IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of No. 80209-7-I
K.D., ORDER WITHDRAWING AND SUBSTITUTING OPINION A minor child.
On March 30, 2020, the appellant-mother filed a motion requesting that this court
remove her name from the case title, remove her child’s birthdate from the caption, and
change the case caption of the appeal to “In re K.D.” On March 31, 2020, the clerk of
the court denied the mother’s motion and on June 8, 2020, we denied her motion to
modify the clerk’s ruling. The mother filed a motion for discretionary review of the order
denying the motion with the Washington State Supreme Court.
On February 5, 2021, the Supreme Court granted the mother’s motion of
August 28, 2020 for discretionary review as to the confidentiality issue only and entered
an order on July 22, 2021 remanding to this court to remove the name of the parent and
to remove the birthdate of the child from the case caption to comply with RAP 3.4.
Pursuant to the order of the Supreme Court, the panel has determined that the opinion
shall be withdrawn and a substitute opinion filed. Now, therefore, it is hereby No. 80209-7-I/2
ORDERED that the opinion filed on June 8, 2020, is withdrawn and a substitute
opinion shall be filed.
2 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
K.D., UNPUBLISHED OPINION
A minor child.
SMITH, J. — Danielle Graves appeals the juvenile court’s order terminating
her parental rights. She contends that the court violated the separation of
powers when it entered an order in the underlying dependency proceeding
directing the Department of Children, Youth, and Families to file a petition to
terminate the parent-child relationship. The mother also alleges a violation of her
due process right to an impartial tribunal because the same judge who entered
the order directing the Department to file a petition presided over the termination
fact-finding hearing. Finally, she argues that the Department did not meet its
statutory burden to terminate her parental rights because it failed to offer or
provide her with a psychological evaluation. We affirm. 1
FACTS
Danielle Graves is the mother of K.D. She struggles with a severe drug
addiction and used heroin throughout her pregnancy. K.D. was drug-affected at
1The mother also seeks modification of the clerk’s March 31, 2020, ruling denying her motion to change the case caption and to use the parent’s initials in the decision. The motion is denied. Citations and pin cites are based on the Westlaw online version of the cited material. No. 80209-7-I/2
birth and has special needs. For approximately seven months following K.D.’s
birth, the Department of Children, Youth, and Families offered voluntary services
to both parents that were focused on addressing their substance abuse. 2
In May 2017, when K.D. was almost two years old, the Department filed a
dependency petition based on concerns about continuing drug use and after
receiving a report that the mother was involved in a domestic violence incident
with K.D.’s maternal grandmother while the grandmother was holding K.D. The
mother was actively using heroin and methamphetamine at the time. K.D. was
placed in the care of his paternal grandparents. Apart from a six-week period in
late 2017 when K.D. resided with his mother at a treatment facility, K.D. has
remained in his grandparents’ care throughout the dependency.
In August 2017, the court entered an agreed dependency order as to the
mother, finding K.D. dependent because he had no parent, guardian, or
custodian capable of adequately caring for him under RCW 13.34.030(6)(c). The
agreed-upon factual basis for the dependency was the mother’s substance
abuse. The mother acknowledged that her substance abuse “need[ed] to be
addressed by the services” outlined in the dispositional order and that those
services were “reasonable and necessary to address her parental deficiencies.”
The dispositional order required the mother to complete a drug and alcohol
evaluation, to participate in random urinalysis testing, to attend sober support
groups, and to complete a mental health assessment, a parenting assessment,
2 The father relinquished his parental rights during the 2019 termination trial and is not a party to this appeal.
2 No. 80209-7-I/3
and an anger management assessment. The order also required her to follow all
treatment recommendations of the evaluators and service providers and to
“[p]rovide documentation of Psychological evaluation.”
Throughout the dependency, the Department focused primarily on the
mother’s chronic substance abuse as her primary parental deficiency. In May
2017, after the Department filed the dependency petition, it provided the mother
with a referral for a substance abuse evaluation. That evaluation led to a
recommendation for inpatient treatment.
In August 2017, the mother entered a six-month inpatient treatment
program at Isabella House in Spokane. The program is tailored to pregnant and
parenting women and offers comprehensive services that include substance
abuse treatment, mental health treatment, and parent coaching. Soon after she
began the program, the Department arranged for K.D. to be placed with the
mother at Isabella House. However, approximately five weeks later, the mother
left the treatment program.
The mother took K.D. when she left Isabella House and did not notify the
Department as to her whereabouts for several days. When he was returned to
the care of his grandparents, K.D. had sores in his mouth, an infection under his
fingernails, and experienced night terrors. He was referred for an assessment
which led to a recommendation for counseling.
The Department referred the mother for another substance abuse
evaluation in January 2018. The mother decided to enter Family Drug Treatment
Court (FDTC) in February 2018. In conjunction with that program, she entered
3 No. 80209-7-I/4
another inpatient long-term drug treatment program at Evergreen Recovery
Center the following month. The program at Evergreen offers services for co-
occurring disorders and in addition to drug treatment, offers comprehensive
mental health treatment. A month into the program, the mother again abandoned
treatment and was discharged from FDTC. In its April 2018 order discharging
her from FDTC, the juvenile court directed the Department to file a termination
petition.
In July 2018, the Department referred the mother for another substance
abuse evaluation. Shortly after, the mother entered detox and then entered a
third long-term inpatient drug treatment program at Riel House in Yakima. Upon
admission, the mother was experiencing withdrawal and the treatment provider
diagnosed her with substance use disorders related to opioids, amphetamines,
and cocaine. Like the other treatment programs the mother attempted, Riel
House offers substance abuse treatment in conjunction with mental health
treatment and parenting education. Six weeks into the program, the mother
discontinued treatment.
In the meantime, in August 2018, the Department filed a petition to
terminate the mother’s parental rights. In the eight months leading up to the fact-
finding hearing, the mother did not reengage in treatment. She told the assigned
social worker in early 2019 that she intended to enter another long-term
treatment program but did not do so.
In addition to substance abuse treatment, throughout the dependency the
Department offered the mother services related to mental health, anger
4 No. 80209-7-I/5
management, and urinalysis testing, and services to enable her to develop
parenting skills. Although the mother was permitted to visit K.D. twice per week,
she did not visit consistently. The Department also offered the mother housing
assistance. The mother described her living environment with her mother as
“toxic” and told the assigned social worker that she would not be able to stop
using drugs while living there. Nevertheless, the mother did not follow up on the
Department’s offer to provide housing resources.
The hearing took place over two days in May 2019. The mother did not
appear at trial. According to the mother’s attorney, she entered a detox program
on the eve of trial. K.D. was almost four years old at the time of the hearing and
had been out of his mother’s care for nearly two years. After considering the
testimony of 10 witnesses and more than 30 exhibits, the court entered over 100
findings of fact and conclusions of law and an order terminating the mother’s
parental relationship to K.D. The mother appeals.
Standard of Review
“Parents have a fundamental liberty interest in the care and welfare of
their minor children.” In re Dependency of Schermer, 161 Wn.2d 927, 941, 169
P.3d 452 (2007). To terminate the parent-child relationship, the State must
satisfy two statutory prongs. In re Dependency of K.N.J., 171 Wn.2d 568, 576,
257 P.3d 522 (2011). First, the State must establish the six elements of RCW
13.34.180(1) by clear, cogent, and convincing evidence. RCW
13.34.190(1)(a)(i). Evidence is clear, cogent, and convincing if it established the
ultimate fact in issue as “‘highly probable.’” In re Dependency of K.R., 128
5 No. 80209-7-I/6
Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wn.2d
736, 739, 513 P.2d 831 (1973)). Second, the State must show by a
preponderance of the evidence that termination serves the best interests of the
child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232
P.3d 1104 (2010). “Whether a termination is in the best interests of a child must
be determined based upon the facts of each case.” In re Dependency of A.M.,
106 Wn. App. 123, 131, 22 P.3d 828 (2001). We place very strong reliance on a
trial court’s determination of what serves the child’s best interests. In re Welfare
of L.N.B.-L., 157 Wn. App. 215, 255, 237 P.3d 944 (2010).
Where the trial court has weighed the evidence, our review is limited to
determining whether the court’s findings of fact are supported by substantial
evidence and whether those findings support the court’s conclusions of law. In re
Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). “Substantial
evidence is 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) (citing World Wide Video, Inc. v. City of Tukwila,
117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the
findings of fact are supported by substantial evidence “must be made in light of
the degree of proof required.” P.D., 58 Wn. App. at 25. In determining whether
substantial evidence supports the trial court’s findings, “this court does not weigh
the evidence or the credibility of witnesses.” In re Dependency of E.L.F., 117
Wn. App. 241, 245, 70 P.3d 163 (2003).
6 No. 80209-7-I/7
Separation of Powers
The mother contends that the juvenile court invaded the prerogative of the
executive branch—here the Department—and thereby violated the separation of
powers when the court ordered the Department to file a petition to terminate her
parental rights. The issue of a trial court’s legal authority is a question of law we
review de novo. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21, 332 P.3d 1099
(2014).
The Department raises as a threshold matter whether the challenged April
2018 order entered in the dependency is reviewable in the mother’s appeal of the
order terminating her parental rights.
A termination proceeding is a new proceeding, rather than an extension of
the prior dependency action, because the “purpose of a dependency proceeding
and a termination proceeding are diametric.” In re Welfare of S.I., 184 Wn. App.
531, 540, 337 P.3d 1114 (2014). The mother did not appeal from the 2018 order,
or from any other order entered in the prior dependency matter. 3 In her appeal,
the mother thus attempts to collaterally challenge an order in an action that was
not the action in which the order was rendered. As such, her collateral challenge
can be maintained only on the basis of fraud that goes to the court’s jurisdiction.
Mueller v. Miller, 82 Wn. App. 236, 250-51, 917 P.2d 604 (1996); Batey v.
3 Because RAP 2.2 explicitly allows an appeal as of right only of an order following a finding of dependency, it appears that the court’s order discharging the mother from FDTC would be reviewable only under the discretionary review standards of RAP 2.3.
7 No. 80209-7-I/8
Batey, 35 Wn.2d 791, 798, 215 P.2d 694 (1950); Anderson v. Anderson, 52
Wn.2d 757, 328 P.2d 888 (1958).
The mother insists that the order entered in the underlying dependency
proceeding is properly before this court because the dependency and termination
matters are intertwined. And she argues that her appeal of the termination order
brings up for review the 2018 dependency order because the termination action
was premised on that order. We agree with the Department. Because the
dependency proceeding is legally distinct from the termination proceeding, the
April 2018 order entered in the dependency matter is not reviewable in the
mother’s appeal of the termination order.
But even if we assume that the 2018 order is properly before us, the
juvenile court’s 2018 order did not violate the separation of powers.
A fundamental principle of our constitutional system is that “the
governmental powers are divided among three branches—the legislative, the
executive, and the judicial—and that each is separate from the other.” State v.
Osloond, 60 Wn. App. 584, 587, 805 P.2d 263 (1991). Washington’s
constitution, much like the federal constitution, does not contain a formal
separation of powers clause. Osloond, 60 Wn. App. at 587. “Nonetheless, the
very division of our government into different branches has been presumed
throughout our state’s history to give rise to a vital separation of powers
doctrine.” See Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994).
In re the Salary of Juvenile Dir., 87 Wn.2d 232, 238-40, 552 P.2d 163 (1976).
8 No. 80209-7-I/9
The purpose of the doctrine is “to ensure that the fundamental functions of each
branch remain inviolate.” Carrick, 125 Wn.2d at 135.
The validity of the separation of powers does not, however, “depend on
the branches of government being hermetically sealed off from one another.”
Carrick, 125 Wn.2d at 135. The separation of powers doctrine evolved side by
side with our constitutional scheme of checks and balances. In re Interest of
Mowery, 141 Wn. App. 263, 281, 169 P.3d 835 (2007). Harmonizing these
doctrines requires that “[t]he different branches must remain partially intertwined
if for no other reason than to maintain an effective system of checks and
balances, as well as an effective government.” Carrick, 125 Wn.2d at 135.
Separation of powers is thus grounded in flexibility and practicality and
“rarely will offer a definitive boundary beyond which one branch may not tread.”
Carrick, 125 Wn.2d at 135 (citing Juvenile Dir., 87 Wn.2d at 240). To determine
whether the separation of powers has been violated, the inquiry is not “‘whether
two branches of government engage in coinciding activities, but rather whether
the activity of one branch threatens the independence or integrity or invades the
prerogatives of another.’” Carrick, 125 Wn.2d at 135 (quoting Zylstra v. Piva, 85
Wn.2d 743, 750, 539 P.2d 823 (1975)). Our inquiry seeks to balance the value
of autonomy against the competing value of reciprocity. Wash. State Bar Ass’n,
125 Wn.2d 901, 913, 890 P.2d 1047 (1995).
To evaluate whether one branch of government is damaged by an
alleged incursion by another, courts may look to the history of the practice and
indication of toleration for coinciding activities. Carrick, 125 Wn.2d at 136. As
9 No. 80209-7-I/10
the doctrine protects institutional interests, a “history of cooperation” between the
branches “militates against a finding of a separation of powers violation.” State v.
