IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of H.G.N-C., No. 85211-6-I
Minor Child. DIVISION ONE
UNPUBLISHED OPINION
COBURN, J. — M.C. appeals from an order terminating her parental rights
to her daughter, H.G.N-C. She challenges the trial court’s finding that she was
currently unfit to parent. Because substantial evidence supports that finding, we
affirm.
FACTS 1
M.C. is the mother of H.G.N-C., who was born in December 2018. 2 She
has two older children who are in their father’s care and were not parties to the
proceedings below. M.C. has struggled with addiction since she was 12 years
old.
1 The substantive facts in this section are drawn from M.C.’s testimony and the trial court’s unchallenged findings, which are verities on appeal. See In re Dependency of A.N.C., 24 Wn. App. 2d 408, 416, 520 P.3d 500 (2022) (unchallenged findings are verities on appeal), review denied, 1 Wn.3d 1012 (2023). 2 H.G.N-C.’s father, whose parental rights were also terminated in the proceedings below, is not a party to this appeal. No. 85211-6-I/2
On January 27, 2021, just after H.G.N-C. turned two, M.C. left H.G.N-C. in
the care of a drug-involved woman that M.C. had known for “at the most two
weeks” while M.C. went to a casino. After a neighbor reported hearing an infant
crying for an excessive amount of time, law enforcement responded to M.C.’s
apartment and found H.G.N-C. locked into a restraint device and the woman who
was supposed to be looking after her “utterly unresponsive” with a crack pipe
nearby. H.G.N-C. was taken into protective custody due to M.C.’s substance
abuse issues, mental health, and lack of parenting skills. She has remained in
out-of-home care since.
On August 18, 2021, the trial court found H.G.N-C. dependent as to M.C.
under RCW 13.34.030(6)(c) (no parent, guardian, or custodian capable of
adequately caring for the child, such that the child is in circumstances which
constitute a danger of substantial damage to the child’s psychological or physical
development). The court ordered M.C. to complete a drug and alcohol
evaluation, random urinalysis (UA) testing, and a neuropsychological
assessment, and to follow all recommendations. Sarah Potter, a Department of
Children, Youth and Families (Department) social services specialist, was
assigned to M.C.’s case.
In December 2021, Dr. Dana Harmon completed a neuropsychological
assessment of M.C. He recommended that M.C. attend intensive inpatient drug
and alcohol treatment, parent coaching, and mental health services focused on
intensive therapy interventions. M.C. completed parent coaching in June 2022.
Although she attended counseling between November 2021 and February 2022,
2 No. 85211-6-I/3
she disengaged with her counselor because she did not like what the counselor
had to say. She later began therapy with Catharine Peppard.
In the meantime, M.C. completed drug and alcohol evaluations with three
service providers, each of which recommended intensive outpatient treatment
(IOP). M.C. did not complete IOP following any of these evaluations. In April
2022, M.C. completed IOP at Lifeline Connections. After completing IOP, M.C.
disclosed to Crystal Lockhart, her substance abuse counselor at Lifeline
Connections, that she had relapsed on methamphetamine. Lockhart then, like
Dr. Harmon, recommended intensive inpatient treatment, but M.C. refused to
engage in that treatment.
In April 2022, the Department petitioned to terminate M.C.’s parental
rights, alleging that M.C.’s parenting deficiencies included mental health issues,
substance abuse issues, and lack of parenting skills. A termination trial took
place in late March 2023, by which time H.G.N-C. was four years old. The court
heard testimony from multiple witnesses, including M.C., Potter, Lockhart,
Peppard, Dr. Harmon, a visitation supervisor, and the court appointed special
advocate (CASA).
At the conclusion of trial, the court granted the Department’s termination
petition, finding that the Department had satisfied its burden to prove the
statutory prerequisites to termination and that “[M.C.]’s ongoing substance abuse
and mental health issues render her unfit to parent.” M.C. appeals.
DISCUSSION
M.C. argues that insufficient evidence supports the trial court’s finding that
3 No. 85211-6-I/4
she was currently unfit to parent, and thus, the trial court erred by terminating her
parental rights. We disagree.
Standard of Review and Legal Standards
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 the parent-child relationship, the Department
must prove six statutory elements by clear, cogent, and convincing evidence.
RCW 13.34.180(1), .190(a)(i). Due process then requires the Department to
prove, also by clear, cogent, and convincing evidence, that the parent is currently
unfit. In re Welfare of A.B., 168 Wn.2d 908, 920, 925, 232 P.3d 1104 (2010).
Unfitness means that “the existing parental deficiencies, or other conditions,
prevent the parent from providing for the child’s basic health, welfare, and
safety.” In re Parental Rights to K.M.M., 186 Wn.2d 466, 493, 379 P.3d 75
(2016). If the Department makes these showings, the court may order
termination if the Department also establishes by a preponderance of the
evidence that termination is in the child’s best interests. 3 RCW 13.34.190(1)(b).
On review, we ask only whether the trial court’s findings of fact are
supported by substantial evidence and whether those findings support the
conclusions of law. In re Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159
3 M.C. assigns error not only to the trial court’s current unfitness finding but also to its findings on certain other prerequisites to termination. However, she does not support the other assignments of error with argument and authority. Accordingly, we consider only her challenge to the current unfitness finding. See Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69 P.3d 895 (2003) (“It is well settled that a party’s failure to assign error to or provide argument and citation to authority in support of an assignment of error, as required under RAP 10.3, precludes appellate consideration of an alleged error.”).
4 No. 85211-6-I/5
(1990). “We review findings of fact under a substantial evidence standard.” In re
Dependency of A.M.F., 23 Wn. App. 2d 135, 141, 514 P.3d 755 (2022), aff’d, 1
Wn.3d 407 (2023). “Where the fact at issue must be shown by clear, cogent, and
convincing evidence, substantial evidence must demonstrate that fact is ‘highly
probable.’” Id. (internal quotation marks omitted) (quoting In re Welfare of Sego,
82 Wn.2d 736, 739, 513 P.2d 831 (1973)). Nevertheless, we “defer to the trial
court’s advantage in viewing the proceedings and do not reweigh evidence or
determine the credibility of the witnesses.” Id. Additionally, “we view the
evidence and reasonable inferences drawn from it in the light most favorable to
the prevailing party.” Id.
Analysis
Here, substantial evidence supports the trial court’s finding that “[M.C.]’s
ongoing substance abuse and mental health issues render her unfit to parent
[H.G.N-C.].” 4
Dr. Harmon diagnosed M.C. with posttraumatic stress disorder (PTSD),
anxiety, recurrent and severe major depressive disorder, and severe substance
use disorders (cannabis, alcohol, and methamphetamine). And while Potter
testified that one of H.G.N-C.’s basic needs was stability, and even M.C.
acknowledged this was so, Dr. Harmon testified that M.C.’s substance abuse had
been a “destabilizing, destructive thing in her life.” He testified based on
4 M.C. asserts that the trial court also based its unfitness finding on a lack of parenting skills. But the record citation she provides does not support that assertion, and the trial court expressly referred only to M.C.’s ongoing substance abuse and mental health issues in relation to its unfitness finding. Accordingly, we need not and do not reach M.C.’s arguments that the trial court erred by relying on a lack of parenting skills to find unfitness.
5 No. 85211-6-I/6
information he got from M.C. that her adult relationships “all were relationships
with people that were also drug-involved and often violent.” He also reported that
M.C. “presents as depressed, anxious, emotionally brittle, and overwhelmed” and
that her symptoms included “emotional reactivity, use of isolation and/or drug
abuse as avoidant coping mechanisms, impulsive, often self-destructive
behavior, and avoidant behavior.” Dr. Harmon testified that M.C. had
very strong indications of emotional distress . . . ; despair, upset fearfulness. There were strong indications of thought dysfunction as far as confusion, having difficulty keeping things straight for herself. Coupled with a lot of persecutory ideas that people were after her, even to the point of having a sense that people are following her. A real elevated level of confusion and agitation as far as her thinking.
He noted that M.C. arrived late for her initial interview with him and ended it early
because it “just got too upsetting for her,” and although she would look at him at
the beginning of the interviews, “by the end of each interview, she had turned
around completely in her chair.” He remarked that “even talking was too
overwhelming” for M.C. He also noted that M.C. “showed up really late” for the
parent-child observation portion of Dr. Harmon’s assessment, “which spoke to
some disorganization.” And while he was impressed by the emotional bond
between M.C. and H.G.N-C. and got a good impression of M.C.’s basic parenting
skills, he cautioned that “nothing was going wrong” and “[i]t wasn’t a time where
[M.C.] was trying to deal with something else at the same time.”
Dr. Harmon also testified that M.C. had a “very elevated score” on the
Child Abuse Potential Inventory, a screening questionnaire about personality
traits associated with a risk for child abuse. Dr. Harmon found this notable in part
6 No. 85211-6-I/7
because parents are generally “cautious and protective” and will “put a best spin
on their behavior” during the evaluation. He testified that “even with that,” M.C.’s
overall score was “well above the cutoff of risk for child abuse,” which he
explained in M.C.’s case “seems to reflect [M.C.]’s emotional distress and risk for
neglectful, inappropriate behavior.” Dr. Harmon, whose assessment included
extensive interviews with M.C., various psychological testing, and review of
records of M.C.’s prior involvement with the Department, concluded that M.C.’s
substance abuse and mental health issues had played a role in her neglect of
H.G.N-C., including during the January 2021 incident that led to her removal, and
that M.C. was “simply not stable enough at this time to manage the demands of
parenting on her own.” And he opined that as of January 2022, when he
completed his evaluation, M.C. was not able to meet H.G.N-C.’s needs. In short,
Dr. Harmon’s evaluation and opinion testimony constituted substantial evidence
that, as of January 2022, M.C. was unfit to parent H.G.N-C. due to her substance
abuse and mental health issues. Cf. In re Marriage of Harrington, 85 Wn. App.
613, 637, 935 P.2d 1357 (1997) (“The factfinder has broad latitude in determining
the weight to give expert opinion.”).
M.C. does not argue that Dr. Harmon’s opinion was not probative of her
unfitness as of January 2022 but asserts his opinion was outdated by the time of
trial. However, the trial court found that M.C.’s progress addressing both her
substance abuse and her mental health issues was both “insignificant and
insufficient” and that “[t]he evidence in this case tracks with Dr. Harmon’s
conclusions.” These findings are supported by substantial evidence.
7 No. 85211-6-I/8
First, contrary to M.C.’s argument otherwise, the record supports the trial
court’s finding that M.C.’s substance abuse remained ongoing and significant at
the time of trial. It is a verity on appeal that M.C. has struggled with addiction
since she was 12 years old. M.C. herself testified that she had “done a lot of
drugs” in her life, including cannabis, cocaine, and methamphetamine, and that
her longest period of sobriety during H.G.N-C.’s life was 18 months, when
H.G.N-C. was first born. Dr. Harmon testified that during his assessment, M.C.
reported having been to inpatient treatment nine times and to detox treatment a
number of times, and that these efforts were unsuccessful. He also testified that
M.C. reported using cannabis every day. Between February 2021 and April
2022, multiple service providers evaluated M.C. and recommended IOP, which
one witness testified would only be recommended for someone who meets the
criteria for a substance use disorder and is currently using. Meanwhile, Dr.
Harmon diagnosed M.C. with, among other things, “Stimulant Use Disorder
(meth), severe,” and “Cannabis Use Disorder, severe.”
Additionally, Dr. Harmon opined that “the usual approaches” to treatment
were unlikely to help M.C. maintain sobriety over time, and he recommended at
least six months of intensive inpatient treatment. But M.C. did not engage in
intensive inpatient treatment. Although she completed IOP treatment in June
2022, M.C. testified that she relapsed on methamphetamine within six or seven
months of trial, and even though her substance abuse counselor then
recommended intensive inpatient treatment, she refused it. M.C. also testified
she had used cannabis within a month of trial. Meanwhile, although Potter
8 No. 85211-6-I/9
testified that she referred M.C. for random UAs multiple times a month, including
as recently as a month before trial, M.C. testified that she completed only four or
five, and Potter recalled that the most recent of those was in fall of 2021. This
was despite the random UAs being expressly and understandably offered,
multiple service letters stating that missed UAs would be treated as positive UAs,
and reminders from Potter of the importance of M.C. documenting her sobriety.
Potter testified that she also offered to meet M.C. for oral swabs on multiple
occasions, to no avail. And although the court ordered M.C. to complete a hair
follicle test, M.C. testified that she was not willing to provide the amount of hair
the laboratory requested.
In short, there was evidence that M.C. had a lengthy history of substance
abuse that was resistant to traditional treatment modalities, that M.C. did not
engage in the intensive treatment necessary to address her abuse, and that
despite understanding the stakes, M.C. still refused to provide random UAs and
other testing. While M.C. asserts that the trial court improperly shifted the burden
of proof by relying on the lack of UAs and other testing as evidence of M.C.’s
ongoing substance use, 5 the court reasonably inferred from M.C.’s history, her
refusals to test, the absence of necessary treatment, and M.C.’s own testimony
about recent use, that M.C.’s substance use at the time of trial was consistent
5 M.C. relies on the concurrence in In re Dependency of A.L.K., 196 Wn.2d 686, 478 P.3d 63 (2020), to support this assertion. That concurrence distinguished services intended to remedy parental deficiencies from requirements (like random UAs) that are actually assessments of the parent. Id. at 706, 708 (Montoya-Lewis, J., concurring). It does not support M.C.’s assertion. To the contrary, even it recognized that assessments like UAs provide the Department with information “to determine whether a family should remain intact.” Id. at 708.
9 No. 85211-6-I/10
with her historical use and remained significant. 6
There was also substantial evidence to support the trial court’s
determination that M.C. had not made any significant progress with regard to her
mental health issues. Dr. Harmon opined that “[i]f [M.C.] is going to move past
her problems and become more stable, she will need intensive therapy
interventions with a focus on her trauma and emotional patterns.” But M.C. did
not engage in those intensive therapy interventions. She points out that at the
time of trial, she was attending therapy with Peppard. But Peppard testified that
she provided “client-centered” therapy and allowed M.C. to lead their sessions.
The trial court found that “[t]he counseling provided by Ms. Peppard is not of a
kind that the court can conclude is helpful in addressing the mother’s mental
health issues,” and this finding is supported by substantial evidence: Dr. Harmon
testified that M.C. needed “a more directive perhaps at some points confrontive
approach than a client-led approach.” He explained that client-led therapy is
typically for “people who are dealing with minor issues and fairly functional . . . as
opposed to working through issues that have been crippling them,” and testified
that he “would be surprised” if client-led therapy was sufficient for M.C. “to make
positive changes over time.” To this end, even Peppard testified that M.C.
tended to focus on the court case and was resistant to Peppard’s attempts to
redirect her toward other issues.
Furthermore, Potter testified that M.C.’s impulsiveness and lack of
6 Indeed, holding that the trial court was not permitted to draw such an inference would create a perverse incentive for a parent not to comply with UA and other assessment requirements.
10 No. 85211-6-I/11
judgment that led to H.G.N-C.’s initial removal were still relevant two years later.
She testified that meetings with M.C. were often shortened or interrupted
because M.C. would become frustrated and end the conversation “when she is
done.” Similarly, M.C. disengaged with a mental health counselor in February
2022 because she “did not like what the counselor had to say.” She also
stopped going to a substance abuse support group because she “didn’t find any
desire . . . to be there.” The visitation supervisor testified that she often had to
intervene because of things M.C. would say to H.G.N-C., including asking
H.G.N-C. “quite often” about whether she was being abused, and talking to
H.G.N-C. about the dependency case. Just a few months before trial, M.C. told
H.G.N-C. during a visit that she might not see her again, which upset H.G.N-C.
And a month before trial, M.C. left a virtual shared planning meeting after 10
minutes.
Additionally, Dr. Harmon testified that M.C. could not make reasonable
progress with her mental health issues until she could move past her persecutory
ideas about “what was being done to her and her children.” Yet the record
reflects that throughout the proceeding and even up through trial, M.C. fixated on
her claim that H.G.N-C. was being sexually and physically abused in the
Department’s custody, even though those claims were investigated and
determined to be unfounded. M.C. cited those claims to justify her refusal to
provide court-ordered releases of information to the Department so that it could
assess her progress, explaining, “I don’t trust anybody that’s not in support of
keeping my child safe while in protective custody.” She also cited those claims to
11 No. 85211-6-I/12
explain why she did not trust Potter and had not had a one-on-one with her for a
long time, stating, “I am having a really hard time communicating with people that
are protecting abuse for my child.” In other words, M.C.’s persecutory ideas
prevented her from taking the necessary steps toward what even she believed
was in H.G.N-C.’s best interests, i.e., reunification. At the same time, M.C.
attributed her mental health issues to her child being withheld from her, and she
testified that she “really d[id]n’t care” what Dr. Harmon recommended because
“his evaluation was pretty far off and farfetched on all the things,” thus indicating
a lack of insight. Cf. In re Welfare of H.S., 94 Wn. App. 511, 528, 973 P.2d 474
(1999) (a parent’s lack of insight into their condition may be considered in
determining unfitness). Even Peppard testified that at the time of trial, M.C. was
only “becoming motivated” to address her issues.
In short, there was substantial evidence, in the form of Dr. Harmon’s
assessment, that M.C.’s substance abuse and mental health issues rendered her
unfit to parent H.G.N-C. at the time of his evaluation. There was also substantial
evidence that M.C.’s circumstances had not materially changed since that
evaluation. Accordingly, the trial court did not err by finding that M.C. remained
unfit to parent at the time of trial. Cf. In re Dependency of J.C., 130 Wn.2d 418,
428, 924 P.2d 21 (1996) (“[P]ast history is a factor that a court may consider in
weighing a parent’s current fitness.”).
M.C. disagrees and argues that reversal is required because the
Department failed to show that her deficiencies presented “an immediate or
severe risk” to H.G.N-C.’s safety. In support, she relies on In re Welfare of A.B.,
12 No. 85211-6-I/13
181 Wn. App. 45, 323 P.3d 1062 (2014). In A.B., the trial court terminated the
mother’s parental rights based on a finding that her cognitive impairments
“resulted in a lack of understanding of child development stages and difficulty
identifying certain subtle dangers.” 181 Wn. App. at 64 (emphasis added). We
held this was insufficient to establish unfitness, observing that “it is not highly
probable that [the child] will be harmed by [the mother]’s inability to recognize
subtle safety risks,” as distinct from “immediate or severe risk[s] to the child’s
safety.” Id. at 64-65.
M.C.’s reliance on A.B. is misplaced. While a parent’s failure to recognize
immediate or severe risks to her child’s safety is sufficient to show unfitness, A.B.
did not hold that it is necessary. Instead, as discussed, the standard is whether
“the existing parental deficiencies, or other conditions, prevent the parent from
providing for the child’s basic health, welfare, and safety.” K.M.M., 186 Wn.2d at
493. To this end, in A.B., the child was removed from the mother’s care due to
the risk posed by the mother’s partner’s abusive behavior, and in reversing, we
observed that the mother removed this risk by, among other things, ending that
relationship and completing all of her domestic violence-related services. Id. at
49, 62. Here, by contrast, the evidence supports the trial court’s finding that M.C.
failed to remedy the mental health and long-standing substance abuse issues
that precipitated H.G.N-C.’s initial removal. A.B. does not control.
In her briefs, M.C. also cites to In re Dependency of T.L.G., 126 Wn. App.
181, 108 P.3d 156 (2005), and In re Welfare of C.S., 168 Wn.2d 51, 225 P.3d
953 (2010), for the proposition that mental illness and past substance abuse
13 No. 85211-6-I/14
issues alone do not render a parent unfit. This is true. But M.C.’s mental health
and past substance abuse were not the sole bases for the trial court’s unfitness
finding. Again, the trial court found M.C. unfit because of her failure to remedy
the issues that Dr. Harmon opined would place H.G.N-C. at risk of neglect. As
the trial court put it in its oral ruling, “If in the future [M.C.] . . . were still making all
of the necessary judgments and decisions and caring, or not, for her child
according to the dictates of her illnesses, [H.G.N-C.] would be in a very
precarious, even dangerous, situation,” and it was not satisfied that “she would
be cared for consistently and safely.” Furthermore, unlike in C.S., where the
mother successfully completed substance abuse treatment and remained sober
as verified by twice-a-week UAs, 168 Wn.2d at 54, and T.L.G., where the parents
showed willingness to address their mental health but were offered no mental
health services, 126 Wn. App. at 205-06, here, the record shows M.C. did not
improve despite services having been expressly and understandably offered and
provided. T.L.G. and C.S. do not require reversal.
Finally, M.C. points to the visitation supervisor’s testimony about the warm
relationship and positive interactions between M.C. and H.G.N-C. and M.C.’s
own testimony that she had clothes and housing for H.G.N-C., understood
H.G.N-C.’s needs, and intended to enroll her in early schooling. M.C. argues that
such evidence affirmatively demonstrated that she was not currently unfit. But
the trial court gave this evidence little weight because, as it explained in its oral
ruling, it demonstrated only what M.C. could do “in a controlled environment.”
14 No. 85211-6-I/15
M.C. essentially asks us to reweigh this evidence, which we will not do.
We affirm.
WE CONCUR: