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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 74641-3-1 (consolidated (with No. 74642-1-1) E.A.S. DOB: 09/16/03 E.M.E.S. DOB: 06/22/05, DIVISION ONE
Minor Children,
STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES,
Respondent,
v.
UNPUBLISHED OPINION CHRISTIANA OSTRANDER,
Appellant. FILED: October 3, 2016
Mann, J. — After a dependency of more than a year and a three-day trial, the
juvenile court entered an order terminating the appellant mother's parental rights to two
of her children. The mother argues that the evidence does not support the court's
findings that: (1) the Department of Social and Health Services (the Department) provided all necessary services to correct her parental deficiencies; (2) there was little likelihood that conditions would be remedied so that the children could be reunited with No. 74641-3-1/2
the mother in the foreseeable future; (3) the mother did not prioritize the children; and
(4) termination of parental rights was in the children's best interest. We conclude that
substantial evidence supports the court's findings of fact and those findings support the
order of termination. We affirm.
FACTS
E.A.S. was born on September 16, 2003. His sister, E.M.E.S., was born on June
22, 2005. In March 2014, when the children were ten and eight years old, they were
removed from their mother's care.1 The removal was based on multiple concerns
including: concerns about drug use by the mother and others in the home; the frequent
presence of multiple people, including strangers, in the home; the mother's mental
health; lack of parental supervision and food in the home; and the school attendance of
one of the children. The court entered an agreed order of dependency as to both
children in July 2014. In that order the mother stipulated that, in addition to a lack of
suitable housing, she had "substance abuse issue[s]" that needed to be addressed.2
The dependency order required the mother to obtain a drug and alcohol evaluation and
follow treatment recommendations, and to obtain a psychological evaluation with a
parenting component. The court also ordered the mother to participate in mental health
counselling, parenting classes, random urinalysis (UA) testing, and twice weekly sober
support meetings.
1 A third child was removed from the mother's care at the same time. That child was returned to the care of her father and the dependency action with respect to her was dismissed.
2 Exhibit (Ex.) 7. -2- No. 74641-3-1/3
The children were placed in the care of the children's maternal grandmother who
lives in Snohomish County, Washington. Nevertheless, despite her awareness that it
might impede reunification efforts, within a few months the mother relocated from
Snohomish County to Southwest Washington. The mother maintained that moving
would enable her to find stable housing and have support from family and friends. The
mother's housing plans fell though, however, and she "house hopped" for approximately
eight months in the Vancouver, Washington area.3
After she moved, the mother did not exercise her weekly visitation consistently.
Several visitation supervisors withdrew because of the mother's sporadic attendance.
Several hundred dollars' worth of train tickets purchased by the Department to transport
the mother to Snohomish County for her visitation went unused.
In January 2015, the mother obtained part-time employment. In March of 2015,
she began a relationship with Shawn Dieter and moved into a two-bedroom mobile
home he shared with his daughter in Washougal, Washington. The same month, the
mother began working full-time transporting cars for auction.
The only services required by the dependency order that the mother completed
were evaluations. The chemical dependency evaluator diagnosed the mother with
methamphetamine dependence, marijuana dependence, possible opiate dependence,
and recommended intensive outpatient treatment. Within the first few months after the
children were removed from her care, the mother submitted several urine samples that
tested positive for methamphetamines, opiates, and cannabis. Her subsequent tests
RP(Nov. 16, 2015) at 14. -3- No. 74641-3-1/4
were negative for drugs, though they were sporadic and she missed or declined a
number of scheduled UA tests.
Social workers made referrals for drug treatment, parenting classes, and mental
health counseling both in Everett and Vancouver, Washington. The mother began drug
treatment in August 2014 and shortly after was deemed not amenable to treatment and
discharged. The treatment consisted of four sessions per week and she attended a
total of five sessions. The mother later participated in treatment between November
and April of 2014. She attended thirteen treatment sessions, but maintained that she
did not have a drug addiction and declined to provide urine samples on several
occasions. She elected not to continue treatment. According to one treatment provider,
because of her failure to recognize that she needed treatment, the mother was not
engaged in the treatment and made no progress.
A clinical psychologist evaluated the mother in 2014. He diagnosed her with
post-traumatic stress disorder (PTSD) and depressive disorder. The evaluator was also
concerned about the mother's untreated drug issues and possible borderline personality
disorder. In addition to mental health counselling to work on depression and PTSD
issues, the evaluator recommended a medication evaluation, intensive outpatient drug
treatment, dialectical behavior therapy, a sober support group, and parenting classes.
The mother attended only one session of mental health counselling following the
evaluation.
-4- No. 74641-3-1/5
In June 2015, the Department filed a petition to terminate the mother's parental
rights.4 At the time of the November 2015 trial on the Department's petition, the mother
was still living with Dieter and working part time. Both the mother and Dieter
acknowledged that their current housing would no longer accommodate them if the
children were returned to the mother. The mother also acknowledged that she
previously stipulated to having a substance abuse problem, but adamantly denied that
this was the case. Even though the opiate result indicated the presence of morphine,
not codeine, the mother insisted that she tested positive for opiates because of
medication she took to treat bronchitis. The mother further testified that she tested
positive for methamphetamine because her former boyfriend put the drug in her coffee
without her knowledge because he was "mad" at her.5 The mother stated that she only
agreed that she had a drug problem for purposes of the dependency because she was
"under the impression" that doing so would allow her more time to meet the
requirements in order to reunite with her children.6 She testified that she believed her
children were removed from her care because she made the social worker "upset."7
Although she disagreed with the treatment recommendation, the mother testified
that she participated in drug treatment in 2014 and 2015. She said she was unable to
complete treatment in 2014 because of health problems and that she discontinued
treatment in 2015 because she "felt that finding [a] stable living environment and a full-
4The petition also sought to terminate the parental rights of the children's biological father. The court later found the father to be in default and his parental rights were terminated by an August 2015 order. He is not a party to this appeal. 5RP(Nov. 18, 2015) at 405. 6RP(Nov. 16, 2015) at 22. 7RP(Nov. 16, 2015) at 21. -5- No. 74641-3-1/6
time income was more important than doing treatments."8 Instead, she said that since
the beginning of 2015 she has had a sponsor, who is also a personal friend, with whom
she meets in person or by telephone approximately twice a week. The mother
explained that she has a sponsor only because the Department required her to do so.
Shortly before trial, the mother completed an updated drug and alcohol assessment and
claimed that according to that updated evaluation, no drug treatment was
recommended. She did not acknowledge that the most recent evaluator issued an
amended report recommending intensive outpatient drug treatment based upon
information provided by the Department that she failed to divulge.
The mother agreed that she had mental health issues including depression,
social anxiety, PTSD, and that she takes medication to treat depression. She said that
she participated in only one session of mental health counselling because it conflicted
with her "schedule" and it was not possible for her to be in "two places at once."9 The
mother also testified that she was not able to complete parenting classes due to health
issues and explained that she missed numerous urinalysis tests because of "schedule
conflicts."10
Four social workers were assigned to the case during the dependency period.
According to their testimony, it was apparent that the mother loved the children and she
continued to visit them throughout the dependency, but her visitation was not consistent
and her engagement in the services offered by the Department was minimal. According
to the social worker assigned to the case at the time of trial, the mother had not made
8RP(Nov. 16, 2015) at 25. 9 RP (Nov. 16, 2015) at 27-28. 10RP(Nov. 16, 2015) at 28. No. 74641-3-1/7
any progress toward correcting her parental deficiencies. She failed to comply with the
court's dependency order and displayed a "lack of insight" regarding the issues that led
to the dependency.11
The psychologist who evaluated the mother testified about numerous personality
and psychological factors that would negatively affect the mother's ability to safely
parent. He noted that while the mother professed to be family-centered, she failed to
recognize behaviors that were harmful to herself and the children. Due to her untreated
substance abuse, mental health issues, and poor decision-making, the evaluator did not
believe the mother was capable of safely and appropriately caring for her children. The
psychologist testified that his prognosis for the mother was "guarded," given her denial,
tendency to blame others, and inaction with regard to addressing the safety issues and
deficiencies that led to the Department's involvement.12 He testified that following
through on the recommendations with regard to drug treatment, parenting classes, and
counselling would be necessary to "even get on the path to reintegration."13
The court entered orders terminating the mother's parental rights to both
children.14 She appeals.
ANALYSIS
The mother challenges the termination order, arguing that the Department failed
to present sufficient evidence to support several of the juvenile court's findings.
11 RP(Nov. 16, 2015) at 137. 12 RP (Nov. 17, 2015) at 192, 209, 212-13. 13RP(Nov. 17, 2015) at 197. 14 The court entered two separate orders that set forth identical findings. -7- No. 74641-3-1/8
Parents have fundamental liberty and privacy interests in the care and custody of
their children. In re Welfare of A.J.R.. 78 Wn. App. 222, 229, 896 P.2d 1298 (1995).
Thus, terminating parental rights should be allowed only "'for the most powerful
reasons.'" A.J.R.. 78 Wn. App. at 229 (internal quotation marks omitted) (quoting In re
Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973)).
Washington courts use a two-step process when deciding whether to terminate
parental rights. In re Welfare of A.B.. 168 Wn.2d 908, 911, 232 P.3d 1104 (2010); RCW
13.34.190. First, the Department must show that the statutory requirements in RCW
13.34.180(1) are established by clear, cogent, and convincing evidence. A.B.. 168
Wn.2d at 911. The Department must allege and 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 ... 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.
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
RCW 13.34.180(1).
-8- No. 74641-3-1/9
Evidence is clear, cogent, and convincing if it shows the ultimate fact at issue is
highly probable. In re Dependency of K.S.C. 137 Wn.2d 918, 925, 976 P.2d 113
(1999). On review, the juvenile court's findings will not be overturned if supported by
substantial evidence. K.S.C. 137 Wn.2d at 925. Evidence is substantial if it is
sufficient to persuade a fair-minded person of the truth of the declared premise. In re
Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006). This court does not
make credibility determinations or weigh evidence on review. C.B., 134 Wn. App. at
953. "The trial judge has the advantage of having the witnesses before him or her, and
deference to the findings is of particular importance in deprivation proceedings." K.S.C.
137Wn.2dat925.
Second, once the trial court concludes that the Department has established the
factors of RCW 13.34.180(1) by clear, cogent, and convincing evidence, it must then
consider whether terminating parental rights is in the best interest of a child. The
Department must establish by a preponderance of the evidence that termination is in
the best interest of the child. RCW 13.34.190(1 )(b). "Only if the first step is satisfied
may the court reach the second." A.B.. 168 Wn.2d at 911.
Necessary Services
The mother claims the evidence does not support Finding of Fact 2.8 which
provides as follows:
Services ordered under RCW13.34.136 have been expressly and understandably offered or provided, and all necessary services reasonably available, capable of correcting the mother's parental deficiencies within the foreseeable future, have been expressly and understandably offered or provided to the mother.'151
15 Clerk's Papers (CP) at 46. -9- No. 74641-3-1/10
To meet its burden under RCW 13.34.180(1 )(d), the Department had to establish
that it offered or provided the mother with the required services, and that she either
failed to engage or waived her right to such services. In re Welfare of S.V.B.. 75 Wn.
App. 762, 770, 880 P.2d 80 (1994). A parent's unwillingness or inability to avail himself
or herself of remedial services within a reasonable period is highly relevant to the
determination of whether the elements of RCW 13.34.180 are established. In re
Dependency of C.T.. 59 Wn. App. 490, 499, 798 P.2d 1170 (1990).
The mother argues that the Department failed to provide "timely transportation
assistance during significant portions of the dependency," and therefore, the record
does not support the court's finding that the Department expressly and understandably
provided all necessary services under RCW 13.34.180(1)(d).16 The mother draws
support for this argument from testimony that for approximately six months after she
relocated to Southwest Washington, there were times when her monthly bus vouchers
did not arrive at the beginning of the month. The court found that the "Department
concedes that there were some problems with the bus vouchers and that many of them
got there late, at least in the beginning."17
According to the testimony at trial, the mother was initially provided with bus
tickets in Snohomish County. When she moved to Southwest Washington, the mother
relied on others for transportation or rode the bus. There was a cumbersome process
for obtaining monthly bus vouchers from another county and following the move, some
vouchers did not arrive a week or more after the first of the month. The mother was
16 Br. of Appellant at 15. 17 CP at 47.
-10- No. 74641-3-1/11
also made aware that she could obtain some bus tickets from the Department's office in
Vancouver, but she did not do so. By 2015, the issue of untimely monthly bus vouchers
was largely resolved. And the mother generally had a vehicle available to her because
her father did not use his vehicle for work, rarely drove it, and freely lent it to her. Her
father testified that he finally gave the mother his vehicle about three months before
trial.
Contrary to the mother's argument, the evidence demonstrates that for the
majority of the time, the mother had transportation, either provided by the Department or
otherwise available. In addition, the record does not show that the delay in obtaining
monthly vouchers created a meaningful barrier to her ability to participate in and
complete court-ordered services. According to the mother's own testimony, she
discontinued drug treatment because she did not believe she needed treatment and
because it interfered with other priorities namely, employment and housing. Likewise,
the mother testified that she did not participate in the recommended mental health
treatment and random UA testing because these services conflicted with her schedule.
She said she was unable to complete parenting classes because of health issues.
Moreover, delays in receiving bus vouchers in 2014 do not explain the mother's
failure to engage in services in 2015. Even though, by her own admission, she had
stable housing starting in March 2015 and was working only part time at the time of trial,
she was not enrolled in treatment. In fact, in spite of the evidence to the contrary, she
maintained that drug treatment was no longer recommended.
The court's unchallenged findings accurately reflect that the mother did not
substantially participate in services for reasons other than lack of transportation. See in
-11- No. 74641-3-1/12
re Dependency of M.S.R.. 174 Wn.2d 1, 9, 271 P.3d 234 (2012) (unchallenged findings
are verities on appeal). For instance, the court found:
The mother did not complete a chemical dependency program. She has argued to this court and indicated to the Department, and throughout this trial and entire case that she does not actually need treatment and that for her a stable environment and a job are more important than substance abuse treatment^181
The court also found that the mother was unable to continue with counselling after one
session because of her "schedule" and that she likewise missed many scheduled UA
tests due to "schedule conflicts."19
Substantial evidence supports the finding that the Department timely offered or
provided all necessary services capable of correcting the mother's parental deficiencies
but she failed to successfully complete drug treatment and other services offered.
Likelihood of Remediation
The mother next challenges the court's Finding of Fact 2.21, which provides:
There is little likelihood that conditions will be remedied so that the child can be returned to the mother in the near future. The mother is currently unfit to parent.[20]
The focus of RCW 13.34.180(1)(e) is whether the identified deficiencies have
been corrected. In re Welfare of M.R.H., 145 Wn. App. 10, 27,188 P.3d 510 (2008). If
the parent is unable to resolve his or her deficiencies within 12 months after the child
has been declared dependent, the statute's rebuttable presumption applies and the
burden of production shifts to the parent, although the Department must still prove it is
highly probable the parent would not improve in the near future. In re Welfare of T.B..
18 CP at 46. 19 CP at 46. 20 CP at 47.
-12- No. 74641-3-1/13
150 Wn. App. 599, 608, 209 P.3d 497 (2009). Again, a "parent's unwillingness to avail
herself of remedial services within a reasonable period is highly relevant to a trial court's
determination as to whether [the Department] has satisfied RCW 13.34.180(1 )(e)."
T.B.. 150 Wn. App. at 608. Even if some evidence suggests that the parents may
eventually be capable of correcting his or her deficiencies, termination is still appropriate
where the deficiencies will not be corrected within the foreseeable future. In re Welfare
of A.G.. 155 Wn. App. 578, 590, 229 P.3d 935 (2010).
The mother claims that the evidence establishes her parental fitness. She points
to the supportive testimony of her current partner and her father and that she had stable
housing and employment for most of 2015. The mother also argues that since the only
basis for the dependency was substance abuse, and she had been sober for over a
year from August 2014, there was no parental deficiency.
The mother's argument is unpersuasive. She does not dispute that she
stipulated to having a substance abuse problem and had positive test results for both
opiates and methamphetamine. Drug and alcohol evaluators in 2014 and 2015
recommended intensive outpatient drug treatment. She did not complete nor
substantially engage in the treatment as ordered by the dependency court. The mother
does not challenge the court's finding that her denial of substance abuse was not
credible.
Nor does the mother challenge the court's finding that she missed many UAs
despite her awareness that the UAs were a court-ordered requirement and essential to
her progress. The court found, "In fact, they are a priority for the Department as well as
-13- No. 74641-3-1/14
this Court."21 Although there were no subsequent positive test results or other
affirmative evidence showing that the mother consumed drugs after August 2014, in
light of her failure to participate in consistent UA testing, the evidence does not
substantiate her claim of sobriety.
And importantly, while her father and partner described her parenting skills as
"excellent" and there was other evidence favorable to her, the mother ignores all
contrary evidence.22 For instance, the psychologist noted the mother's poor choices
which put her children's safety at risk, her failure to take responsibility for her actions,
and her tendency to blame others. He identified numerous psychological factors and
substance abuse issues that would negatively affect her parenting. The volunteer
guardian ad litem and social workers who witnessed the mother's interaction with the
children, noted concerns about her behaviors with the children, including negative
discussions and favoring one child over the other. The social worker assigned to the
case at the time of trial testified that she believed there was no likelihood that conditions
would be remedied in the foreseeable future given that the mother had completed no
services, had made little progress toward reunification in the approximately 21 months
since the children were removed from the home, and lacked insight regarding the
serious issues that led to the removal of the children. Substantial evidence in the record
supports the court's finding that there was little likelihood that conditions would be
remedied so the children could be returned to the mother in the near future.
21 CP at 46-47. 22RP(Nov. 18, 2015) at 351. -14- No. 74641-3-1/15
The Mother's Priorities
The mother next challenges portions of two findings, Findings of Fact 2.32 and
2.34, in which the court found that she "has not made the children a priority."23
The mother contends that the evidence does not support these findings. She
points to evidence of her loving relationship with her children. She contends that
housing and financial stability were essential prerequisites to her participation in
services and treatment. She argues all of her efforts were directed toward the
overarching goal of reuniting with her children.
The mother's argument relies on her own subjective interpretation of the record.
It is undisputed that the mother was aware of the dependency order and its
requirements and understood the need to engage in the services offered by the
Department in order to regain custody. There was no evidence that the mother's
participation in any service was contingent upon employment or housing. In a March
2015 order, the court expressly warned the mother that her lack of compliance with the
dependency order showed that she was not prioritizing the children.24 In a document
she filed in August 2015, the mother stated that because of her work schedule at the
time, which was Tuesday to Friday, from 4:30 a.m. to 1:00 p.m., and Saturday, from
5:00 a.m. to 2:30 p.m., she did not have time to attend sober support meetings or take
parenting classes. Based on this schedule, she said she intended to visit the children
on Sunday mornings in Everett and do errands and spend time with her fiance and his
daughter on Mondays. She stated, "I agree I have not completed services, but I have
23 CP at 48. 24 Ex. 20 at 8.
-15- No. 74641-3-1/16
maintained a healthy living environment, a full time job, and transportation."25 The
evidence that the mother gave precedence to other issues over fulfilling the
requirements of the dependency order, supports the court's determination that the
mother failed to prioritize the children.
Best Interest of the Children
Finally, the mother challenges Finding of Fact 2.33, which provides:
It is in the best interest of the child that all of the parental rights of [the mother] be terminated under RCW 13.34.180 and 190J26'
She also challenges a portion of Finding of Fact 2.34, wherein the court found:
The mother cannot get over her denial issues, particularly with her substance abuse problem. As the Court has repeatedly said, and the Department has warned, the mother has not made the children a priority in her life.... and looking at their best interest, termination of the mother's parental rights is appropriate.'271
The determination of whether termination of parental rights is in the best interest
of the child is a fact specific inquiry. In re Welfare of Aschauer. 93 Wn.2d 689, 695, 611
P.2d 1245 (1980). "Where a parent has been unable to rehabilitate over a lengthy
dependency period, a court is 'fully justified' in finding termination in the child's best
interests rather than 'leaving [the child] in the limbo of foster care for an indefinite period
while [the parent] sought to rehabilitate himself.'" In re Dependency of T.R.. 108 Wn.
App. 149,167, 29 P.3d 1275 (2001) (alterations in original) (quoting In re Dependency of
A.W.. 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). "When the rights of basic nurture,
25 Ex. 21. 26 CP at 48. 27 CP at 48.
-16- No. 74641-3-1/17
physical and mental health, and safety of the child and the legal rights of the parents are
in conflict, the rights and safety of the child should prevail." RCW 13.34.020.
Similar to her other arguments, the mother claims that because she had stability
and a safe living environment, and because the evidence demonstrated that she had
resolved any drug or mental health issues without treatment, termination was not in the
children's best interest. However, while there was evidence that the mother made some
positive changes during the dependency and evidence of parental bonds, particularly
between the mother and daughter, the juvenile court concluded that this evidence did
not outweigh the children's need for permanence and stability. The mother failed to
make progress in approximately 21 months in critical areas, including substance abuse
and mental health treatment. As the court observed, the mother testified that she
agreed to the basis for the dependency so that she would have enough time to
complete the requirements ordered by the court. Yet, after more than a year and a half,
she had not successfully completed any services, apart from evaluations. The mother
does not challenge the court's finding that "the children's need for a permanent living
situation is paramount."28 In light of this unchallenged finding and the mother's lack of
progress in critical areas, there is no basis to disturb the court's finding that termination
of parental rights was in the children's best interest.
28 CP at 48.
-17- No. 74641-3-1/18
CONCLUSION
We affirm the termination orders.
sH*^,^ WE CONCUR:
" I V/ i
-18-