Chavez, 134 Wn. App. 657, 666, 142 P.3d 1110 (2006), aff’d, 163 Wn.2d 262,
180 P.3d 1250 (2008). These principles guide our analysis of the mother’s claim
that by ordering the Department to file a termination petition, the court
unconstitutionally invaded the prerogative and independence of the Department.
The court and the Department do not operate within mutually exclusive
spheres. In cases involving child welfare, there is a history of interdependence
and cooperation between the juvenile courts and the Department. Dependency
proceedings under the termination statute are remedial in nature and are
intended to protect children and, where possible, to reunite families. Schermer,
161 Wn.2d at 943; In re Dependency of A.L.F., 192 Wn. App. 512, 523, 371 P.3d
537 (2016). The Department has authority to provide services to parents in order
to meet the legislative objectives and to alleviate the problems that led to state
intervention. RCW 13.34.025; RCW 74.13.010, .031; A.L.F., 192 Wn. App. at
523. But the Department does not bear sole responsibility and authority to
intervene in the lives of families. In 1905, the legislature created separate
juvenile courts and added neglected children to the court’s jurisdiction. K.N.J.,
171 Wn.2d at 575. Eight years later, chapter 13.04 RCW, the predecessor to the
current termination statute, was enacted, establishing a “wide range of powers,
duties, and procedural guidelines and giving courts the authority to intervene”
when a child is found to be dependent. K.N.J., 171 Wn.2d at 575.
10 No. 80209-7-I/11
Under chapter 13.34 RCW, the Department is responsible for case
management, but the juvenile court oversees dependency proceedings. The
court exercises its oversight role primarily through dependency review hearings.
K.N.J., 171 Wn.2d at 579. RCW 13.34.138(1) requires that the court review the
status of a dependent child at least every six months. The purpose of review
hearings is to evaluate the progress of the parent and determine whether it is
appropriate to continue court supervision. K.N.J. 171 Wn.2d at 579; In re
Dependency of A.W. 53 Wn. App. 22, 28, 765 P.2d 307 (1988). If a child is not
returned to a parent at a review hearing, the court must determine whether the
current long-term plan remains in the best interest of the child and whether
additional orders are required to move toward permanency. RCW
13.34.138(2)(c)(xii), (xiii). With respect to this determination, the legislature has
expressly provided that at the review hearing, the juvenile court may order the
filing of a petition to terminate the parent-child relationship. RCW
13.34.138(2)(d).
The dependency statute also allows the juvenile court to place a child with
a caregiver over the Department’s objections. RCW 13.34.130(1)(b)(i). And at
the time of the entry of the dispositional order, the court may order the filing of a
termination petition when there are aggravating circumstances, such that
reasonable efforts to reunify the family are not required. RCW 13.34.130(8),
.132(4).
In addition, when a child has been returned to a parent’s custody and then
subsequently removed, the court is required to conduct a review hearing to
11 No. 80209-7-I/12
determine whether the permanent plan for the child needs to be changed,
whether a termination petition should be filed, or whether other action is
warranted. RCW 13.34.138(3)(c). The best interest of the child is the primary
consideration in the review hearing process. RCW 13.34.138(3)(c). The
permanency planning provisions also provide that the court “shall” order the
Department to file a termination petition if the child has been out of the home for
15 months of the most recent 22-month period and the court has not made a
“good cause” exception. RCW 13.34.136(3).
The mother’s argument is inconsistent with the provisions of Title 13
RCW. While the Department may file a termination petition without impetus from
the court, these provisions clearly allow, and sometimes require, the juvenile
court to order the Department to file a termination petition.
The mother suggests that all provisions authorizing the juvenile court to
order the Department to file a termination petition are unconstitutional. But she
relies on cases involving the encroachment upon the discretionary charging
decisions of criminal prosecutors. See State v. Rice, 174 Wn.2d 884, 896, 279
P.3d 849 (2012); State v. Agustin, 1 Wn. App. 2d 911, 921-22, 407 P.3d 1155
(2018). She advances no compelling argument that the Department’s authority
to initiate an action to terminate parental rights is “analogous to a charging
document instituting a criminal action” and that these authorities apply outside of
the context of criminal prosecutions. The mother fails to establish beyond a
reasonable doubt the unconstitutionality of any of the provisions of chapter 13.34
RCW. See In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015)
12 No. 80209-7-I/13
(Statutes are presumed to be constitutional, and the burden falls to the
“challenger of a statute [to] prove beyond a reasonable doubt that the statute is
unconstitutional.”).
The juvenile court’s actions in this case were consistent with the authority
vested by the legislature. The court found K.D. dependent as to the mother in
August 2017 and held a review hearing in October 2017. At the review hearing,
the court made findings with regard to the mother’s compliance with the court’s
orders and her progress, and approved the plan to reunite K.D. with her. Shortly
thereafter, the court ordered K.D. to be placed with his mother at an inpatient
treatment facility, but then ordered K.D.’s removal again after the mother
abandoned treatment.
The court held another review hearing in January 2018 and, in accordance
with RCW 13.34.138(3)(c), changed the permanent plan for K.D. to a concurrent
plan of returning K.D. home or pursuing adoption. In April 2018, after the mother
entered FDTC and was then discharged from that program after quickly
abandoning another long-term treatment program, the court directed the
Department to file a termination petition. Four months later, the Department filed
the petition. At a review hearing in May 2018, the court changed the permanent
plan to a primary plan of adoption and alternate plan of returning home.
The decision of whether and when to file an action to terminate the parent-
child relationship under chapter 13.34 RCW is not the exclusive prerogative of
the Department. The juvenile court’s April 2018 order directing the filing of a
13 No. 80209-7-I/14
termination petition is consistent with its authority under Title 13 RCW and did not
unconstitutionally encroach upon the authority of the Department.
Impartial Tribunal
The mother next claims she was deprived of her right to an impartial
tribunal because the same judge who ordered the Department to file a
termination petition in the dependency case presided over the termination fact-
finding hearing.
Due process requires “an impartial and disinterested tribunal in both civil
and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct.
1610, 64 L. Ed. 2d 182 (1980). Nevertheless, most issues of alleged bias
requiring judicial disqualification do not rise to a constitutional level. Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208
(2009) (citing Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S. Ct.
793, 92 L. Ed. 1010 (1948)). Because the states’ codes of judicial conduct may
provide more protection than due process requires, courts generally resolve most
disputes over disqualification without resort to the constitution; only rarely will due
process mandate disqualification. Caperton, 556 U.S. at 889-90. When
examining whether due process mandates disqualification, a court conducts an
objective inquiry, asking not “whether the judge is actually, subjectively biased,
but whether the average judge in [their] position is ‘likely’ to be neutral, or
whether there is an unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at
881.
14 No. 80209-7-I/15
The United States Supreme Court has found an unconstitutional potential
for bias in violation of the due process clause only in specific, limited
circumstances. For instance, such circumstances may exist where a judge has
“a direct, personal, substantial pecuniary interest” in a case, Tumey v. Ohio, 273
U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927), where a judge overseeing a
criminal contempt proceeding had “previously served as grand juror in the same
case, or where the party charged with contempt ha[d] conducted ‘an insulting
attack upon the integrity of the judge carrying such potential for bias as to require
disqualification.’” Williams v. Pennsylvania, 136 S. Ct. 1899, 1912, 195 L. Ed. 2d
132 (2016) (Roberts, C.J., dissenting on other grounds) (quoting Mayberry v.
Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)).
Unconstitutional potential for bias may also exist where an individual with a stake
in a case had a significant and disproportionate role in placing a judge on the
case through the campaign process or where a judge had an earlier significant,
personal involvement as a prosecutor in a critical decision in the defendant’s
case. Caperton, 556 U.S. at 884; Williams, 136 S. Ct. at 1906.
The circumstances here do not compare to these “extreme” and
“extraordinary” scenarios that led the United States Supreme Court to conclude
that recusal was required. See Caperton, 556 U.S. at 887-88. The judge in this
case acted only in the capacity as a judicial officer. In that capacity, she entered
an order involving the mother in FDTC proceedings. Over a year later, when she
presided over the fact-finding hearing on the Department’s termination petition,
the judge promptly alerted the parties to her prior involvement. At the outset of
15 No. 80209-7-I/16
the termination fact-finding hearing, the judge informed the parties that she had
presided over FDTC during the time when the mother participated, that the
mother’s name was familiar, and that she remembered no details about the
mother’s case. Neither party raised any objection or sought recusal after being
apprised of these circumstances. 4
Our decision in In re Dependency of A.E.T.H., 9 Wn. App. 2d 502, 446
P.3d 667 (2019), does not advance the mother’s claim on appeal. The juvenile
court’s impartiality was compromised in that case by the misconduct of
employees of the guardian ad litem program who were “working against” the
parents. A.E.T.H., 9 Wn. App. 2d at 517-18. This case involves no allegations of
misconduct. And the court’s order discharging the mother from the FDTC
program and directing the Department to file a petition was not “working against”
the mother. The court was simply balancing its responsibilities under the statute
to facilitate the provision of resources and assistance to the parents to enable
reunification while, at the same time, protecting the welfare of the child and
moving the case toward permanency. While the court directed the Department to
file a termination petition, efforts to provide the mother with substantial services,
including long-term inpatient substance abuse treatment, continued and the court
approved K.D.’s return home as an alternative long-term plan for him. The
4 The mother clarifies in her reply brief that the issue is not simply whether the prior involvement of the judge created an unconstitutional risk of bias, but that unconstitutional bias arose from the fact that “the Superior Court (as a governing body)” adjudicated the matter after having issued an order directing the Department to initiate the termination proceeding. But none of the cases she relies on support her argument that the alleged “structural” flaw she describes results in a violation of the due process right to an impartial tribunal.
16 No. 80209-7-I/17
court’s order does not demonstrate or give rise to an inference of unconstitutional
bias. The mother fails to establish a violation of her due process right to an
impartial tribunal.
Services
Finally, the mother claims the evidence does not support the court’s
determination that the Department met its burden under RCW 13.34.180(1)(d)
because the Department failed to offer her a psychological evaluation.
Parents must be offered all reasonably available and necessary services
capable of correcting parental deficiencies within the near future. RCW
13.34.180(1)(d). Such services must be individually tailored 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). But the Department need
not provide additional services where the record establishes that such provision
would be futile. In re Parental Rights to K.M.M., 186 Wn.2d 466, 480, 379 P.3d
75 (2016). Where a parent is unwilling or unable to make use of the services
already provided, offering additional services would be futile. K.M.M., 186 Wn.2d
at 483.
The mother claims that a psychological evaluation was a court-ordered
service the Department was required to provide. We disagree. No court order,
directly or impliedly, required the mother to obtain a psychological evaluation.
Based on her representation to Department employees that she completed a
psychological evaluation in 2017, the dispositional order and subsequent review
hearing orders directed the mother to “provide documentation” of the evaluation
17 No. 80209-7-I/18
to the Department. Although the mother never provided documentation to the
Department, she did not change her position that she had, in fact, already
completed an evaluation and had obtained the results.
Even when a service is not court-ordered, it may still be considered a
necessary service that the Department should have brought to the attention of
the trial court prior to termination. RCW 13.34.180(1)(d); In re Dependency of
T.L.G., 126 Wn. App. 181, 200, 108 P.3d 156 (2005). The mother contends that
even if a psychological evaluation was not court-ordered, it was a necessary
service because a psychological evaluation is more extensive than a mental
health assessment, which the Department was ordered to provide. The mother
asserts that such an evaluation could have shed light on her inability to
successfully complete drug treatment and could have offered appropriate
treatment options to “overcome her pattern” of quickly withdrawing from
treatment.
But a necessary service is a service that is “‘needed to address a
condition that precludes reunification of the parent and child.’” K.M.M., 186
Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332
P.3d 500 (2014)). A psychological evaluation does not fall within this definition
because an evaluation would not have enabled reunification. The purpose would
have been to direct the mother toward appropriate treatment. The mental health
treatment that followed from the evaluation, not the evaluation itself, was the
service necessary to address a condition precluding reunification. Here, the
mother does not identify a mental health or other supportive service that would
18 No. 80209-7-I/19
have been helpful that the Department failed to offer. The mother offers nothing
beyond speculation to support the claim that another psychological evaluation
would have led to different treatment recommendations. It is undisputed that the
Department offered mental health services to the mother, both in conjunction with
long-term inpatient drug treatment and independently, and that for the most part,
she failed to engage in those services. And the mother does not challenge the
court’s finding that during the dependency, she firmly expressed her view that
she “needed to focus on her drug addiction and get sober” before she would be
able to address any underlying mental health issues.
There is no evidence in the record to suggest that a psychological
evaluation, or any other available service, was capable of correcting the mother’s
parental deficiencies within the child’s foreseeable future. The foreseeable future
for K.D. was six months. Substantial evidence supports the trial court’s
determination that the Department expressly and understandably offered all
reasonably available and necessary services as required by RCW
13.34.180(1)(d).
We affirm.
WE CONCUR: