicably fails to offer services to a parent,
termination will still be deemed appropriate if the services would not have remedied the
parent's deficiencies in the foreseeable future. In re Welfare ofMR.H, 145 Wn. App.
10,25, 188 P.3d 510 (2008). "Where the record establishes that the offer of services
would be futile, the trial court can make a finding that the Department has offered all
reasonable services." Id. (citing In re Welfare ofFerguson, 32 Wn. App. 865, 869-70,
650 P.2d 1118 (1982), rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983».
While B.B. contends that the State did not offer her co-occurring treatment, the
trial court's unchallenged findings of fact show otherwise. The record demonstrates that
Ms. Paullin, a therapist who was selected for her expertise in co-occurring disorders,
attempted to work with B.B. on her mental health disorder through cognitive behavioral
therapy, and also attempted to get RR to attend treatment for chemical dependency.
B.B. resisted both.
[B.R] was unwilling to acknowledge, or even pretend, that she had to
change her way of thinking, to engage in counseling or other services.
I
[B.B.'s] view was the Department wanted her kids[,] that it wasn't about
parenting, that she had cleaned her dirty house, and there were no other
reasons for concern.
CP at 368.
I
!
A chemical dependency counselor tried three separate times to help RB. access
health insurance so she could obtain co-occurring treatment, but B.B. missed all three
I
appointments. The counselor testified that, while co-occurring treatment is limited in
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In re the Welfare ofD.B.
Washington, had B.B. secured medical insurance, she would have had access to the
treatment.
Social worker Lori Blake tried to convince B.B. to go to inpatient treatment. In
fact, three beds at inpatient programs that apparently could have addressed B.B.'s co­
occurring condition opened, but B.B. refused to participate in those programs at the times
the beds were available. When B.B. finally agreed to go to inpatient treatment, the only
open bed was at Pioneer Center East (PCE), a chemical dependency treatment center that
does not provide co-occurring treatment.
Even after treatment at PCE, B.B. received numerous referrals. She was again
referred to Ms. Paullin for counseling. She was also referred to Youth, Family, Adult
Connections (YF A) for their "co-occurring disorder intensive outpatient group," and to
Frontier Behavioral Health for a mental health referral and self-help groups. CP at 374,
383. She was an hour late for her intake appointment at YF A, and only attended two
other appointments (and at one of them she left early). She did not attend the remaining
nine appointments. B.B. also failed to re-engage in counseling with Ms. Paullin. The
record contains clear, cogent, and convincing evidence that B.B. was offered co­
occurring treatment options on multiple occasions.
Even if the Department had failed to offer co-occurring treatment options, B.B.'s
unwillingness to engage with services or recognize her mental health and substance abuse
issues make it clear such treatment would have been futile. In addition to B.B.'s failure
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In re the Welfare ofD.B.
to engage in the co-occurring services just mentioned, B.B. failed to actively engage in
any of the other services offered. During the approximately nine months B.B. was
scheduled for UA testing, she missed 25 appointments. While she did attend six UA
tests, two were positive for drugs, and one was invalid due to low creatinine. And though
B.B. more consistently attended her counseling sessions with Ms. Paullin (attending 13 of
21 sessions), she never actively engaged with counseling and refused to accept she had a
problem.
Similarly, when B.B. was referred to a counselor at B.B.'s attorney's request, B.B.
missed her two and only appointments. While B.B. did attend seven of eight
appointments with clinical psychologist Dr. Sean Smitham, as soon as he discussed her
schizophrenia with her, she discontinued treatment. The overwhelming consensus of her
various health care providers and social workers was that she was unwilling to accept she
had a problem, and refused to actively engage in services to correct her parental
deficiencies. Thus, the Department was not required to provide additional services.
B.B.'s arguments based on In re Dependency ofH. w., 92 Wn. App. 420, 961 P.2d
963, amended on recons. by sub nom. In re Dependency ofH W. & V. w., 969 P .2d 1082
(1998), and SJ, 162 Wn. App. 873, are not persuasive. In H. W. the father was a
convicted sex offender and the mother was developmentally disabled. 92 Wn. App. at
421. The Department assumed the mother could not protect the children from sexual
abuse because she was too attached to the father to understand his sexual deviancy. Id at
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423-24. Consequently, the Department never referred the mother to the Division of
Developmental Disabilities for potentially applicable services. Id. at 426. However, the
evidence showed that the mother was able to learn new material, adjust her behavior, and
was eager for more services. Id. at 428. The court ultimately found that all necessary
services were not offered. Id. at 429-30.
