Dependency Of D.f.-s. Lo Saelee v. Dshs

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of )
) No. 76150-1-1
D.F.-S., )
DOB: 03/29/2004, ) DIVISION ONE
)
Minor Child. ) UNPUBLISHED OPINION
)
STATE OF WASHINGTON, )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )
) -4
> p".
Respondent, )
) •;
V. )
) D> ru
Mai (1)111
L.S., )
)
Appellant. ) FILED: October 2, 2017 cn
)
TRICKEY, J. — Following successive dependencies during which L.S. made little
progress with services, the superior court terminated his parental rights to his son, D.F.-
S. L.S. appeals, arguing the Department of Social and Health Services (Department)
failed to satisfy the statutory prerequisites to termination. Because the Department met
its burden, we affirm.
FACTS
Pretrial History
L.S. is the biological father of D.F.-S, born March 29, 2004. In 2005, the
Department learned that D.F.-S.'s parents left him with inappropriate caregivers. His
mother voluntarily engaged in services and D.F.-S. was returned to her care.
In 2007, the Department learned that D.F.-S.'s parents were leaving him
unsupervised and that drug charges were pending against L.S. The Department removed
No. 76150-1-1 / 2
D.F.-S. and the parents entered agreed orders of dependency. The order relating to L.S.
required him to participate in parenting classes, a substance abuse evaluation, and
random urinalysis (UAs). He participated in a substance abuse evaluation but by 2009
was no longer complying with services. The court dismissed the dependency, however,
because D.F.-S.'s mother made sufficient progress to return him to her care.
In July 2013, the Department again removed D.F.-S. because his parents had
abandoned him. A family friend who retrieved D.F.-S. described the home as "filthy with
cat feces... and spoiled food and garbage on the floors and counters." The Department
filed and served another dependency petition. L.S., however, did not participate in the
early stages of the proceedings. He told the Department he was mourning the death of
his eldest son "and could not care for [D.F.-S.]"2
In September 2013, the court entered default orders of dependency as to both
parents. The order relating to L.S. alleged in part as follows:
2. The mother and father continue to show a pattern of relapsing and being
inconsistent in the child's life. The current caregiver reports that this is the
fifth time that she has had [D.F.-S.] in her care and that each time he
becomes more withdrawn and detached. She further describes him as
"desensitized" to the absence of his parents and increasingly
unaffectionate. In addition to the vulnerability that his age presents, [D.F.-
S.'s] primary caretaker, his brother Brandon Williams, was shot and killed
in May, 2013.
3. The mother and father have extensive Child Protective Services(CPS)
history. . ..
• • •
Clerk's Papers(CP) at 272(Findings of Fact(FF)2.3.3).
2 CP at 273(FF 2.4).
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No. 76150-1-1 / 3
5. On 7/3/13,[L.S.] told the Department that he was in mourning and could
not care for his son at this time. [He] has not seen his son since 6/12/13.
[He] did not deny his current use of crack cocaine.
6. On 7/8/13, [the mother] attended a Family Team Decision Making
Meeting (FTDM). . . . Mother refused to do a UA and later admitted to
actively using crack cocaine.[L.S.] did not attend the FTDM.
7. [The parents] pattern of behavior shows a serious disregard for the
consequences to [D.F.-S.] of such magnitude that it creates a clear and
present danger to the child's health, welfare and safety. The family situation
results in no adults in the home performing child [c]are duties and
responsibilities to assure the child's safety.13]
The order required L.S. to complete a drug and alcohol evaluation "within 30 days" and
follow any recommended treatment, submit to random UAs,and schedule a psychological
evaluation with a parenting component "within 30 days" and initiate all recommended
treatment "promptly."
During the following two and a half years, dependency review and permanency
planning orders indicated that L.S. was not complying with services or making progress.
In February 2015, L.S. entered the King County Jail on a charge of possessing
cocaine. In June 2015, he pleaded guilty and remained in the jail until his transfer to the
Washington Corrections Center in Shelton in October 2015. In December 2015, the
Department transferred him to the Cedar Creek Correctional Facility. He is eligible for
work release in June 2018.
In March 2016, a permanency planning order indicated that L.S. had completed a
drug/alcohol assessment while incarcerated.
3 Ex. 1
Ex. 1.
No. 76150-1-1 /4
In April 2016, the Department filed a petition to terminate both parents' parental
rights. The petition alleged that neither parent had complied with service requirements or
remedied their parental deficiencies. Trial commenced in October 2016.
Trial Testimony
Social worker Alyssa Livingston testified that she was assigned to D.F.-S.'s
dependency in the fall of 2013. According to Livingston, the parents, who were homeless,
abandoned D.F.-S. at a funeral for L.S.'s eldest son and "disappeared for weeks" without
leaving any contact information.5
Livingston testified that L.S. did not appear at the initial Family Team Decision
Making meeting. The mother attended the meeting and admitted that she and L.S. were
using crack cocaine.
L.S. did not contact Livingston until April 2014. Livingston provided him a copy of
the dependency order and tried to explain his services and visitation rules. L.S. angrily
threw the dependency order at Livingston and said "that essentially he wasn't going to do
anything and he felt like this was unnecessary."6 He then "stormed out of the room and
returned only to sign the visitation rules.7 Livingston testified that she offered L.S. his
court-ordered services, but he "was not interested in doing UAs or a psychological
evaluation. The only thing he was interested . . . in doing [was] the drug and alcohol
evaluation."5 Livingston said she stressed "the importance of keeping in communication
5 2 Report of Proceedings(RP)at 164.
62 RP at 156.
7 2 RP at 156.
8 2 RP at 174-75.
4
No. 76150-1-1 / 5
so that [she would] know what services they might be doing and . . . so we can do
visitation" but the parents left invalid contact information.9 L.S. "didn't remain in contact"
or engage in any services."
When asked if L.S. ever contacted her after their initial meeting, Livingston said he
came by on another occasion and told her he would get an alcohol evaluation at the Indian
Health Board. "[B]ut beyond that there was no conversation or anything about him
following through with the recommended services."11 Livingston and L.S. agreed that
since no referral was necessary for the Indian Health Board service, L.S. would initiate
that service on his own and notify Livingston when it was completed. Livingston did not
believe L.S. could safely parent D.F.-S. without addressing his substance abuse.
Livingston testified that L.S. only requested one visit with D.F.-S. while she was
assigned to the case. That visit occurred in May 2015.
Pamela Rago,the second caseworker assigned to D.F.-S.'s dependency, replaced
Livingston in September 2015. At that time, L.S. was incarcerated in the King County
Jail. Rago testified that none of his court-ordered services were available in the jail, but
she did arrange a visit with D.F.-S.
When L.S. moved temporarily to the Washington Corrections Center in Shelton in
October 2015, Rago sent him service letters and copies of the dependency and
dependency review orders. She continued to send him service letters when he moved to
9 2 RP at 161.
10 2 RP at 163.
11 2 RP at 158.
5
No. 76150-1-1/6
the Cedar Creek Corrections Center in December 2015. The letters listed the offered
services and the status of D.F.-S. and the court proceedings.
Shortly after L.S. arrived at Cedar Creek, Rago contacted the Department of
Corrections(DOC)about providing him with court-ordered services and visitation. DOC
agreed to perform an alcohol and drug assessment. Although DOC would not perform
the psychological evaluation, it authorized the Department to bring in its own evaluator.
DOC also indicated it would not perform UAs until a few months before L.S.'s release.
In February 2016, DOC performed a chemical dependency assessment and
concluded L.S. suffered from alcohol and cocaine dependence. The substance abuse
recovery unit supervisor recommended that he receive level 3.5 inpatient treatment. It is
undisputed that level 3.5 treatment is not available at DOC,that Cedar Creek only offers
up to level 2.1 treatment, and that level 3.3 treatment was available in another DOC
facility.
In a letter dated February 25, 2016, Rago updated L.S. on the status of his
services:
I understand that you have already had your Drug and [A]lcohol
assessment. I have been in contact with your attorney and have given her
two contracted professionals who may possibly be able to do your
Psychological Evaluation. I have contacted other providers but they do not
want to travel to Cedar Creek. I will be requesting your Drug and Alcohol
assessment from the Public Records Officer/Public Disclosure Unit/
Department of Corrections once I receive the Consent form back from you.
I am enclosing the consent form for you to sign and have enclosed a
postage paid envelope for you to mail it back to me.[12]
12 Ex. 26.
6
No. 76150-1-1 / 7
On March 8, 2016, Rago sent the signed consent form to DOC and requested a
copy of L.S.'s chemical dependency assessment.
By letter dated May 10, 2016, Rago again updated L.S. on her efforts to provide
him services:
I received your Chemical Dependency evaluation from DOC and sent your
attorney a copy. According to the evaluation the recommendation is for you
to participate in 3.5 Clinically Managed High-Intensity Residential Services.
I contacted DOC on 4/14/16 to inquire if the DOC would be able to provide
you with this service while you are at Cedar Creek and was informed that
the DOC does not provide level 3.5 services in any of their facilities and you
will need a referral to a residential treatment program when you are
released from prison.
Your attorney and I have agreed upon a provider to conduct your
psychological evaluation with a parenting (measure) component. I will be
making that referral shortly.(131
On May 20, 2016, Rago wrote a referral to Dr. Steve Tutty, who in turn scheduled
a psychological evaluation at Cedar Creek for July 2016. The evaluation eventually took
place in early August 2016.
Rago testified that D.F.-S. initially agreed to speak with L.S. by phone so she put
money in L.S.'s account to pay for phone calls. D.F.-S. soon changed his mind, however,
and declined further contact with L.S.
Rago testified that D.F.-S. is adoptable and could not be reunited with L.S. in the
foreseeable future, especially given D.F.-S.'s desire to not have contact with his father.
Rago stated that D.F.-S. "deserves to know what the next step is. He's in middle school.
He's starting to think about college, what his plans are for the future and if there was...
13 Ex. 26.
No. 76150-1-1 /8
possible reunification throughout the time it's a very vulnerable time in a young teenager's
life.”14 Rago concluded that termination was in L.S.'s best interests.
On cross-examination, Rago conceded she did not ask the King County Jail
whether it would provide court-ordered services but said it was her understanding that the
jail would not. She also conceded she did not ask DOC if UAs could be performed by
someone other than DOC personnel. Rago denied receiving any request from L.S. or his
attorney for family counseling services. She conceded she never offered such services,
but explained it would not be effective since D.F.-S. did not want to have contact with
L.S.: "1 believe that the child needs to want. . . family counseling in order for it to be
effective so he would be able to participate fully."15 If one family member does not want
to be in family counseling, "[n]o progress is being made, it's one-sided."16
Deborah Turner, the Court Appointed Special Advocate (CASA) for D.F.-S.,
testified that termination was in his best interests. She noted that D.F.-S. wanted to live
with his foster parents, not L.S. She concluded L.S. was incapable of providing adequate
care for D.F.-S., stating:
I don't believe that[L.S.] understands the very basic need of a child to have
consistency or structure ... from the parent in his life. And I don't get the
sense that [L.S.] comprehends the damage to [D.F.-S.] that has come from
his life choices and the neglect and abandonment in this case. I don't think
... he has the maturity to parent[D.F.-S.]through some of the difficult times,
the psychological and emotional journey that he has and will have to go
through. And even just an adolescent and a teenager.(171
143
RP at 290-91.
15 3 RP at 322-23.
16 3 RP at 322.
17 3 RP at 344-45.
8
No. 76150-1-1 / 9
She added that D.F.-S. "deserves to be able to live in the present and in the future and
know what's going to happen. And I think he deserves the life that comes from knowing
that you're going to be safe, that you're going to have reasonable expectations and . . .
responsibilities as a part of a family."18
Dr. Tutty testified that he performed L.S.'s psychological evaluation at the Cedar
Creek facility in August 2016. Dr. Tutty diagnosed L.S. with amphetamine and alcohol
use disorders and paranoid personality disorder. Testing showed L.S. at high risk to
negligently "endanger the child's safety and welfare."19 When asked if L.S. could safely
parent D.F.-S., Dr. Tully stated that "the risk factors are just too high in this case."2° He
testified that L.S. "does not appear to be amenable to treatment" of any kind due to his
"high levels of paranoia, his history of recidivism,[and] his lack of insight and judgment."21
He believed reunification could not be considered until L.S. completed intensive
residential chemical dependency treatment and demonstrated sobriety for at least 18
months following his release. Dr. Tutty pointed to drug use literature indicating that the
risk of relapse drops significantly when sobriety lasts 12 or more months. Dr. Tully also
recommended counseling for personality disorder by someone skilled in cognitive
behavioral therapy (CBT) and interpersonal treatment, a parent coach to improve the
bond between L.S. and D.F.-S. "[i]f the Department elects to proceed with reunification
18 3 RP at 346.
192 RP at 197.
202 RP at 199-200.
21 2 RP at 200, 208.
9
No. 76150-1-1 /10
upon [his] release," and completion of "the Triple P program" upon release given L.S.'s
"high child abuse risk... and the neglect surrounding his current dependency."22
On cross-examination, Dr. Tutty testified that L.S.'s responses during testing did
not show rigidity in his definition of the parent role. They also did not show tendencies
toward corporal punishment or excessive restriction of children's independence. The
testing showed no deficits in problem solving or decision-making.
Mental health therapist Mollie Wirtz testified that D.F.-S.'s foster parents asked her
to provide therapy for D.F.-S. in the fall of 2015. They met 18 times over the next year.
D.F.-S. was not willing to talk about his father during their sessions and expressly declined
an offer to facilitate monthly phone calls and visits with his father. Wirtz conceded she
never asked D.F.-S. if he wanted family therapy to repair his relationship with his father.
She testified, however, that successful family therapy would "require the child. .. to have
some buy-in."23
Karen Lavoie, the chemical dependency contractor who performed L.S.'s
assessment at DOC, testified that the level 3.5 treatment she recommended for L.S.
included sober support groups. While she did not recall telling L.S. that such support
groups were part of the treatment, her written assessment form included that
recommendation and she checked a box on the form indicating L.S. "had been informed
of the assessment and the results."24 Lavoie testified that she would have gone over the
22 Ex 24.
231 RP at 51.
24 2 RP at 122.
10
No. 76150-1-1 / 11
form with L.S. before checking that box. When asked if L.S. was willing to attend sober
support groups, Laovie said, "only if it was a requirement."25
L.S.'s DOC classification counselor, Susan Erickson, testified that in September
2106, Cedar Creek requested his transfer to a DOC facility offering level 3.3 treatment.
Because the termination trial was imminent, Erickson decided a transfer should await the
end of trial so that a counselor familiar with L.S. would still be on board during the tria1.26
L.S. testified and admitted having four prior convictions for possession of controlled
substances. He stated that he had voluntarily entered treatment three times over the
years but had never completed treatment. He conceded he had not participated in
Alcoholics Anonymous or other support groups at Cedar Creek. He denied knowing that
his court-ordered services included random UAs.
L.S. stated he was pursuing his general education diploma and planned to get a
stable job and stable living situation upon his release. He thought it would take "[a]t least
a year" to accomplish those goals after his release.27 When asked if he was essentially
"asking for temporary placement for. .. the next three years while you have two years to
complete your sentence ... and then another year before you can get your living situation
together," L.S. said,"Yes."28 When asked if he completed any services during the earlier
dependency, L.S. conceded he had not and claimed the court did not ask him to complete
any services.
252 RP at 122.
26 1 RP at 57.
27 2 RP at 148.
28 2 RP at 236.
11
No. 76150-1-1 / 12
L.S.'s cousin and sister testified to his positive attributes, appropriate caregiving,
and parenting skills.
On November 3, 2016, the court entered the following pertinent findings of fact
and conclusions of law:
2.3.2 [L.S.] entered an agreed order on June 4, 2008. . . . The father
partially complied with services at the outset of that dependency by
participating in a drug and alcohol evaluation. However, by November of
2009 the father was no longer compliant with his services and had indicated
that he could not care for the child. Ultimately the mother was able to make
sufficient progress in her services to allow return of[D.F.-S.]to her care and
dismissal of the dependency on 12/27/2010. ...
2.4 Although [L.S.] was personally served with the second dependency
petition and notice of the court dates, he did not participate at all in early
stages of the dependency. . . . The father was ordered to participate in
Random Urinalysis (UAs), a Drug/Alcohol evaluation, and a psychological
evaluation with a parenting component and to follow the recommendations
of these evaluations.
2.6 Ordered services and all services, reasonably available, and capable of
correcting parental deficiencies have been understandably offered or
provided.
2.6.1 The father simply did not make himself available to participate
in services during the first nearly two years of the dependency. He
completely disappeared for nearly all of the first years. ...
2.6.3 Ms. Livingston was unable to make contact with the father until
he appeared without notice at her office sometime in April 2014. At
that meeting, she attempted to explain court ordered services to the
father and provide him with the court's order. The father became very
angry and threw the order in her face. . .. The father stormed out of
the meeting and returned only when the mother requested he come
back to sign the rules of visitation. In a subsequent meeting, he told
Ms. Livingston that he would only participate in a drug and alcohol
assessment and planned to initiate that service at Seattle Indian
Health Board, which did not require a referral from the Department.
12
No. 76150-1-1 /13
2.6.4. Ms. Livingston was unable to provide the father a referral for a
specific UA facility because the father would not tell her where he
was living or work with her to establish a UA location that was in the
area he was staying. However, father did come to her office on at
least four occasions.... In each instance, he did not coordinate with
her prior to arriving. ...
2.6.5 Despite assurances from Ms. Livingston that she would not
contact law enforcement concerning the father's outstanding
warrants, the father did not make himself available to participate in
services until after his arrest in September 2015.
2.6.6... At all... hearings[between 11/13 and 3/15]the father was
found not in compliance with any of his services, not making progress
and not visiting consistently with the child.
2.6.7 Social Worker Pam Rago . . . arranged for [D.F.-S.] to visit his
father twice at the King County Jail prior to the father's transfer to
DOC custody.
2.6.8 Ms. Rago worked with the father's counselor at the DOC and
arranged for him to participate in both a substance abuse
assessment and a psychological evaluation with a parenting
component at Cedar Creek Correctional Facility.
2.7 There is little likelihood that conditions will be remedied so that the child
can be returned to the parent in the near future.
2.7.1 This child has been out of his father's care for a substantial part
of his life. He has been found dependent twice, was in a voluntary
placement prior to that and has been in the informal care of his family
and friends at various points in his life when his parents were
unwilling or unable to care for him. The near future is determined
from the point of view of the child and the nearly three years it would
take for the father to be able to provide the safety and stability this
child needs is well beyond his near future.
2.7.2 The father has been incarcerated since September 2014, first
at King County Jail, followed by his transfer to the[DOC].The father's
corrections officer, Susan Erickson, confirmed that the father's
release date is December 18, 2018 and that he would be eligible for
13
No. 76150-1-1 /14
work release on June 17, 2018, presuming his behavior remains
good.
2.7.3 Following his release from incarceration, the father will need a
significant period of time to address his deficiencies in order to be
available to provide a stable and safe placement for his son. The
father estimated that he would need a year following his release
before he would be ready to parent [D.F.-S.1 However, Dr. Tutty
recommended that reunification not be considered until the father
had demonstrated sobriety and stability for 18 months following his
release. Dr. Tully noted that the other services he recommended for
the father, should reunification be attempted, would need to be
engaged in following his demonstration of stable sobriety.
2.7.5 Dr. Tutty was very concerned about any plan to reunite [D.F.-
S.] with his father. He indicated that where there is a pattern of this
length of substance abuse coupled with his history of neglect there
is a high likelihood of future neglect. This is not prognostic of a safe
return of the child in the near future. Dr. Tutty felt that the risk factors
were just too high. He did comment that one of the factors he
considered was[L.S.'s] numerous failed attempts to complete a drug
and alcohol treatment program and maintain sobriety.
2.7.6 The father's lack of insight was apparent throughout his
testimony. He felt that there was no impact to [D.F.-S.]from his drug
use, even though he was absent from [D.F.-S.'s] life for probably the
majority of [D.F.-S.'s] life and certainly the most recent years of his
life because of criminal problems related to his drug use. He also
failed to recognize that because of his use of drugs and
incarceration, [D.F.-S.] was frequently left in dangerous situations
without appropriate supervision.
2.7.7 His lack of insight was also demonstrated by his testimony
regarding his own need for [D.F.-S.] to be in his life, indicating that
[D.F.-S.] had no choice but to wait for another three years because
he was his son. He demonstrated no recognition that his son's needs
might be different than his own or that his son's needs needed to be
prioritized.
2.7.8 While the father expressed that he would do whatever was
needed to have his child returned to his care, his decision not to seek
help through the sober support meetings and mental health
counseling that were available at his correctional facility are not the
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No. 76150-1-1/ 15
decisions of someone dedicated to repairing the situation that
brought this child into care.
2.8 Continuation of the parent[-]child relationship clearly diminishes this
child's prospects for early integration into a permanent and stable home.
2.8.1 The court has considered the factors set forth in [RCW]
13.34.145(5)(b) and does not believe that the father has a
meaningful relationship with his son.. . .
2.8.2 Even if there had been a meaningful relationship between the
father and [D.F.-S.], there is not an alternative petition before the
court that would allow for the permanence. No appropriate guardian
has come forward and expressed interest in providing permanence
for this child.
2.8.3 At this point, it is clear that [D.F.-S.] does not wish to have [a]
relationship with his father. He has declined visits and phone calls.
[D.F.-S.] has indicated that he wishes to be adopted. Although the
wishes of a child [D.F.-S.'s] age are certainly not conclusive, they are
a factor that must be considered.
2.8.4 [D.F.-S.] has prospects for adoption and would not be able to
integrate into a permanent and stable home until his legal
relationship with his father is terminated.
2.9 Termination of the parent-child relationship between [L.S.] and [D.F.-S.]
is in the child's best interest.
2.9.1 There is no doubt that the father is sincere in wanting to parent
[D.F.-S.] and to rehabilitate his life. However, given the history of the
father's many relapses and absences from this child's life,
considered along with the long period of instability that this child has
lived through, [D.F.-S.] should not have to wait any longer for
permanence.
2.9.2 Despite the Department's efforts to provide contact between
the father and [D.F.-S.], when [D.F.-S.] was provided the discretion
to reject further contact, he chose to do so. He visited with his father
twice at King County Jail and participated in one phone call with his
father at Cedar Creek Corrections Center and thereafter refused to
speak with his father.
15
No. 76150-1-1 /16
2.10 Based upon the evidence presented and findings above, the court finds
current unfitness. There is no dispute that the father will be unavailable to
provide a safe and stable home for his son prior to his release in December
2018. The father's lack of insight and undressed substance abuse issues
would present a risk to his son if he were to return to his father's care.
The status of the child's sibling relationships and the nature and extent of
sibling placement, contact or visits is as follows: [D.F.-S.] has an adult
sibling with whom he does have periodic contact.[291
The court concluded that the Department proved the criteria for termination by
clear, cogent, and convincing evidence and that termination was in D.F.-S.'s best
interests. L.S. appeals.
ANALYSIS
Standard of Review
Parental rights are a fundamental liberty interest protected by the United States
Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982). To terminate parental rights, the State must satisfy a two-step test. First, it must
prove the following statutory elements by clear, cogent, and convincing evidence:
(a) That the child has been found to be a dependent child;
(b)That the court has entered a dispositional order pursuant to RCW
13.34.130;
(c)That the child has been removed or will, at the time of the hearing,
have been removed from the custody of the parent for a period of at least
six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
29Clerk's Papers(CP)at 272-77. L.S. assigns error to findings of fact 2.6 to 2.6.11, 2.7 to 2.7.8,
2.8 to 2.8.4, 2.9 to 2.9.4, and 2.10.
16
No. 76150-1-1 / 17
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future. . .[; and]
(f) That the continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.
RCW 13.34.180(1). If the trial court finds that the State has met its burden under RCW
13.34.180, it may terminate parental rights if it also finds by a preponderance of the
evidence that termination is in the "best interests" of the child. RCW 13.34.190(2)(b).
On review, unchallenged findings of fact are considered verities. In re Interest of
J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). Challenged findings will be upheld
"[i]f there is substantial evidence which the lower court could reasonably have found to
be clear, cogent and convincing... ." In re Aschauer,93 Wn.2d 689,695,611 P.2d 1245(1980). Because the trial court hears the testimony and observes the witnesses, its
decision is entitled to deference. In re Dependency of A.V.D.,62 Wn. App. 562, 568,815
P.2d 277 (1991). Consequently, we defer to the trier of fact on issues of conflicting
testimony, credibility of the witnesses, and the weight or persuasiveness of the evidence.
A.V.D., 62 Wn. App. at 568; In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470(2011); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990).
L.S. contends the Department failed to prove by clear, cogent, and convincing
evidence that it expressly and understandably offered or provided all court-ordered and
necessary services as required by RCW 13.34.180(1)(d). Specifically, he contends the
Department failed to "(a) timely offer a court-ordered psychological evaluation,(b)failed
to provide integrated psychological and chemical dependency treatment, (c) failed to
17
No. 76150-1-1 /18
timely investigate, obtain, and offer services due to incarceration, and (d)failed to provide
attachment services."30 We address each of these arguments in turn.
Timeliness of Psychological Evaluation and Recommended CBT
L.S. contends the Department failed to timely offer either the court-ordered
psychological evaluation or the CBT recommended in that evaluation. Noting that the
evaluation occurred nearly three years after the court ordered it and that he did not receive
CBT during the brief two-month period between the evaluation and the termination trial,
L.S. contends the delay in offering those services undercuts the court's conclusion that
the Department provided all necessary services as required by RCW 13.34.180(1)(d).
See S.J.,162 Wn. App. at 881-84 (reversing termination due to Department's failure to
timely provide court-ordered mental health service that might have helped the parent
progress in other services at an earlier stage and would not have been futile); In re
Dependency of T.L.G.,126 Wn. App. 181, 198-203, 108 P.3d 156 (2005) (where
"protracted delay" in obtaining psychological evaluations was not"solely(or even mostly)"
caused by the parents, there was no reason why mental health services could not be
provided pending the evaluations, and there was no finding parents could not have
benefitted from the services, the delay and "false premise that all other services should
await the [evaluation] results" fatally undermined the court's finding that necessary
services were offered).
The record demonstrates, however, that the vast majority of the delay was caused
by L.S., not the Department. In an unchallenged finding, the court found L.S. "did not
30 Br. in Supp. of Mot. for Accelerated Review at 2.
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participate at all in early stages of the dependency."31 In several challenged findings, the
court found he left invalid contact information with the Department,"did not make himself
available to participate in services until after his arrest in September 2015," rejected
caseworker Livingston's initial attempt to explain his court ordered services, and later told
Livingston he would only participate in a drug and alcohol assessment and planned to
initiate that service himself at Seattle Indian Health Board.32 These findings are supported
by substantial evidence.33
The record also demonstrates that there was no unreasonable delay once L.S.
became available for services. Caseworker Rago testified that when she took over the
case in September 2015, L.S. was in the King County Jail and that, to her knowledge, the
court-ordered services were not available in the jail. When L.S. moved temporarily to the
Washington Corrections Center in Shelton in October 2015, Rago sent him a service letter
informing him of the services being offered. She included a copy of the dependency order
and the most recent dependency review hearing order. She sent L.S. similar letters
throughout the next year.
Despite L.S.'s inaction in response to Rago's service letters, Rago contacted a
DOC employee at Cedar Creek shortly after his arrival there. They discussed "what
services were available for [L.S.]" and "went over the dependency order."34 They
specifically discussed setting up a psychological evaluation. Rago subsequently received
31 CP at 273(FF 2.4).
32 CP at 273(FF 2.6.1, 2.6.3, 2.6.5).
33 Under the clear, cogent, and convincing evidence standard, the Department carries its burden
if the evidence proves that the necessary facts are highly probable. In re Welfare of M.R.H., 145
Wn. App. 10, 24, 188 P.3d 510(2008).
34 3 RP at 270.
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an e-mail from DOC informing her that it would not do the psychological evaluation, but
the Department could bring in its own provider to do the evaluation. Rago then contacted
L.S.'s attorney who agreed to use Dr. Tutty for the psychological evaluation. In May 2016,
Rago made a referral for the psychological evaluation to Dr. Tutty. Dr. Tutty completed
the evaluation in August 2016.
In short, the psychological evaluation was timely and repeatedly offered to L.S.
and there was no unreasonable delay in its provision. Nor was there an unreasonable
delay in offering L.S. CBT. As previously noted, Dr. Tutty recommended CBT in August
2016, only two months before the termination trial. And nothing in the record indicates
that CBT was available at Cedar Creek.
In any event, any offer of CBT would have been futile. Termination is appropriate
"even where the State inexcusably fails to offer a service to a willing parent . . . if the
service would not have remedied the parent's deficiencies in the foreseeable future, which
depends on the age of the child." In re Dependency of T.R., 108 Wn. App. 149, 164, 29
P.3d 1275(2001). This means that when the record establishes that an offer of services
would have been futile, the trial court can make a finding that the Department has offered
all reasonable services. In re Ferguson, 32 Wn. App. 865,869-70,650 P.2d 1118(1982),
rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983); In re Parental Rights to
K.M.M., 186 Wn.2d 466, 483, 379 P.3d 75 (2016). Considering L.S.'s minimal
participation in services throughout his dependency and his failure to use available mental
health counseling or sober support services during his entire stay at Cedar Creek, any
offer of CBT during the few months before the termination trial would have been futile.
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Psychological and Chemical Dependency Treatment
L.S. next contends the Department failed to provide integrated mental health and
chemical dependency treatment as required by In re Welfare of S.J., 162 Wn. App. 873,
881-84, 256 P.3d 470(2011). He contends S.J. is controlling and requires reversal. We
disagree.
In S.J., the dispositional order stated that mental health services would be provided
only after the mother achieved sobriety. After three failed attempts to complete inpatient
drug treatment, the mother succeeded soon after receiving mental health services. On
appeal, the mother argued that "coexistent mental health services were necessary for
successful early treatment." S.J., 162 Wn. App. at 882. The Sd. court determined the
mother's initial inability to complete inpatient treatment was linked to her mental health
issues. 162 Wn. App. at 882. The court noted a legislative finding that often "'integrated
treatment of co-occurring disorders is critical to successful outcomes and recovery.'
162 Wn. App. at 882 (quoting Laws of 2005, ch. 504, § 101). The court concluded the
Department failed to timely offer or provide all necessary services because it did not offer
concurrent mental health and substance abuse treatment for her co-occurring disorders.
This case bears no resemblance to S.J. Neither the dispositional order nor the
Department required sequential substance abuse and mental health treatment in this
case. Rather, the dispositional order offered chemical dependency and psychological
evaluations simultaneously and directed L.S. to initiate both within 30 days. In addition,
the parent in SJ. fully engaged in services but was hampered in her substance abuse
treatment by the Department's refusal, despite knowledge of identified mental health
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issues, to offer concurrent mental health treatment. By contrast, L.S. did not participate
in any evaluations or services until late in the dependency and eschewed available
counseling and sober support groups while incarcerated. S...1. is inapposite.35
Timely Services During Incarceration
Citing RCW 13.34.136(2)(b)(i)(A),36 L.S. contends the Department "failed to timely
request a transfer . . . to a prison facility that provided [necessary] services . . . ."37
Specifically, he contends that because his chemical dependency assessment
recommended level 3.5 treatment "immediately,"38 and because level 3.3 treatment was
available at another facility, the Department had a duty to immediately transfer him to that
facility. We reject this contention for several reasons.
First, the Department contends, and L.S. does not dispute, that it "has no control
over the placement of inmates within the Department of Corrections" and "lacks authority
to move any incarcerated person or to recommend such movement."39 Second, nothing
in the record demonstrates that the Department could have facilitated an earlier transfer.
In fact, the supervisor of the DOC substance abuse recovery unit testified that DOC
attempts to find other facilities that offer inmates' treatment needs, but transfers are
available only under specific conditions. For example, the receiving facility must be
35 L.S.'s claim that "[t]he Department failed to offer a psychological evaluation because L.S. had
not demonstrated he was sober enough" is not supported by the record. Br. in Supp. of Mot. for
Accelerated Review at 21.
36 RCW 13.34.136(2)(b)(i)(A) provides in part: "If the parent is incarcerated," the permanency plan
must "include treatment that reflects the resources available at the facility where the parent is
confined."
37 Br. in Supp. of Mot. for Accelerated Review at 23.
382 RP at 113.
39 Br. of Resp't at 22.
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appropriate to the inmate's custody level and estimated release date. A transfer is also
dependent on bed availability and requires input from the classification and transportation
units "because they're responsible for the actual risk ratings and custody level for the
offenders."4° The record thus supports the Department's contention that a transfer to
another facility was beyond its control.
Third, the focus of RCW 13.34.136(2)(b)(i)(A) is on providing treatment "available
at the facility where the parent is confined."41 Thus, the Department's duty was to make
reasonable efforts to refer an inmate to services available in his or her facility. See In re
Dependency of D.L.B., 186 Wn.2d 103, 123, 376 P.3d 1099(2016)(Department's duty is
to provide all services that are reasonably available in the facility where the parent is
confined). The Department fulfilled that duty.
Parent-Child Attachment Services
L.S. asserts the Department did nothing to implement a service recommended by
Dr. Tutty "to improve the emotional bond between L.S. and [D.F.-S.]."42 But Dr. Tutty
recommended this service only "[i]f the Department elects to proceed with reunification
upon [L.S.'s] DOC release."43 Furthermore, the record and findings in this case
demonstrate that an offer of bonding services during the few months between Dr. Tutty's
report and termination would have been inappropriate and futile.
402 RP at 127.
41 (Emphasis added.)
42 Br. in Supp. of Mot. for Accelerated Review at 26.
43 Ex. 24(emphasis added).
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No. 76150-1-1 / 24
Several witnesses, including Dr. Tutty, indicated that bonding therapy would be
inappropriate and likely unsuccessful until D.F.-S. desired contact with his father. D.F.-
S. expressed no desire to contact L.S. prior to termination. In addition, Dr. Tully noted
that L.S. was "unlikely to benefit from treatment services, as his level of paranoia would
likely interfere with genuinely applying treatment skills into his own parenting."'" These
facts demonstrate futility. See K.M.M., 186 Wn.2d at 480-81, 483 (attachment and
bonding service would have been futile where child "could not tolerate interactions with
her father," "refused to attend visitation," and "would not be a willing participant in any
therapeutic services with her father"); K.M.M., 186 Wn.2d at 485 (father's mental health
issues rendered him unable to support the child's attachment to him).
L.S.'s remaining arguments fail because they proceed from the premise, rejected
above, that the Department failed to provide all necessary services and/or are too
conclusory to merit discussion. We note, however, that the record belies his conclusory
assertion that termination was not in D.F.-S.'s best interests. Caseworker Rago and the
CASA agreed that termination was in D.F.-S.'s best interests. Caseworker Livingston
saw no progress with L.S. during her time on the case and said he could not safely parent
D.F.-S. until he addressed his substance abuse. Dr. Tutty testified that L.S. would have
to demonstrate 18 months of sobriety after his release in 2018 before reunification could
be considered. Considering D.F.-S.'s age, adoptability, and express preference to have
no contact with L.S., and given L.S.'s lack of progress and long-term unavailability, the
record amply supports the court's finding that termination was in D.F.-S.'s best interests.
44 Ex. 24.
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Affirmed.
WE CONCUR:
25