IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of ) No. 82421-0-I ) (Consolidated with No. 82422-8-I) U.M.R.B. and E.E.B., ) ) UNPUBLISHED OPINION Minor children. )
BOWMAN, J. — L.B.1 appeals the trial court’s order terminating his parental
rights to his daughters, U.M.R.B. and E.E.B. He argues that the Department of
Children, Youth, and Families2 failed to explore adequately whether he has an
intellectual disability and offer him services expressly and understandably. He
also argues that the Department did not adequately tailor services to his
individual needs. Because several psychological evaluations show L.B. has no
intellectual disability, and the record shows the Department adequately tailored
L.B.’s services to his academic deficiency, we affirm.
FACTS
E.E.B. and U.M.R.B. are biological sisters, born to mother M.J.3 and father
L.B. E.E.B. was born in March 2015 and U.M.R.B. was born in July 2016.
1 We grant the father’s motion to use only his initials throughout the opinion. 2 Washington State created the Department of Children, Youth, and Families (DCYF) in 2017. DCYF oversees several services previously offered by the Department of Social and Health Services (DSHS). Because DSHS initiated the dependency petitions and DCYF initiated the termination petition, we refer to the agencies collectively as the “Department” throughout the opinion. 3This appeal concerns the trial court’s termination of only L.B.’s parental rights. M.J. died before the termination hearing.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82421-0-I (Consol. with No. 82422-8-I)/2
2015 Dependency
E.E.B. immediately became the subject of a dependency petition. At birth,
her urine tested positive for cocaine, opiates, and THC,4 so the Department
placed her in protective custody. Two months later, the court entered an agreed
order of dependency as to L.B.5 As part of that dependency, the court ordered
L.B. to complete services, including two months of weekly random urinalyses
(UAs), an Incredible Years parenting class, a psychological evaluation with a
parenting component and any recommended treatment, as well as in-home
services after reunification.
In July 2015, licensed clinical psychologist Dr. Michael O’Leary
administered L.B.’s psychological and comprehensive parenting evaluation. In
his interview with Dr. O’Leary, L.B. reported he was an “average” student in
school, though he needed extra help learning to spell during elementary school
and had some special education support in high school. He did not graduate
from high school but did graduate from a trade school.
Dr. O’Leary tested L.B.’s intellectual ability using the “Wonderlic Personnel
Test” (WPT). The WPT measures general mental ability and correlates strongly
with the “Wechsler Adult Intelligence Scale” (WAIS), which measures IQ.6 L.B.
scored in the third percentile, a score predictive of an IQ between 68 and 78.
While that score would place L.B. in the “borderline range” of intellectual
capacity, Dr. O’Leary observed that L.B. had a well developed vocabulary for
4 Tetrahydrocannabinol. 5 The court entered a default order of dependency as to M.J. three months later. 6 Intelligence quotient.
2 No. 82421-0-I (Consol. with No. 82422-8-I)/3
someone who did not complete high school, and noted that L.B. “appeared to
function within normal limits in terms of his problem-solving and intellectual
ability.” He concluded that L.B.’s “presentation suggested a higher level of
[intellectual] function than was reflected in his WPT scores.” Dr. O’Leary did not
conclude that L.B. would have trouble understanding offered services or that he
required individually tailored services.
Dr. O’Leary also administered emotional and personality testing, which led
him to diagnose L.B. with unspecified personality disorder with antisocial,
narcissistic, and paranoid elements and an “[a]cademic or educational problem.”
Based on the personality disorder diagnosis, Dr. O’Leary concluded that L.B. did
“not appear to be amenable to treatment.” Even so, after nearly two years, L.B.
successfully completed his services. So in June 2017, the Department returned
E.E.B. to L.B.’s care. The court then dismissed the dependency petition.
2018 Dependencies
In February 2018, Kent police went to L.B.’s home to investigate a report
that L.B. assaulted his brother-in-law, the property owner. After entering the
home, officers noted “unsafe living conditions,” including unfinished “concrete
slab” floors, almost no furniture, only one mattress on the floor, piles of garbage
and diapers along the walls, and uncapped bottles filled with what appeared to
be urine on an end table. The home reeked of raw sewage. A neighbor reported
to the officers that the home had no functional plumbing, and they saw L.B.
dumping buckets of sewage into a line of trees nearby.
3 No. 82421-0-I (Consol. with No. 82422-8-I)/4
After investigating the assault, officers arrested L.B. Because M.J. had
been in custody on unrelated charges since January, the Department placed 3-
year-old E.E.B. and 19-month-old U.M.R.B. in protective custody. The
Department petitioned for dependency,7 and the court ordered the children to
remain in the Department’s custody because of the unsafe and unsanitary living
conditions at L.B.’s home.
In April 2018, L.B. pleaded guilty to misdemeanor neglect of a child. As
part of his sentence, the court entered a domestic violence (DV) no-contact
order, prohibiting L.B. from contacting E.E.B. and U.M.R.B. for three years.
Several days later, the superior court entered a contested order of
dependency as to L.B. for both children.8 The court ordered L.B. to engage in
services, including a psychological evaluation with a parenting component and
any recommended treatment, a DV evaluation and recommended treatment, and
in-home services if the children return to live with L.B. The court recognized that
the no-contact order did not allow L.B. to contact the children, so the court
ordered the Department to facilitate supervised visitation if it was “rescinded or
modified to allow contact.”
In May 2018, the Department referred L.B. for a DV evaluation at La
Esperanza Health Counseling Services. L.B. completed the evaluation, which
recommended a 52-week “trauma-informed cognitive behavioral therapy level 3
domestic violence intervention treatment” program, including both group and
7 E.E.B. and U.M.R.B. had individual dependency cases but a joint termination hearing. L.B. filed separate notices of appeal as to each child, which we consolidated under No. 82421-0-I. 8 The court also entered a default order of dependency as to M.J.
4 No. 82421-0-I (Consol. with No. 82422-8-I)/5
individual sessions. The Department also referred L.B. for a psychological
evaluation with Dr. Richard Washburn at Clinical and Forensic Psychology. L.B.
did not report for his evaluation until September 2018. Like Dr. O’Leary in 2015,
Dr. Washburn conducted testing to assess L.B.’s mental health, personality, and
intellectual capacity.
Sometime after his evaluation with Dr. Washburn, L.B. moved to Las
Vegas, and then shortly after, to Houston. In February 2019, Houston police
arrested and jailed L.B. for assaulting M.J. L.B. pleaded guilty to misdemeanor
assault of a family member.
Dr. Washburn issued his report in March 2019.9 Dr. Washburn’s testing
placed L.B.’s intellectual abilities in the low average range. Dr. Washburn
recommended that L.B. undergo a medication assessment and regular UAs,
attend individual mental health therapy, attend a DV treatment program, and
participate in parenting classes that address nurturing behavior and proper child
care, as well as the stages of children’s emotional, physical, and psychological
development. The court incorporated the recommendations from La Esperanza
and Dr. Washburn into L.B.’s treatment plan.
The Department referred L.B. to local service providers for each of the
recommended treatment programs. L.B. then told the Department for the first
time that he was not in Washington. So Department social worker Marissa
McGee updated L.B.’s service letters, referring him to agencies in Houston that
9 Dr. Washburn did not testify at the termination hearing, and his report is not in the record. Information about Dr. Washburn’s report comes from the testimony of L.B., subsequent psychological evaluator Dr. Tatyana Shepel, and Department social worker Marissa McGee.
5 No. 82421-0-I (Consol. with No. 82422-8-I)/6
could provide the necessary services. After serving his misdemeanor assault
sentence, L.B. began his services.
For DV treatment, the Department referred L.B. to an 18-week “Battering
Intervention and Prevention Program” (BIPP) run by Aid to Victims of Domestic
Abuse. McGee testified at the termination hearing that she could not find a level
3 program in the Houston area like La Esperanza suggested, and BIPP was the
most suitable for L.B.’s needs. L.B. completed BIPP in August 2019. He scored
well in attendance, engagement, respectful conduct, and sobriety but received
low scores in accountability, help seeking, application of skills, and constructive
participation.
For UAs, the Department referred L.B. to Houston Medical Testing
Services. But L.B. did not complete any UAs while living in Texas. For individual
counseling and medication management, the Department referred L.B. to the
Harris Center for Mental Health, and later, the Ben Taub Hospital and SUN
Behavioral Houston. There is no evidence that L.B. completed those services in
Houston.
2019 Petition for Termination of Parental Rights
By August 2019, L.B. had finished only BIPP in Houston. The no-contact
order still restrained him from seeing his daughters, and he had six active
warrants for his arrest out of Kent Municipal Court for failing to appear for six
different cases. The Department petitioned to terminate L.B.’s parental rights to
E.E.B. and U.M.R.B.,10 and the court set a fact-finding hearing for December
10 The Department also petitioned to terminate M.J.’s parental rights.
6 No. 82421-0-I (Consol. with No. 82422-8-I)/7
2019. For various reasons, the court granted both parties’ motions to continue
the termination hearing several times between December 2019 and December
2020.
Resumption of Services
In October 2019, L.B. returned to Washington State. The Department
issued another service letter, again referring L.B. to local services. The
Department referred L.B. to A Walk to Freedom Counseling and the Crossroads
treatment center for UAs, and L.B. completed 90 days of clean UAs.
The Department referred L.B. to Sound Mental Health for his remaining
services. But instead of going to Sound Mental Health, L.B. chose to attend
parenting classes and individual mental health therapy with Alicia Ross at Valley
Cities Behavioral Health Care.
L.B. also returned to La Esperanza to complete his 52-week level 3 DV
treatment. He received individual therapy there because his DV counselor, Zoila
Saritama, conducted the group sessions in Spanish. But after about 24 weeks of
treatment, the contract between the Department and La Esperanza expired. The
Department could not find another level 3 program; so instead, McGee referred
L.B. to the state’s Social Treatment Opportunity Programs (STOP), which offered
a combination of DV treatment and parenting classes. L.B. completed 12 weeks
of treatment at STOP. L.B. also independently sought additional services from
different agencies. He found and completed an 8-week “[f]ather’s support
group,” and voluntarily enrolled in and completed both an 8-week “positive
parenting program” and a 6-week “[p]arent [t]raining [c]ourse.”
7 No. 82421-0-I (Consol. with No. 82422-8-I)/8
In February 2020, the court in L.B.’s 2018 child neglect case modified the
no-contact orders, permitting him supervised visits with the children. But before
L.B. could begin his visits, the COVID-19 pandemic11 hit, precluding in-person
visits. So in March 2020, L.B. began “virtual visit[s]” with the children through a
live video chat service. E.E.B. was now 5 years old and U.M.R.B. was 3 years 8
months old, and it had been more than 2 years since the children had contact
with L.B.12
In August 2020, the Department learned that Dr. Washburn had retired
and become unavailable to testify at the termination hearing. As a result, L.B.
completed another psychological evaluation with a parenting component, this
time with licensed clinical neuropsychologist Dr. Tatyana Shepel. Dr. Shepel
administered the WAIS IQ test to assess L.B.’s intellectual capacity and the
“Wide Range Achievement Test—Fourth Edition” (WRAT-4) to assess his
academic ability, as well as two personality assessment inventories and a
parenting inventory.
Dr. Shepel submitted her report in October 2020. Consistent with prior
evaluations, the WAIS showed borderline intellectual functioning. L.B.’s working
memory and processing speed were borderline and his verbal abilities were low
average. Yet based on clinical impressions, Dr. Shepel believed L.B.’s “true
intellectual functioning was in the low average range because he was very
11 COVID-19 is the World Health Organization’s official name for “coronavirus disease 2019,” first discovered in December 2019 in Wuhan, China. COVID-19 is a severe, highly contagious respiratory illness that quickly spread throughout the world. 12 Visitation stopped a few months later when the children were not in therapy because the pandemic suspended their in-person sessions. After the children resumed their regular therapy, L.B. resumed supervised visitation, but the visits were by phone only.
8 No. 82421-0-I (Consol. with No. 82422-8-I)/9
impulsive and very distractible and inconsistent.” The WRAT-4 revealed that L.B.
struggled with spelling, and while he showed strength in reading, he was
borderline in reading comprehension. According to Dr. Shepel, “[h]e made
multiple errors, multiple mistakes” on the tests, “not because he didn’t have the
knowledge but because he was rushing through and not paying attention to
details.” She described asking L.B. to slow down multiple times because when
he slowed down, he could understand the sentences correctly. Dr. Shepel
diagnosed L.B. with “impulse disorder” and a “specific learning disorder with
impairment in spelling.”
Based on the WRAT-4 results, Dr. Shepel said L.B. might not benefit from
treatment in a group setting “when there is a lot of reading material that . . .
requires higher than [a] sixth grade level of reading comprehension.” She
recommended L.B. receive services in a one-on-one format because of his
“deficiencies in academic achievement.”
Both personality inventories assessed the “same domains of personality
functioning.” But L.B. produced only one valid test result because he did not
answer 25 percent of the questions on the other test. The results of the valid
inventory showed L.B. was “similar to people who have severe interpersonal
problems, who . . . may disregard [the] opinions and needs of others.” Dr.
Shepel diagnosed L.B. with “personality disorder with narcissistic, antisocial,
histrionic, and paranoid features,” just as Dr. O’Leary had in 2015. She noted
that typically, people with a diagnosed personality disorder like L.B.’s are highly
9 No. 82421-0-I (Consol. with No. 82422-8-I)/10
defensive, resistant to change, and blame others for their circumstances, so they
“attend services superficially.”13
L.B. continued the same mental health counseling and DV treatment after
Dr. Shepel issued her report. While Valley Cities mental health counselor Ross
reported L.B. was making improvements, La Esperanza level 3 DV counselor
Saritama reported he had little accountability and was resistant to change.
L.B. also continued to have phone-only visits with E.E.B. and U.M.R.B.
But by October 2020, both children had such significant behavioral issues after
their visits with L.B. that their court-appointed special advocate (CASA), Megan
Gee, sought to suspend visits. The trial court granted the CASA’s motion and
suspended visits in November 2020.
2021 Termination Hearing
In January 2021, the trial court held a six-day termination fact-finding
hearing. The court heard testimony from L.B., Valley Cities and La Esperanza
service providers Ross and Saritama, visitation supervisors, one of the children’s
therapists, social worker McGee, CASA Gee, and Dr. Shepel.
At the end of the hearing, the court granted the Department’s petition for
termination and entered an order, findings of fact, and conclusions of law. The
court found that the Department offered and L.B. participated in express and
13 The parenting inventory showed L.B. had “high risk scores” when it came to “parental empathy towards children’s needs,” developmental expectations of “what children are capable of and what to expect from children’s specific ages,” and “putting [the] interest of the children above [his] own” interest. Dr. Shepel explained that the parenting inventory was a standardized tool used to assess parenting and child rearing attitude, “but it doesn’t have validity scales” like the other tests she administered, so it has limitations. Still, Dr. Shepel believed the parenting inventory is a useful tool when used along with other assessments, behavioral observations, history, and collateral information.
10 No. 82421-0-I (Consol. with No. 82422-8-I)/11
understandable services, but L.B. “failed to substantially improve his parental
deficiencies in the 33 months following the entry of the dispositional
[dependency] order[s]” in April 2018. It determined that L.B. was unfit to parent
the children and that there was little likelihood he would remedy conditions so
that the Department could return the children to his care in the near future.
Finally, the court found that continuation of the parent-child relationship
diminished the children’s prospects for early integration into a stable and
permanent home,14 and that termination of L.B.’s parental rights was in the best
interest of the children.
L.B. appeals.
ANALYSIS
L.B. argues that substantial evidence does not support the trial court’s
finding that the Department “expressly and understandably” offered him services
necessary to correct his parental deficiencies under RCW 13.34.180(1)(d). He
also argues that the Department failed to tailor services to his individual needs.
We disagree.15
14 Both children were “thriving” and comfortably living in pre-adoptive homes with half siblings. 15 L.B. also contends that because the Department did not adequately tailor services to
his needs, the court prematurely determined that he could not remedy his parental deficiencies in the near future under RCW 13.34.180(1)(e) and that termination was in the children’s best interest under RCW 13.34.190(1)(b). Because we conclude the trial court did not err by determining that the Department understandably offered L.B. necessary services tailored to his needs, it was not premature for the court to consider whether L.B. could remedy his parental deficiencies in the near future and whether termination was in the children’s best interest. Likewise, CASA Gee filed a response brief on appeal, arguing that termination was in the best interest of the children. L.B. objects to us considering the brief. While the CASA is not a party on appeal, we have broad discretion to accept briefing under RAP 10.1(h). But because the best interest of the children is not the dispositive issue on appeal, the brief does little to facilitate a decision on the merits. As a result, we decline to consider the CASA’s brief.
11 No. 82421-0-I (Consol. with No. 82422-8-I)/12
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). For a trial court to terminate parental rights, the
Department must first prove the six elements of RCW 13.34.180(1)16 by clear,
cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). After proving all six
elements of RCW 13.34.180(1) clearly and convincingly, the Department must
show by a preponderance of the evidence that termination is in the child’s best
interest. In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75
(2016); RCW 13.34.190(1)(b).
In reviewing a trial court’s decision to terminate parental rights, we are
limited to assessing whether substantial evidence supports the trial court’s
findings. In re Parental Rights to D.H., 195 Wn.2d 710, 718, 464 P.3d 215
(2020). “Substantial evidence” means “evidence in sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise.” In
re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009). “Because of
16RCW 13.34.180(1) requires the Department to prove: (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; (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 continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.
12 No. 82421-0-I (Consol. with No. 82422-8-I)/13
the highly fact-specific nature of termination proceedings, deference to the trial
court is ‘particularly important.’ ” K.M.M., 186 Wn.2d at 477 (quoting In re
Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)).
Under RCW 13.34.180(1)(d), the Department must show that it “expressly
and understandably” offered all “reasonably available” and “necessary” services
capable of correcting a parent’s deficiencies within the near future. The
Department must individually tailor such services to the needs of the parent. In
re Dependency of D.L.B., 188 Wn. App. 905, 920, 355 P.3d 345 (2015), aff’d,
186 Wn.2d 103, 376 P.3d 1099 (2016).
When the Department has reason to believe that a parent may have an
intellectual disability, it must make reasonable efforts to learn the extent of the
disability and how the disability could interfere with the parent’s ability to
understand and benefit from the Department’s offer of services. In re
Termination of Parental Rights to M.A.S.C., 197 Wn.2d 685, 689, 486 P.3d 886
(2021). If the parent has an intellectual disability, the Department “must then
tailor its offer of services in accordance with current professional guidelines to
ensure that the offer is reasonably understandable to the parent.” M.A.S.C., 197
Wn.2d at 689.
L.B. argues that the Department had reason to suspect he had an
intellectual disability, but it failed to make reasonable efforts to learn the extent of
his disability so that it could offer him services expressly and understandably. He
likens his case to M.A.S.C.
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In M.A.S.C., the Department removed J.C.’s infant son from her care
because of suspected neglect. M.A.S.C., 197 Wn.2d at 689-90. From the
outset, the Department had several contacts with J.C. that raised concerns about
her “ ‘lack of cognitive skills to follow through with basic parenting education and
the infant’s global developmental needs.’ ” M.A.S.C., 197 Wn.2d at 690. And the
Department knew that previous contacts between J.C. and Oregon child welfare
authorities suggested that J.C. had “ ‘impaired fac[u]lties.’ ” M.A.S.C., 197 Wn.2d
at 690.17 Yet the Department never tried to understand the extent of J.C.’s
abilities and limitations. While it recommended J.C. participate in an intellectual
disability evaluation, it never obtained a clinical diagnosis or other information
about the extent of J.C.’s disability because J.C. did not “ ‘follow through’ ” on the
social worker’s recommendation for “ ‘a sustained amount of time.’ ” M.A.S.C.,
197 Wn.2d at 701. And while J.C. completed a diagnostic assessment, it
assessed only J.C.’s psychiatric and mental health issues, not her intellectual
disabilities.18 M.A.S.C., 197 Wn.2d at 701.
Despite cues that J.C. may have an intellectual disability, the Department
in M.A.S.C. sought and obtained an order of dependency that had a long and
complex list of 22 “intentions” and services that J.C. had to complete before
reunification with her son. 197 Wn.2d at 692-93. Nothing in the dependency
17 Alteration in original. 18 The M.A.S.C. court defined “intellectual disability” to mean “a condition that begins
before age 18, persists throughout the person’s life, and causes ‘significant limitations in intellectual functioning and adaptive behavior as expressed in conceptual, social and practical adaptive skills.’ ” 197 Wn.2d at 688 n.2 (quoting THE ARC, PARENTS WITH INTELLECTUAL DISABILITIES (Mar. 1, 2011), https://thearc.org/wp-content/uploads/forchapters/Parents%20 with%20I_DD.pdf).
14 No. 82421-0-I (Consol. with No. 82422-8-I)/15
order explained which items were “services” and which items were “intentions,”
and there was “no evidence indicating whether or how the difference between
intentions and services was explained to J.C.” M.A.S.C., 197 Wn.2d at 693.
When J.C. struggled to meet the requirements, the Department sought to
terminate her parental rights. M.A.S.C., 197 Wn.2d at 696. The trial court
ultimately terminated J.C.’s parental rights, finding that the list in the dependency
order “expressly and understandably” offered J.C. services. M.A.S.C., 197
Wn.2d at 696.
Our Supreme Court reversed. M.A.S.C., 197 Wn.2d at 689. It concluded
that the Department did not satisfy RCW 13.34.180(1)(d) because it had reason
to believe J.C. had an intellectual disability, yet failed to make reasonable efforts
to learn the extent of her disability and how the disability could interfere with her
ability to understand and benefit from the Department’s offer of services.
M.A.S.C., 197 Wn.2d at 688-89.
Unlike in M.A.S.C., the record here shows that the Department assessed
L.B.’s intellectual capacity three times, and none of the assessments revealed an
intellectual disability.
In 2015, Dr. O’Leary determined that L.B.’s intellectual ability was within
the normal range. Though he received some special education in high school,
L.B. attended and graduated from a trade school. And while L.B.’s predictive IQ
score of 68 to 78 placed L.B. in the borderline range, Dr. O’Leary observed that
those “scores appear to . . . under[ ]estimate” L.B.’s “true intellectual ability”
based on L.B.’s clinical presentation. He concluded that L.B. “appeared to
15 No. 82421-0-I (Consol. with No. 82422-8-I)/16
function within normal limits in terms of his problem-solving and intellectual
ability.” Dr. O’Leary did not diagnose L.B. as intellectually disabled.
Dr. Washburn also administered intellectual testing in 2018. While Dr.
Washburn’s report is not in the record, other evidence shows Dr. Washburn’s
testing placed L.B.’s intellectual abilities in the low average range. Dr. Washburn
did not identify or diagnose any intellectual disability.
And Dr. Shepel’s 2020 assessment tracked the evaluations of Dr. O’Leary
and Dr. Washburn. Dr. Shepel’s testing showed L.B. had borderline intellectual
functioning. L.B.’s working memory and processing speed were borderline and
his verbal abilities were low average, but he particularly struggled with spelling.
Still, based on clinical impressions, Dr. Shepel believed L.B.’s “true intellectual
functioning was in the low average range because he was very impulsive and
very distractible and inconsistent.” L.B. made multiple mistakes on the tests, “not
because he didn’t have the knowledge but because he was rushing through and
not paying attention to details.” Dr. Shepel reminded L.B. to slow down multiple
times because “when he slowed down, he was able to understand the sentencing
correctly.” Dr. Shepel identified a specific spelling learning disorder but no
We conclude that unlike in M.A.S.C., the Department here made
reasonable efforts to determine whether L.B. had an intellectual disability that
could interfere with his ability to understand and benefit from offered services.
L.B. underwent three independent psychological evaluations with testing for
intellectual capacity. Each assessment determined he has no intellectual
16 No. 82421-0-I (Consol. with No. 82422-8-I)/17
disability, and none raised concerns about L.B.’s ability to understand and benefit
from the Department’s offered services. Further, the record shows that L.B. often
communicated with his social worker and readily understood both the
Department’s offer of services and how to access them. Indeed, he enrolled in
each of the recommended services, successfully completed most of them,19 and
sought and completed additional services on his own.
In the alternative, L.B. argues, “[T]here is no evidence the Department
actually provided services tailored” to meet the academic challenges identified by
Dr. Shepel. Specifically, based on L.B.’s “deficiencies in academic
achievement,” Dr. Shepel testified that L.B. might not benefit from group-format
treatment when “there is a lot of reading material that . . . requires higher than [a]
sixth grade level of reading comprehension.” As a result, she recommended L.B.
receive services in a one-on-one format.20
L.B. contends the Department failed to tailor his services adequately
because BIPP in Houston offered only group-format DV treatment. While it is
true that L.B.’s 18 weeks at BIPP was not one-on-one, he ignores that he also
received at least 24 weeks of individual DV treatment at La Esperanza.
Treatment provider Saritama testified that while she typically teaches groups, she
19 L.B. accessed and completed all services except the full 52 weeks of level 3 DV treatment. 20L.B. suggests the Department should have investigated further to determine the extent of any cognitive disability. But the academic issues identified resulted from extensive testing three times by three different qualified professionals, and no one diagnosed L.B. as intellectually disabled. Instead, the evaluators recognized L.B.’s academic challenges, and then recommended services that would adequately compensate for his needs. Specifically, Dr. Washburn and Dr. Shepel tailored their recommendations to individual treatment sessions. While Dr. O’Leary did not recommend one-on-one services in 2015, we note that L.B. was still able to complete all necessary services successfully, leading to the dismissal of the 2015 dependency of E.E.B.
17 No. 82421-0-I (Consol. with No. 82422-8-I)/18
always met with L.B. individually.21 He also received over a year of individual
mental health counselling at Valley Cities. His therapist Ross testified that she
provided L.B. one-on-one mental health therapy and cognitive behavioral
therapy. The record shows that L.B. received adequately tailored services to
accommodate his academic deficiencies.22
Still, L.B. argues that his inability to gain insight from his services or
improve his parenting deficiencies must flow from an undiagnosed intellectual
disability or a failure to tailor services adequately. But L.B.’s argument discounts
the role his personality disorder plays in his amenability to treatment.
Dr. O’Leary diagnosed L.B. with “Unspecified Personality Disorder with
antisocial, narcissistic and paranoid elements” and an “[a]cademic or educational
problem.” Based on his diagnoses, Dr. O’Leary concluded that L.B. “does not
appear to be amenable to treatment.”
Dr. Shepel also diagnosed L.B. with “personality disorder with narcissistic,
antisocial, histrionic, and paranoid features.” Dr. Shepel noted that people “with
this severe personality disorder” are typically “highly resistant to change” and
blame others for their circumstances, so they “attend services superficially.” She
described people with L.B.’s personality profile as having “very poor
psychological insight” and an “inability to understand how one’s behavior affects
21The record also shows that L.B. attended 12 weeks of DV treatment at STOP. Though the record is unclear about the format of that treatment, L.B. completed that program, and he makes no argument that he received inadequately tailored treatment at STOP. 22 L.B. argues that the Department did not adequately tailor those services because
neither Saritama nor Ross testified that they tailored their treatment and instruction to meet his “particular intellectual disability” needs. But nothing in Dr. Shepel’s evaluation recommended tailoring beyond one-on-one services to aid L.B.’s deficiencies in academic achievement.
18 No. 82421-0-I (Consol. with No. 82422-8-I)/19
others,” they are “resistant to change,” and they have a “very high level of denial”
and “defensiveness.”
L.B. acknowledges that his personality disorder may have contributed to
his lack of insight and accountability but argues that it is “equally plausible that
his intellectual disability hamstrung his ability to make progress.” But it is not our
role to weigh and evaluate conflicting or “plausible” evidence. See Prostov v.
Dep’t of Licensing, 186 Wn. App. 795, 819, 349 P.3d 874 (2015). When the trial
court has weighed the evidence, our review is limited to determining whether
substantial evidence supports the trial court’s findings. Prostov, 186 Wn. App. at
819. And here, substantial evidence supports the trial court’s finding that L.B.’s
inability to gain insight from his services is attributable to his personality disorder.
We conclude substantial evidence supports the trial court’s determination
that the Department offered express and understandable services tailored to
L.B.’s individual needs, and affirm the order terminating L.B.’s parental rights to
E.E.B. and U.M.R.B.
WE CONCUR: