2819 JAN llr AH 8= 33
iN THE COURT OF APPEALS OF THE STATE OF WASH|NGTON
in the lVlatter of the Dependency of No. 78195-2-|
S.R.P.VV. (dob: 03/14/2012); K.R.T.W. (Consolidated With No. 78196-1-| and (dob: 02/17/2011); and K.R.-K.W. (dob: No. 78197-9-¥)
02/28/2013),
Minor Children.
DfoS!ON ONE
STATE OF WASH|NGTON, DEPARTMENT OF SOC!AL AND HEALTH SERVlCES,
Respondent, UNPUBL|SHE€) OPtN|ON v. SHARRAH WOOD, FlLEDl January 14, 2019
Appellant.
LEACH, J. -~ Sharrah Wood appeals the termination other parental rights to three children. She claims that substantial evidence does not support the trial ccurt’s tinding that ali necessary services capable of remedying her parentat deficiencies Were offered or provided, that a neuropsychoiogical evaluation was not a necessary service, and that
termination of her oarental rights was in the best interests of the children. We disagree
and affirm
No. 78195-2_~|/2
f-'ACTS
Sharrah Wood is the mother ot three children ranging from seven to five years of age: K.R.T.W., S.R.P.W.1 and K.R.~K.W.1 The parental rights of the children’s fathers are not at issue in this appeal.2
in April 2015, Wood and her three children iost their housing due to flooding The family then reportedly began living in a van with Wood’s mother, Wood’s sister, and her sister’s two young children. When not living in the van, the family stayed on the floor of friends' houses Once notified, the Department of Socia| and Heaith Servioes3 (Departrnent) offered Wood voluntary services that included Famiiy Assessment Response (FAR) and Proiect SafeCare. Wood initially participated in these services, but she was unable to complete thern.
in December 2015, the Department received allegations that Wood’s children were continuing to be negiected and suffering from housing instability. On December 22, 2015, the Departrnent filed a dependency petition for each chiid based on Wood’s ai|eged laci< of supervision, chronic neglect mentai heatth issues, tacit of parenting skiiis, and iaci< of safe and stabie housing At the sheiter care hearing on December 30,
2015, the trial court removed the children from Wood’s care. They never returned to her
Cai'€.
1 Wood is also the mother to another child, K.W. i-ler parentai rights as to K.W. were previously terminated and are not at issue in this appeal.
2 The_ parentai rights of the fathers of S.R.P.W. and K.R.-K.VV. were previously terminatedl At the time of trial, the parental rights of the father of K.R.T.W. were sti|i intact.
3 As of July 1, 2018, the “Department of Chi|dren, Youth, and Famiiies" has
assumed the functions and duties of the Department of Sociai and Heaith Services. §§ RCW 43.216.906.
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|n April 2016, the Departrnent filed agreed dependency and disposition orders for each chiid. The Department identified Wood’s primary parenting deficiencies as mentai health issues, tack of parenting skills and lack of stable and suitable housing Throughout'the course of the dependency, the Department offered Wood multipie services designed to help remedy her parental deficiencies These services included a psychologicai evaluation with a parenting component, a mentai health assessment and individual counseling parenting ctasses, family preservation services case management, random urinalyses (UAs), a drug and aicohol evaluation, and Project Aware (domestic violence support group). Among other things the trial couri’s dependency orders required Wood to notify the Departrnent about any probierns in accessing services
At iater dependency review and permanency pianning hearingsl the triai court determined that Wood was either partially in compiiance or not in compliance with its orders and'that Wood was not making progress toward correcting her parentai deficiencies ln |Viarch 2037. the Departrnent filed a petition to terminate Wood’s parental rights to each chiid. The Department made the same allegations for each child and asserted that Wood “does not understand and is incapabie of providing for the child’s emotionai, physicai, mental, and developmentai needs [Wood] is incapabie of safety parenting the child."
The termination triat took piece over several days in January 2018. Atter hearing testimony from Wood, a Department social worker, a family preservation services
provider, two visitation supervisors K.R.-K.W.’s counselor, a chemicai dependency
No. 78195-2-:/4
provider, a psychologists and considering more than 60 exhibits the trial court ordered termination of Wood’s parental rights as to ail three children. |n its termination order, the trial court made more than 200 findings of fact1 the majority of which Wood does not - dispute in this appeal. We discuss additional facts in the relevant sections below. STANDARD OF REV|EW
The Unlted States Constitution protects parental rights as a fundamental iiberty interest.“ To terminate a parent's rightsl the Department must satisfy a two-pronged test.5 The first prong requires proof of the six factors described in RCW 13.34.18€)(1).6 The Departrnent must prove these factors by clear, cogent, and convincing evidence7 Clear, cogentl and convincing evidence exists when the evidence shows that an ultimate fact in issue is highly proi)at)le.8 lf the Department satisfies the first prong the
court proceeds to the second prong, determining whether termination is in the child’s
4 Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
5 in re Dependengy__gf K.N.J., 171 Wn.2d 568, 576, 257 P.Bd 522 (2011).
6 RCW 13.34.180(1) requires the Department to prove (a) the-child has been found to be a dependent chiid; (b) the court has entered a dispositional order pursuant to RCW 13.34.130; (c) the child has been removed or wiil, 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) the services rendered under RCW ‘i3.34.136 have been expressiy 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) there is little likelihood that conditions wi|i be remedied so that the child can ice returned to the parent in the near future; and (f) continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent horne.
7 K.N.J., i71 Wn.2d at 576-77.
8 In re Dependencv of K.R.. 128 Wn.2d t29, 141, 904 P.2d 1132 (1995).
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best interests.9 The Department must prove this second prong by a preponderance of the evidence10
lf substantial evidence supports the trial court's findings we must affirm the termination order.11 “‘[E]vidence is substantial if, when viewed in the light most favorable to the party prevailing below, it is such that a rational trier of fact could find the fact in question by a preponderance of the evidence."'12 in this review, we do not make credibility determinations or weigh the evidence.13 “Deference paid to the triai iudge’s advantage in having the witnesses before him [or her] is particularly important in deprivation proceedings."14 We consider unchallenged findings as true on appeal.15
ANALYSlS
All Necessary and Avaifable Servlc:es16
Wood alleges that by not tailoring services to accommodate her cognitive and developmental disabilities,17 the Departrnent failed to prove that it offered or provided her all reasonably available, necessary services capable of correcting her parental
deficiencies within the foreseeable future. We disagree Though the Department must
9 RCW13.34.190(1)(b).
i° in re Welfare of A.B., 168 Wn.2d 908, 9111 232 P.3d 1104 (2010).
11 |n re l§_)_e_apendencv of`l°.R., 108 _Wn. App. 149, 161, 29 P.3d 1275 (2001).
12 ln re Dependencv of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003) (alteration in original) (quoting |n re Dependencv gf lVl.P., 76 Wn. App. 87, 90-91, 882 P.2d 1180 (1994)).
i3 |n re \Nelfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006).
14 |n re Welfgre of Aschaug, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
15 in re Dependencv of J.M.R., 160 Wn. App. 929, 939 n.5., 249 P.3d 193 (2011).
16 This issue encompasses Wood’s challenge to findings of fact 2.181, 2.182, 2.189, 2.208, and 2.209.
17 Wood has a reported iQ of 64. in school, she was enrolled in special education classes She did not complete high school and never earned a diploma or General Equivalency Degree (GED).
No. 78195-2'-|/6
prove it offered services specifically tailored to the individual parent’s needs18 lt is not obligated ton offer additional services that might have been helpful if the parent is unwilling or unable to make use of available services.19 The Department is not required to offer or provide services that would be futiie.20
l-“or the first time on appeal, Wood argues that the Department was statutorily obligated to consult with its Deveiopmental Disabilities Administration (DDA) to coordinate a tailored service plan for accommodating her specific cognitive limitations but it failed to do so.21 A review of the record shows that Wood did not raise this issue before the trial court. 1
Generaliy, we will not consider issues raised for the first time on appeal. However, a “party may raise for the first time on appeal a manifest error affecting a constitutional right."22 The appellant has the burden of demonstrating the basis for
reviewing an issue for the first time on appeal.23 Here, Wood fails to address RAP
13 ln re Dependencv gf D.A.. 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
19 in re Dependencv of Rarnquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988).
20 “‘VVhere the record establishes that the offer of services would be futile, the trial court can make a finding that the Department has offered all reasonable services”’ ln re Welfare of C.S., 168 Wn.2d 51, 56 n,2, 225 P.3d 953 (2010) (quoting ln re Welfare of l\/l.t'~t.H.l 145 Wn. App. 10, 25, i88 P.3d 510 (2008)).
21 _SE RCW 13.34.136(2)(b)(i)(B). Simiiarly, amicus curiae Disability Rights Washington argues that the Department failed to discharge its duty to consult with DDA as to the provision of tailored services to address Wood’s intellectual disabilities before terminating her parental rights
22 |n re Adoption of Nl.S.lVl.-P., 18l Wn. App. 301, 312, 325 P.3d 392 (2014) (citing RAP 2.5(a)(3)). “A manifest error requires a showing of actual prejudice." lVl.S.lVl.-P., 181 Wn. App. at 312. Actual preiudice requires a “p|ausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
23 State v. Grimes, 165 Wn. App. 172, 185~86, 267 P.3d 454 (2011).
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No, 78195-2'-|/7
2.5(a) and offers no basis for reviewing her DDA consultation claim for the first time on appeal. She has not met her burden.
Wood also argues that “[a]lthough the {)epartment provided several different services and although [she] engaged in some . . . her inability to [make] progress was due to the lack of accommodation of her disability." Contrarily, the record shows that Wood did not trust the Department and refused to work with the Department regardless of the type and number of services offered or provided
ln January 2016, the Department referred Wood to parenting classes Although Wood began to attend the classes she was terminated because of too many absences The Department re-referred Wood to parenting classes in Nlay 2016, but she did not ahend.
in lVlay 2016, the Department referred Wood to Dr. Walker for a psychological evaluation with a parenting component Wood attended the first session with Dr. Walker but began throwing chairs around in the waiting room and frightened staff with her behavior. lJr. Walker refused to work with Wood any further after this incident The Department then referred Wood to Dr. O’l_eary for the same evaluation, but she missed the appointment and Dr. O’i,eary refused to worl< with her. Finaliy, in December 2016, the Department referred Wood to Dr. Swing for a psychological evaluation and parenting component lt took Dr. Swing five months to get Wood in for an
appointment24 Wood did not work cooperatively with Dr. Swing and did not fully
24 The Department and Dr. Swing made numerous efforts to get Wood to Dr.
Swing’s office. Wood “failed to appear for some appointments refused others and did not respond to some other offered dates.”
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No. 78195-2-|/8
complete Dr. Swing’s evaluation. l\lotat)ly, Wood refused to take the Wechsler Adult intelligence Scale, 4th edition, which isan assessment tool Dr. Swing sought to use in assessing Wood’s current intellectual functioning
Also in May 2016, the Department referred Wood to Compass Heaith for a mental health assessment and counseling From Nlay to December 2016, she attended only six counseling sessions even though she was authorized to participate in up to four sessions a month At her last counseling session in December 2016, she was more than three hours late for the appointment and only sought help paying $2,000 in back rent and a $1,140 electric biil. Several months iater, the Department referred Wood to another mental health provider, but she declined and said that she would find her own counselor. She never did. The trial court determined that mental health treatment has been offered to Wood repeatedly, but she refused to go.
|n Septernber 2016, the Department referred Wood to Positive Parenting Program (Triple P) for parent coaching Because Wood’s visitation of her children was so inconsistent at that time, the Trip|e P provider could not work with Wood and, instead, recommended Family Preservation Services (FPS) as an appropriate service for parent coaching The Department referred Wood to an FPS provider in June 2017. i-lowever, Wood ultimately refused to work with the FPS provider despite the provider’s multiple attempts and methods of doing so. The FPS provider testified that during a telephone call, Wood stated “she was intentionally ignoring me because she was not comfortable working with me, knowing that . . . | would be sharing information with her
social worker.“
No. 73195-2`-i/9
in April 2017, Wood received referrals for random UAs and a drug and alcohol evaluation She never completed either service. |n Septernber 2017, Dr. Swing recommended that Wood receive job training through the Dlvision of Vocationa| Rehabilitatlon. The Department offered Wood a referra|, but she refused the service25
The Department and the FPS provider offered Wood housing information and resources At trial, howeverl Wood testified that she still did not have housing appropriate for reunification with her children and acknowledged that the children could not return to her care until she located appropriate housing
Wood repeatedly confirmed that she had “a lot of trust issues with the Department” and limited the extent to which she engaged or cooperated with service providers recommended by the Department She indicated an unwillingness to work with any service provider who would later report back to the Department The trial court’s unchallenged finding of fact 2.‘l91 establishes that Wood "has refused to work with providers who would provide information to the Department Although she testified on cross-examination by her own lawyer that she would engage in services such
testimony was weak and not credible."i26 The trial court also found, in pertinent part:
25 Dr. Swing also recommended other services for Wood, including a domestic violence support group, Parent~Child interaction Therapy (PC|T), and Eye l\/|ovement Desensitization and Reprocessing (ElVlDR) treatment The Department referred Wood to Project Aware for domestic violence`victims, and Wood attended the support group. l-lowever, the Department was unable to offer PC|T to Wood due to the inadequate amount of time she had with her children. Similarly, the Department was unable to offer Wood EMDR services due to lack of providers in her area and because Wood needed to engage in a minimum of six months of general counseling treatment prior to engaging in Ei\/|DR treatment.
26 Furthermore, Wood does not dispute finding of fact 2.204 (“The mother has a profound distrust of the Department The mother will not work towards fixing things.”) or
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2.‘¥81
To the degree that the mother suffers cognitive impairment, the
_Departrnent made efforts to accommodate the mother’s
2.182
impairments The mother was offered interactive parenting education The rnother received extra assistance from the social worker With making appointments making phone caiis, and making transportation arrangementsl The sociai worker tried very hard to expiain things to the mother in a variety of ways. 'i'he sociai worker ensured that information was provided both by herself as weil as by the mother’s Ofiice of Pubiic Defense sociai worker.
So ali of the court~ordered and necessary services capabie of correcting parental deficiencies within the foreseeabie future have been expressly and understandably offered or provided
2.189 Additionaiiy, it’s very clear beyond the required standard of ciear,
2.208
2.209
in view of this record, it is apparent that Wood’s iack of progress stems from her distrust of the Department and her failure to participate fuiiy in the services offered Substantiai evidence supports the trial court’s findings that the Department offered or provided all necessary and reasonably available services capable of correcting parental
deficiencies within the foreseeable future and that any additional service referrais wouid
be futiie.
cogent, and convincing evidence that making any future referrals of any kind including re-referring anything and everything that has aiready been done, is futiie.
Even if the rnother were to engage in services and achieve the best possibie progress, the near future for these children is outside of the two years that it would take to reunify these children with their mother.
There is iittie likelihood that conditions wi|i be remedied so that the child can be returned to the parents [sic] in the near future.
finding of fact 2.205 (“The mother’s assertions at trial that she wouid now be wiiiing to
work with the Department were weak, hoiiow1 and just not credibie.”).
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Wood relies on In re Pa_r_r_ental Ridhts to |.i\fi.-i\fi.27 as further support of her argument on this issue. Her reiiance on _i_._M_-_M_ is misplaced in Mm the mother promptly completed a court-ordered psychologicai evaiuation that showed she had significant cognitive impairment impacting her abiiity to succeed in services. There, the record demonstrated that additionai services would not be futile. in LM;M the mother
showed a wiiiingness to engage with the Department and
made notable efforts to engage in services and work with her providers She promptly obtained a mentai heaith evaiuation, a chemical dependency evaluation, and a parenting assessment as requested by the Departmentl Despite being homeless [the mother] kept in basic touch with her sociai workers She engaged in various types of recommended services including mental health therapy that was “pretty consist” over the course of two years [The mother] also regularly participated in visitations with her chiidren up until the very end of the dependency.ize]
Unlike the mother in M Wood did not promptly or diligently participate in many of the services offered, Wood utterly refused to participate in others Wood did not regularly participate in visits with her chitdren, and Wood did not make any progress in improving her parental deficiencies in more than two years Neuropsychoiogicai Evaii.r.ation29
'i'he trial court found that “i)r. Swing agreed that a neuropsychoiogicai evaluation could possibiy provide some useful information but no additionai service recommendations would fiow from it" and that "[a] neuropsycho|ogicai evaluation was
not a necessary service.” Wood argues that the trial court erred in entering these
27 196 Wn. App. 914, 385 P.3d 268 (2016).
23 l.M.-M., 196 Wn. App. at 925 (footnote and citation omitted).
29 This issue encompasses Wood’s challenge to findings of fact 2.177, 2.‘178, 2.182, and 2.197.
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findings as weii as related findings that ali necessary services have been offered,30 because these findings are not supported by substantial evidence This argument is
unpersuasive The record establishes by ciear, cogent, and convincing evidence that a
neuropsychoiogicai evaiuation was not a necessary service under the circumstances
The unchaiienged findings of fact establish:
2.170 A neuropsychoiogicai evaluation was not court ordered and was never recommended as a service.
2.171 Dr. Swing did not recommend a neuropsychoiogicai evaluation in her Septernber [2017] report
2.172 Dr. Swing reviewed as coilaterai information a psychological evaluation previously completed . . . that the mother had previously been diagnosed with an iQ of 64.
2.173 Dr, Swing attempted to assess the mother’s current cognitive functioning, but the mother refused to engage in the necessary testing.
2.174 Based on her observations of the mother's functioning, Dr. Swing diagnosed the mother’s inteilectuai impairment as less severe as prior evaiuators.
2.175 Dr. Swing noted that the mother seemed to operate at a higher levet than her oid i.Q. scores would indicate.
2.176 Dr. Swing did not recommend a neuropsychoiogicai evaluation because it Was not apparent to her that it was needed.
3° These related findings inciude finding effect 2.182 (“So ail of the court-ordered and necessary services capabie of correcting parental deficiencies within the foreseeable future have been expressiy and understandably offered or provided.”) and finding of fact 2.197 (“Services ordered under RCW 13.34.136 have been expressiy and understandably offered or provided, and ali necessary services reasonably availabie, capable of correcting the parents’ [sic] parental deficiencies within the foreseeable future, have been expressiy and understandabiy offered or provided to the parents
[sic].”)
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At triai, Dr. Swing testified that Wood “didn’t show the same level of impairment with someone who l would-~or Who t would traditionaliy think of operating at an i.Q. of below 76” and that Whiie Wood has “impairments in functioning in many areas it seems. . , more related to psychoiogical and emotionai difficuities than it is cognitive difficulties in and of itseif."
The trial court’s finding that a neuropsychoiogicai evaluation was not a necessary service is supported by substantiai evidence Additionaily1 as previousiy indicated substantial evidence also supports the finding that an offer of any additionai services to Wood, such as a neuropsychoiogicai evaluation, would have been futile.
Best Interests of the Chfldreri$`1
l\iext, Wood disputes the trial court's determination that termination is in her children’s best interests She points to evidence that supports a strong, ioving bond between her and the children
We consider the facts and circumstances of each individual case to determine the chiid’s best interests32 Therefore, we piace a “‘vegr strong reliance on trial court determinations of what course of action will be in the best interests of the chiid.‘”33 Without guestion, “a child has the right to basic nurturing, which includes the right to a
safe, stabie, and permanent home and the speedy resolution of dependency and
31 'l'his issue corresponds to Wood’s challenge to findings of fact 2.208, 2.209, 2.219, and 2.220.
32 in re Dependencv of A.VD. 62 Wn. App. 562 572 815 P2d 277 (1991) (citingw Aschauer, 93 Wn. 2d at 695).
33 in re Pawiing, 'lOi Wn. 2d 392, '401 679 P. 2d 916 (1984) (quoting in re We|fare of Todd, 68 Wn. 2d 587 591 414 P. 2d 605 (1966)).
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termination proceedings.”34 if the chiid’s rights conflict with the parent’s rights the
chiid’s rights shouid prevaii.35 Wood does not dispute the trial court’s finding of fact 2.2?4:
[`i'he children_] have aiready been out of home for two years Reunification is at ieast another two years away. if the mother fuliy engaged, it would be six to nine months to begin to show progress These three children can no longer wait for their mother to learn to parent
She also does not dispute the court's finding that she was unaware of her chiidren’s many special needs or finding of fact 2.218: “Continuation of the parent~chiid relationship clearly diminishes the chiid[ren]’s prospect for early integration into a stable and permanent home.” VVe accept these findings as true. Further, Wood testified that she was no more prepared to take her chiidren home at the time of trial than she was on the day she agreed that her chiidren were dependent
"Where a parent has been unable to rehabilitate over a lengthy dependency period, a court is ‘fuily justified’ in finding termination in the child’s best interests rather than ‘ieavirig [the chiid] in the iimbo of foster care for an indefinite period'" while the parent attempts rehabilitation36 Whiie Wood has expressed genuine love for her children, she has not shown progress in addressing her parental deficiencies Accordingly, the preponderance of the evidence supports the trial court’s best interests
finding
34 L&, 108 Wn. App. at 154 (citing RCW 13,34.020). 35 RCW 13.34.020.
35 L_B_ 108 Wn. App. at 167 (quoting in re A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). ‘
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Triai Coun"s Personai Am'mus
Lastiy, Wood argues that the triai court “erred when it permitted its personal animus against the mother to permeate its findings of fact.” As purported examples of this animus Wood points to finding of fact 2.193 (finding the mother is “poorly educated, has at the age of 28 never held a job of any kind for any period, and apparently has no interest in doing so") and finding of fact 2.195 (finding the mother “has utterly no interest in learning”). Wood claims that in light of her deveiopmentai disabiiities these findings detract from the triai court’s appearance of fairness and impartiaiity.
We presume that a trial court performs its duties Without bias or prejudice37 The party claiming bias or prejudice must support the ciaim with evidence of the triai court’s actual or potential bias38
The findings Wood cites are not evidence of the triai court’s actual or potentiai animus Rather, these findings are summaries of Wood’s trial testimony. For instance, when asked why she had never worked, Wood answered, “i hadn’t reaily thought about it." Later, when asked if she would be willing to cooperate with the Department to get some job training or skiils, Wood answered: "i am not,” Wood also testified she Was unaware of any special needs that her chiidren may have and expressed a belief that “they’re typical , . . kids"39 but did not othenrvise testify to learning more about any
perceived speciai needs of her children.'
37 in re i\/iarriaoe of Nleredith, 148 Wn. App. 887, 903, 201 P.3d 1056 (2009).
38 State v. Dominguez, 81 Wn. App. 325, 328»29, 914 P.2d 141 (1996).
39 However, the trial court’s uncontested finding of fact 2.194 establishes that the children are not typicain developing: “fhe mother ciaims to have no awareness of any special needs of any of her children . . . in the face of evidence that her own chiidren
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t.ipon review of the record and context in which the trial court made these findings Wood has not produced evidence that would iead a reasonable person to believe the trial court was biased in any way. Wood’s animus claim iacl
CONCLUS|ON
Substantial evidence supports the trial court’s determination that the Department offered or provided Wood with all reasonably availabie services capable of correcting her parentai deficiencies in the foreseeable future and that a neuropsychological evaiuation was not a necessary service. Any additional services offered to Wood would have been futile Substantiai evidence also supports the trial court’s finding that termination of Wood’s parental rights to S.R.P.W., K.R.T.W., and K.R.-K.W. is in their
best interests We affirm.
WE CONCUR:
aug
are, in fact, in need of a great deal of heip in many spheres she testified that they are typical kids."
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