In re the Parental Rights to: E.J.E.G.

FILED
SEPTEMBER 28, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Parental Rights to ) No. 34771-1-111
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E.J.E.G. )
) UNPUBLISHED OPINION
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PENNELL, J. - J.G. appeals the trial court's order terminating his parental rights to
his infant son, contending the court erred in finding the Department of Social and Health
Services expressly, understandably, and timely offered all necessary services, specifically
a neuropsychological evaluation. We affirm.
FACTS
J.G.'s son, E.J.E.G., was born at less than 30 weeks gestation with serious medical
issues. 1 In January 2015, the Department filed a dependency petition. After a contested
fact-finding hearing, the court found J.G.'s son to be dependent and entered a
corresponding order in June 2015. In relevant part, the court ordered J.G.'s immediate
participation in a neuropsychological evaluation.
1 The mother of J.G.'s son passed away during the pendency of this matter and is
not a part of this appeal.
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In re Parental Rights to E.JE. G.
Social worker Kathy Bennett referred J.G. to Dr. Scott Mabee for a
neuropsychological evaluation on January 12, 2016. 2 An initial appointment was
scheduled for February 2, but J.G. did not show up and did not attempt to reschedule. On
March 9, 2016, a second social worker, Judy Warren, re-referred J.G. to Dr. Mabee for
the neuropsychological evaluation. In response to this, J.G. let Ms. Warren know he
refused to see Dr. Mabee and would only see a Dr. Smock at Spokane Psychiatry or go to
Eastern State Hospital for the evaluation. Ms. Warren contacted Spokane Psychiatry and
learned it was not contracted with the Department and did not want to contract with the
Department. And because J.G. was not a patient at Eastern State Hospital, that likewise
was not an option. Ms. Warren then contacted Neuroeducation Spokane, who agreed to
conduct the evaluation. Ms. Warren sent J.G. a letter on March 16, 2016, asking him to
contact her if he was willing to be evaluated by that institution. J.G. did not follow up
and no evaluation ever occurred.
J.G. failed to appear at the termination trial regarding his son. The proceedings
went forward without him and the court heard from two social workers and various
2
In its briefing, the Department contends this referral was made in January 2015.
See Br. of Resp't at 5. There is confirmation several times in the record that the referral
for a neuropsychological evaluation with Dr. Mabee initially occurred in January 2016.
See Report of Proceedings (Aug. 22, 2016) at 30, 46, 145.
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service providers. In general, the witnesses testified that J.G. was resistant to services
and hostile to the Department. Evidence was also presented that J.G. carries a mental
health diagnosis of a personality disorder not otherwise specified, with combined
narcissistic and antisocial personality traits. This diagnosis manifests itself in an attitude
of "I'm special" and "the rules don't apply [to me]." Report of Proceedings (Aug. 22,
2016) at 183-84. Based on this diagnosis, one of J.G.'s prior service providers, clinical
psychologist Dr. Sean Smitham, expressed concern that J.G. would not be able to follow
the recommendations from the providers because J.G. believes he knows best and is the
victim in this situation. Dr. Smitham felt it was unlikely J.G. would benefit from any
services because J.G. did not want to acknowledge any deficits, would resort to anger and
agitation when someone disagreed with him, and lacked the ability to take an objective
look at his behavior.
The court terminated J.G.'s parental rights to his son, stating J.G. was unwilling to
make the changes needed to meet his son's emotional, physical, mental, and
developmental needs. J.G. appeals.
ANALYSIS
J.G.'s argument on appeal is that the Department failed to offer him a
neuropsychological evaluation in a timely manner. He points to the six-month delay
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In re Parental Rights to E.JE. G.
between the court's initial order requiring an immediate evaluation and the date when a
referral was ultimately made. While J. G.' s arguments regarding the existence of a delay
are persuasive,3 his request for relief ultimately fails as he cannot establish prejudice.
At a proceeding terminating parental rights, the Department is tasked with proving
by clear, cogent and convincing evidence that it has offered a parent all reasonably
available services capable of addressing parenting deficiencies within the foreseeable
future. RCW 13.34.180(l)(d), .190(l)(a)(i). But the Department is not obliged to prove
it offered services that would have been futile. In re Dependency of TR., 108 Wash. App.
149, 162-63, 29 P.3d 1275 (2001). This is true even if the Department's failure to
provide a particular service is inexcusable. Id. at 164. If the record clearly supports a
conclusion that a given service would not have remedied a parent's deficiencies in the
foreseeable future, "the trial court can make a finding that the Department has offered all
reasonable services." In re Welfare of MR.H, 145 Wash. App. 10, 25, 188 P.3d 510
(2008).
The record here overwhelmingly supports a finding of futility. J.G. repeatedly
refused to pursue neuropsychological evaluation referrals offered by the Department.
3
As set forth above, the record does not support the Department's claim that a
referral was made in January 2015.
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There is no evidence suggesting J.G. 's responsiveness would have been better had he
been offered services earlier. To the contrary, J.G has, for years, demonstrated an
unwillingness to recognize his parental deficiencies and to consistently work with
professionals to address the parenting problems identified by social workers and the
court. The trial court had substantial evidence to find the Department established the
requirements for termination under RCW 13.34.180(1).
CONCLUSION
The order terminating J.G.'s parental rights to E.J.E.G. is affirmed.
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.
Pennell, J.
WE CONCUR:
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