In s.J., the mother had a bipolar disorder and substance abuse issues. 162 Wn.
App. at 876. Despite knowing of her mental health issues, the Department did not refer
her to mental health services until eight months after S.J. was removed from the home,
during which time the mother unsuccessfully attempted to complete inpatient treatment
for substance abuse three times. Id. at 876-77.
However, soon after receiving mental health services-in which she actively
participated and improved her ability to identify symptoms of a bipolar episode-the
mother successfully completed inpatient treatment. Id. at 882. Thereafter, the mother
remained sober, implemented the suggested parenting skills, and established a safe, clean,
drug-free home. Id. at 877, 883. The court found the mother's inability to complete
inpatient treatment was linked to her bipolar disorder, and that if the Department had
offered her co-occurring treatment sooner, she would have been able to recover in time to
properly parent her child. The court found the Department had not offered all the
necessary services. Id. at 882, 884.
10
I
I
I
j
I No. 32975-5-II1 (conso!. wi No. 32976-3-III, No. 32977-I-III)
i
H
In re the Welfare ofD.E.
I This case is distinguishable from H. W for two reasons. First, while the mother in .
I
~
H W was eager for services and tried to implement techniques she learned, here B.B.
I! frequently refused or failed to attend services, and would not acknowledge she had a
problem the services could help remedy. Second, while the mother in H. W was never
I offered disability services, B.B. was offered co-occurring treatment both before and after
I! entering inpatient treatment.
I
SJ is likewise distinguishable from this case for two reasons. First, while the
mother in SJ received no mental health counseling until eight months after her child was
removed, here B.B. received multiple referrals to mental health, substance abuse, and co­
occurring treatment programs. She received mental health counseling from Ms. Paullin
the same month her children were removed and was encouraged to go to chemical
dependency treatment within a month of starting that counseling. B.B. was offered
access to insurance to obtain co-occurring treatment, but she missed three appointments
to help her enroll. B.B. refused three beds at inpatient treatment centers that apparently
could have accommodated her co-occurring disorder. After inpatient chemical
dependency treatment, B.B. was again offered counseling with Ms. Paullin, and co­
occurring treatment at YF A, but she either sporadically attended or did not attend at all.
Second, while the mother in SJ actively engaged in mental health sessions and
implemented suggested parenting skills, B.B. consistently failed to engage in the
provided services, and showed little to no ability to accept that her problems with mental
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In re the Welfare ofD.B.
illness and substance abuse were the reason her children were removed from her care.
Therefore, neither H W nor 8.J. require this court to find the Department failed to offer
B.B. all necessary services.
In fact, this case is most like Ramquist, 52 Wn. App. 854. In Ramquist, the mother
suffered from schizophrenia. Id. at 856. She received regular counseling, was informed
of classes near her home (one of which she completed), and was prescribed medication.
Id. at 861. Despite these services, the mother's doctors and her caseworker testified that
her parental deficiencies were untreatable and would not be remedied by further services.
Id. at 861. There the court found the Department offered all necessary services. Id.
Here, B.B. was offered a variety of treatments, both sequential and co-occurring,
and she failed to engage in or benefit from any of them. And like in Ramquist, B.B. 's
health care providers and caseworkers all testified that B.B. was resistant to counseling,
attended infrequently, and would not acknowledge her problems. There is no service that
can make someone acknowledge a problem, and without acknowledging her problems,
B.B. is untreatable. Thus, the trial court properly found the Department provided all
necessary services.
II. The Children IS Best Interests
Here, B.B. assigns error to the trial court's finding that terminating her parental
rights was in her children's best interests. Because she fails to make argument or cite to
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In re the Welfare ofD.E.
any authority to support her assignment of error, she has abandoned the challenge. See In
re the Dependency ofCT., 59 Wn. App. 490, 500, 798 P.2d 1170 (1990).
The outcome would be the same had B.B. properly argued the issue. All of the
children have significant needs that require a consistent parent who provides a safe stable
home, and recognizes their need for treatment and appropriate behavior management.
Where B.B. is unable to recognize her parental deficiencies or acknowledge her own
need for mental health and substance abuse treatment, she will be unable to provide the
home the children need to be able to recover and thrive. Accordingly, it is in the
children's best interests that B.B.'s parental rights be terminated.
We affirm.
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.
``tU'~if-
'i5
Siddoway, C.l.
WE CONCUR:
Lawrence-Berrey, J.
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