FILED JUNE 15, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Parental Rights to: ) No. 38924-3-III ) (consolidated with D.G.B.† ) No. 38925-1-III) ) Minor Child. ) UNPUBLISHED OPINION In re the Parental Rights to: ) ) B.D.B. ) ) Minor Child. )
LAWRENCE-BERREY, J. — J.A., mother to D.G.B. and B.D.B., appeals the
termination of her parental rights. She argues the Department of Children, Youth, and
Families (Department) failed to offer necessary services capable of correcting her
parental deficiencies, specifically, inpatient dual diagnosis treatment to address her
substance abuse and mental health issues. The record refutes her argument, so we affirm.
† To protect the privacy interests of D.G.B. and B.D.B, we use their initials throughout this opinion. Gen. Order for Ct. of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22, 2018, (effective Sept. 1, 2018), http://www.courts.wa.gov/ appellate_trial_courts). No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
FACTS
J.A. is the single mother of five children. Her parental rights to three of her
children were previously terminated. This appeal concerns the termination of J.A.’s
parental rights to D.G.B., born in May 2016, and B.D.B, born in March 2019. D.B. is the
presumed father of D.G.B. and the alleged father of B.D.B. D.B. died in May 2020,
during the pendency of the underlying dependency actions.
D.G.B. was born in Yakima in 2016. While J.A. was pregnant with D.G.B., she
used marijuana and methamphetamine. After his birth, Child Protective Services (CPS)
investigated J.A.’s substance use and the reported domestic violence between her and
D.B. J.A. sought a temporary protection order after D.B. hit her and sprayed her with
mace, but she did not feel a permanent order was necessary. CPS later closed its
investigation.
The family moved to Arizona, where B.D.B. was born in 2019. CPS in Arizona
became involved around the time of B.D.B.’s birth because J.A. relapsed on
methamphetamine. CPS implemented a family safety plan, which required J.A., D.G.B.,
and B.D.B. to stay with J.A.’s sister under 24-hour supervision. J.A. later moved into a
shelter in Phoenix where she received substance abuse treatment, counseling, and she
attended weekly Alcoholics Anonymous and Narcotics Anonymous meetings.
2 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In February 2020, the family returned to Yakima. J.A. continued to use
methamphetamine. At one point, she contacted law enforcement because she believed
D.B. had taken her children. In retaliation, D.B. hit J.A. in the face. D.B. reported he hit
J.A. because of her drug use. Law enforcement arrested D.B. and recommended that J.A.
move into the YWCA in Yakima, a domestic violence shelter for women. J.A. stayed at
the YWCA with her children for one week but was asked to leave because she screamed
profanities at her children.
Procedure
1. Dependency petitions
Julie Scott, a CPS investigator, was assigned the case after receiving reports of
physical abuse and neglect from the YWCA and a local Rite Aid store employee. In
March 2020, Ms. Scott filed dependency petitions1 on behalf of the Department for both
D.G.B. and B.D.B. The court ordered the State to take both children into custody and
place them in shelter care. The children were found in a motel a couple of days later.
After the children were taken into custody, Ms. Scott set up a Family Team
Decision Making Meeting with J.A. to address her concerns. J.A. attended the meeting,
1 Neither party designated the dependency petitions with the clerk’s papers nor were they designated as exhibits.
3 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
where she and Ms. Scott discussed what services the Department offered, including a
mental health assessment, a drug and alcohol assessment, and random urinalysis testing.
J.A. declined Ms. Scott’s offer of those services citing a recent surgery.
Around that time, J.A. moved to Kennewick to live with her mother while she
recovered from surgery. She stayed there for about one month. During that time, J.A.’s
case was transferred from Ms. Scott to social worker Kimberly Hawkins.
Ms. Hawkins discussed with J.A. what services were offered and referred her to
Merit Resource Services, a facility in Kennewick, for substance use disorder assessments
and urinalysis testing. Ms. Hawkins also discussed a mental health assessment referral to
Catholic Charities in Kennewick. She explained those services would be paid for by
Medicaid and provided J.A. the phone number to call to obtain insurance, which J.A.
successfully obtained.
As promised, Ms. Hawkins sent referrals to Merit Resource Services in Kennewick
on March 17 and April 30, 2020. Ms. Hawkins texted J.A. after she sent the first referral
to Merit. J.A. attended her initial substance abuse assessment but never returned for her
results. J.A. provided one urinalysis sample on Ms. Hawkins’s initial referral, the only
sample she submitted throughout the pendency of the dependencies.
4 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In April, J.A. returned to Yakima. That month, she admitted herself into a detox
facility at Comprehensive Healthcare in Yakima. While there, Leslie Pace, a mental
health counselor, conducted an outpatient mental health assessment on J.A. Ms. Pace
diagnosed J.A. with posttraumatic stress disorder, severe methamphetamine use, and
severe cannabis use disorder. Three days later, J.A. completed a drug and alcohol
assessment with Joseph Zambrano at Comprehensive.
Ms. Pace recommended J.A. attend outpatient dual diagnosis mental health
treatment and therapy for substance use provided by Comprehensive. The purpose of a
dual diagnosis program is to treat both mental health and substance use disorder
simultaneously.
J.A. e-mailed Ms. Hawkins to let her know about her assessments and the results
from Comprehensive. She informed Ms. Hawkins that she was recommended outpatient
dual diagnosis treatment and requested another referral to Merit Resource Services to
restart random urinalysis testing. Ms. Hawkins responded to J.A. by e-mail and clarified
that the previous urinalysis referral was for Merit in Kennewick but stated that she would
send an updated referral to Merit in Yakima. The record is unclear if J.A. responded to
this e-mail. J.A. was scheduled to begin treatment at Comprehensive following her
referral, but she never attended the appointment.
5 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In May, Ms. Hawkins met with both J.A. and D.B. in person to discuss treatment
services. D.B. was able to secure a bed date for inpatient substance use treatment in
Wenatchee, but J.A. wanted to stay in Yakima to obtain substance use disorder services
and to look for a job and housing. Ms. Hawkins provided them with gas cards to assist
with transportation to service appointments and provided information on local shelters
and housing agencies with contact information. Ms. Hawkins also provided a mobile
phone to J.A. to use to access services and remote visitation.
Later that month, D.B. was shot to death in J.A.’s presence. J.A. began using
fentanyl following D.B.’s death.
2. Dependency orders
On May 27, 2020, J.A. stipulated that both D.G.B. and B.D.B. were dependent,
and the court issued dependency orders that day. The court ordered J.A. to participate in
random urinalysis testing, substance use disorder treatment, a mental health assessment, a
parenting assessment, domestic violence services, and to follow any recommended
treatment. The court also ordered J.A. to sign releases of information with all service
providers and to maintain contact with the Department. The court noted in the orders that
“[t]he mother reports that she has a recent treatment recommendation from
6 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
Comprehensive Health Care to participate in Intensive Outpatient Treatment.” Ex. 3
(D.G.B.), at 3; Ex. 10 (B.D.B), at 3.
The court also explained that J.A. agreed to the facts that formed the basis of the
dependencies. She acknowledged her long history of substance abuse and that she lost
her parental rights to her other three children for failure to complete court-ordered
substance abuse treatment. She also acknowledged that domestic violence occurred in
front of her children and agreed that she needed to participate in services for parenting
and substance abuse in order to safely parent her children.
In June, J.A. e-mailed Ms. Hawkins requesting a referral to inpatient substance use
treatment at Sundown M Ranch in Yakima. Ms. Hawkins responded, explaining that no
referral was necessary and J.A. needed only to schedule an assessment at Sundown. Ms.
Hawkins provided J.A. with Sundown’s telephone number and informed her that it is not
a dual diagnosis facility but that there are some inpatient dual diagnosis facilities outside
of Yakima. Ms. Hawkins asked J.A. if she was still interested in dual diagnosis treatment
and provided contact information for two inpatient dual diagnosis facilities: Inland
Northwest Behavioral Health in Spokane and Cascade Behavioral Health in Tukwila.
Ms. Hawkins also suggested J.A. could get an assessment at Triumph Treatment Services,
7 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
a local substance use treatment facility in Yakima and that a Triumph assessment could be
used to get her into an inpatient dual diagnosis facility.
In this e-mail exchange, Ms. Hawkins and J.A. also discussed switching J.A.’s
health insurance to Apple Healthcare, an insurance provided by Washington State.
Ms. Hawkins directed J.A. to call and switch her insurance so that she could set up an
appointment at Sundown and provided her a phone number to do so. J.A. complied and
informed Ms. Hawkins that she was able to switch her insurance and set up an
appointment at Sundown. Later, Ms. Hawkins attempted to confirm how the assessment
went and what J.A.’s plans were for inpatient treatment, but J.A. did not respond to Ms.
Hawkins’s questions. J.A.’s only response to Ms. Hawkins was a request for a new food
stamp card.
J.A. attended inpatient substance use treatment at Sundown but left after three
days, without completing treatment. After J.A. left Sundown, she sporadically contacted
Ms. Hawkins, who encouraged her to get into inpatient treatment.
In July, J.A. texted Ms. Hawkins that she was unsafe and wanted to see her
children one last time. Ms. Hawkins encouraged J.A. to go to detox or an inpatient
facility.
8 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In August, Ms. Hawkins again spoke with J.A. to inform her that her children’s
placement was changed and that they were living with J.A.’s sister in Kennewick. J.A.’s
sister brought the children to Yakima for an in-person visit with J.A. That month, Ms.
Hawkins texted J.A. about preferred treatment providers and referred her for a domestic
violence evaluation and random urinalysis testing at Triumph in Yakima. Ms. Hawkins
and J.A. also discussed engaging in substance use disorder treatment at Comprehensive
Healthcare because her previous assessment was still active there.
On September 8, Ms. Hawkins and J.A. again spoke about setting up visitation.
Ms. Hawkins offered bus tickets for J.A. to travel to Kennewick and visit her children and
sister, but J.A. declined and said she had a ride.
After that conversation through April 2021, Ms. Hawkins lost all contact with J.A.
During that time period, J.A. had no visits with her children, made no contact with Ms.
Hawkins or the Department, and did not engage in any court-ordered services. During
that time period, per Department policy, Ms. Hawkins checked the jail roster weekly for
J.A.’s name and sent her letters, calls, texts, and e-mails, to no avail.
3. Termination petitions
In November 2020, the Department petitioned the court to terminate J.A.’s
parental rights to D.G.B. and B.D.B. The court appointed a guardian ad litem for the
9 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
children and set a termination hearing for March 2021. The court granted a Department
motion to publish the notice and summons because Ms. Hawkins was unable to locate
J.A. After J.A. failed to appear at the termination hearing, the court entered an order of
default and set a presentment hearing for the termination orders for April 2021.
J.A. appeared at the presentment hearing and the court appointed her an attorney.
Although J.A. remained in default, the court set a status hearing to overturn the default
for later that month. At the status hearing, the court overturned J.A.’s default and set a
termination trial date for September 27-28, 2021, in addition to setting dates for triage and
status hearings. That month, Ms. Hawkins sent J.A. referrals for counseling and a
domestic violence evaluation.
In May 2021, Ms. Hawkins held another Family Team Decision Making Meeting
via zoom with J.A. Ms. Hawkins informed J.A. that her children were moved into a
licensed foster care facility. Ms. Hawkins again discussed the substance use, mental
health, and domestic violence services offered to J.A.
In June, J.A. again admitted herself into the detox facility at Comprehensive. She
stayed in the facility for just one day and then left. Ms. Hawkins referred J.A. for a visit
with her children later that month, which J.A. attended.
10 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In July, Ms. Hawkins sent J.A. a service letter reminding her of the court-ordered
services, the contact information for treatment providers, and where she had active
referrals. With regard to substance use treatment, the letter informed J.A. that she needed
to complete a chemical dependency evaluation. The letter also informed J.A. of the
upcoming termination trial. Ms. Hawkins also sent J.A. referrals to counseling, a
parenting assessment, and random urinalysis testing.
In August, J.A. texted Ms. Hawkins and reported that she went to a facility to
attempt to get a prescription for Suboxone. Ms. Hawkins informed J.A. that she still
needed to complete substance use treatment and that Suboxone would not work for
treating methamphetamine.
At the beginning of September, Ms. Hawkins again texted J.A. to remind her about
offered services. Ms. Hawkins sent J.A. a referral to Triumph for random urinalysis
testing. Later that month, at the triage hearing, J.A. asked about dual diagnosis treatment.
Following the hearing, Ms. Hawkins texted J.A. and recommended Evergreen Treatment
Services, an inpatient dual diagnosis treatment facility in Seattle. Ms. Hawkins again
informed J.A. that she did not need a referral and instead only needed to complete a new
substance use disorder assessment. Ms. Hawkins provided J.A. with a list of providers,
and J.A. ultimately choose to go to Barth Clinic for the assessment.
11 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
4. Termination trial
The termination trial was held on September 27, 2021. The State called J.A. to
testify. J.A. testified consistently with the facts above. J.A. testified that she started
using marijuana and methamphetamine at the age of 13. She explained that she had
attempted to complete multiple treatment programs, including several inpatient treatment
programs. Her longest period of sobriety occurred in 2011 and lasted between six and
nine months, when she attended inpatient treatment at Riel House. She acknowledged
that she was supposed to continue outpatient treatment after she completed treatment at
Riel House but stated that she did not complete it. She returned to Riel House for
treatment in 2016 but left after one week because the program had changed and was “too
relaxed.” 1 Rep. of Proc. (RP) (Sept. 27, 2021) at 35. J.A. testified she was using
methamphetamine two times per week and four fentanyl pills per day at that time.
The State’s attorney asked J.A. if her social worker had ever talked with her about
dual diagnosis programs. J.A. responded that the social worker “didn’t offer no services.
I didn’t know that those services were, you know, really available. I thought that I just
had to do the drug and alcohol assessment.” 1 RP (Sept. 27, 2021) at 43. The State’s
attorney then asked J.A. about her admission into the detox facility at Comprehensive and
whether J.A. received a recommendation for treatment following her substance use
12 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
assessment. J.A. responded, “I believe I did and it was dual diagnosis. And nobody has
given me any information on facilities available or approved.” 1 RP (Sept. 27, 2021)
at 44.
Following J.A.’s testimony, the court recessed the trial. When trial resumed, J.A.’s
attorney informed the court that J.A. expressed interest in relinquishing her parental rights
to both D.G.B. and B.D.B. and had signed the required documents. The court accepted
the relinquishments and found that J.A. made a knowing, intelligent, and voluntary
decision to terminate her parental rights. The court adjourned the termination trial and set
a hearing on the relinquishments.
Two days later, J.A. chose to revoke her relinquishments, and the court set the
resumption of the termination trial for November 29 and 30, 2021.
Prior to the new trial date, J.A. attended a substance use assessment at Barth
Clinic, where she met with Yuridia Servin, a substance disorder professional. J.A. told
Ms. Servin that she was using 10 pills of fentanyl, methamphetamine, and marijuana
daily. Following her assessment, Ms. Servin diagnosed J.A. with opioid,
methamphetamine, and cannabis use disorder. Ms. Servin recommended a high intensity,
dual diagnosis inpatient treatment program at Evergreen Recovery Center. The
13 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
evaluation report indicated that J.A. was working with Barth to set up a bed date for
inpatient treatment.
On November 3, 2021, J.A. was arrested on an outstanding warrant. While in jail,
she attempted to commit suicide and was prescribed mental health medication. On
November 15, Ms. Servin went to the jail to supplement Barth’s substance use disorder
assessment of J.A., which was necessary every two weeks in order to obtain inpatient
treatment. The following day, November 16, J.A. was released from jail and returned to
Barth. Ms. Servin informed J.A. that she needed to make daily contact with the clinic in
order to secure a bed date for inpatient treatment. However, J.A. failed to maintain daily
contact and, as a result, failed to obtain a bed date for treatment.
The termination trial resumed on November 29, 2021. During trial, the State
called various witnesses relevant to J.A.’s case including law enforcement, treatment
providers, social workers, and the children’s guardian ad litem. We limit our discussion
to those witnesses necessary to resolve the issue on appeal.
The State called J.A. to testify again. J.A. acknowledged that Ms. Hawkins
provided her the contact information for two inpatient dual diagnosis facilities. The
State’s attorney then questioned J.A.:
14 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
Q Ms. Hawkins has explained to you on several occasions that you need to do a drug and alcohol assessment to access inpatient treatment, correct? A Oh, correct. .... Q Okay. So, it’s accurate that you understand that the assessment is the first piece of getting into a dual diagnosis program? That’s accurate? A Yes . . . —
2 RP (Nov. 29, 2021) at 32.
Ms. Scott testified that she decided to file the dependency petitions and requested
pickup orders based on the reports of domestic violence, drug use, and of J.A. being
unable to feed her children. Ms. Scott testified that she discussed and offered J.A. mental
health, substance use, and parenting assessments, as well as random urinalysis testing, but
that J.A. declined those services because of a medical condition.
Ms. Pace testified that she performed a mental health assessment of J.A. in
April 2020 at Comprehensive. She recommended J.A. engage in outpatient mental health
treatment and therapy for substance use, and Ms. Pace made a referral for a substance use
disorder assessment. Ms. Pace testified that J.A. was scheduled for a therapy appointment
later that month but that she failed to show up.
Kimberly Clemmons, the team leader of the detox facility at Comprehensive,
testified that the facility provides a monitored environment for individuals to withdraw
15 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
off substances. She testified that if a patient wants a substance use disorder assessment,
Comprehensive can provide and schedule the service or will refer the patient to outside
agencies, if desired. She testified that J.A. admitted herself into the detox facility in
June 2021 and stayed only one day without participating in a substance use assessment.
Ms. Hawkins testified consistent with the facts above. When asked about J.A.’s
parental deficiencies, Ms. Hawkins stated that she has “very high drug and alcohol
concerns” and that “mental health is still an issue.” 2 RP (Nov. 30, 2021) at 216. Ms.
Hawkins stated that she did not believe J.A. could correct her deficiencies in the near
future because she “has not consistently engaged in any services.” 2 RP (Nov. 30, 2021)
at 217.
Following trial, the court entered a letter decision explaining its decision to
terminate J.A.’s parental rights to both D.G.B. and B.D.B. Six months later, the court
entered the termination orders for each child, which contained its formal findings and
conclusions. Specifically, the court concluded the Department showed by clear, cogent,
and convincing evidence that the services ordered and all services that were necessary,
reasonably available, and capable of correcting the parental deficiencies were expressly
and understandably offered or provided. The court made the following conclusions that
are challenged on appeal:
16 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
3.1.4 Substance use disorder [SUD] services and mental health services were discussed with [J.A.] on several occasions during the shelter care period and during the dependency. These conversations were done in person, telephonically, by text message, and by emails that are exhibits in this trial. DCYF [Department of Children, Youth, and Families] made reasonable efforts to engage [J.A.] in these services on many occasions. SUD and mental health services were available and remain available to [J.A.] in the form of out-patient dual diagnosis treatment here in the Yakima Valley, and through in- patient services in both Eastern and Western Washington. [J.A.] was aware of the services and her awareness of them is set forth in her email conversations with her social worker, Kimberly Hawkins, in email exchanges in April of 2020 and June of 2020. [J.A.] has also expressed understanding of her service[s] to Ms. Hawkins in person, via text message and telephone conversations.
3.2.4 The court does not find that a psychological evaluation of [J.A.] is or was a necessary service. This service may have become useful if she engaged in services and had difficulty understanding or retaining the information. The court finds that if [J.A.] had participated in SUD and mental health services, she would have been able to remedy those parental deficiencies. The court finds that if she had become sober and addressed her mental health diagnosis with medicine management and therapy, she could have successfully engaged in parenting education and domestic violence services and been able to remedy those parental deficiencies. But the fact is that [J.A.] did not attend a single mental health therapy session. She did not engage in medicine management until after her November 2021 suicide attempt in the Yakima County Jail. [J.A.] attended SUD assessments, but she never followed a single recommendation. She did not successfully complete in-patient SUD services. She did not attend a single outpatient dual diagnosis treatment session.
CP at 182 (D.G.B.); CP at 407 (B.D.B.).
J.A. timely appeals.
17 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
ANALYSIS
WERE ALL REASONABLY AVAILABLE SERVICES OFFERED OR PROVIDED?
J.A. assigns error to the orders of termination and the conclusions of law quoted
above, but does not challenge a specific finding of fact. Appellant’s Opening Br. at 2.
She contends the court never ordered, and the Department failed to offer or provide, all
necessary services capable of correcting parental deficiencies, specifically, inpatient dual
diagnosis treatment. We disagree.2
2 J.A. assigns error to conclusion of law 3.2.4, quoted above. Although her statement of the case mentions that Ms. Hawkins did not refer her to a psychological assessment, no portion of the argument section in her brief addresses this issue. We decline to address this issue because it is not supported by argument. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987) (A party abandons an assignment of error if it fails to argue it in its brief.). Similarly, J.A.’s opening brief includes three discrete issues pertaining to her assignments of error. Appellant’s Opening Br. at 2-3. Her first two issues concern whether the Department offered or provided referrals for J.A. to obtain a Suboxone prescription and domestic violence treatment. Id. However, J.A. does not discuss or provide any argument on these two issues. See id. at 13-23. Instead, the entire argument section in her brief is devoted to the third issue: whether the court and Department offered and provided inpatient dual diagnosis treatment. Id. We decline to address the first two issues. An appellant must provide “argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.” RAP 10.3(a)(6).
18 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
Standard of review
“Parents have a fundamental liberty interest in the care, custody, and management
of their children.” In re Welfare of D.E., 196 Wn.2d 92, 102, 469 P.3d 1163 (2020)
(citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)
(plurality opinion)). To deprive a parent of this fundamental right is a two-step process.
In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). First, the Department
must prove the six termination factors set forth in RCW 13.34.180(1) by clear, cogent,
and convincing evidence. Id. If that is satisfied, the court then determines whether by a
preponderance of the evidence, termination is in the best interests of the child. In re
Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). Given the vital
interests at stake, the Department bears the burden of proof at termination trials. In re
Parental Rights to M.A.S.C., 197 Wn.2d 685, 698, 486 P.3d 886 (2021). We afford the
trial court great deference on review. In re Dependency of K.S.C., 137 Wn.2d 918, 925,
976 P.2d 113 (1999). Unchallenged findings of fact are verities on appeal. In re
Dependency of M.S.R., 174 Wn.2d 1, 9, 271 P.3d 234 (2012).
This court reviews a trial court’s decision on any of the six termination factors for
substantial evidence. In re Parental Rights to B.P., 186 Wn.2d 292, 313, 376 P.3d 350
(2016). The trial court’s findings “must be upheld if supported by substantial evidence
19 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
from which a rational trier of fact could find the necessary facts by clear, cogent, and
convincing evidence.” In re Welfare of M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510
(2008). Clear, cogent, and convincing evidence means “highly probable.” Id. The
reviewing court does not decide the credibility of witnesses or weigh the evidence. In re
Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991).
All necessary services were offered or provided
J.A. challenges the trial court’s conclusion on the fourth termination factor, which
requires the Department to prove that “all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided.” RCW 13.34.180(1)(d). A “necessary
service” is one that “‘address[es] a condition that precludes reunification of the parent
and child,’” often including mental health treatment, substance use treatment, and
relevant educational programming. In re Parental Rights to K.M.M., 186 Wn.2d 466,
480, 379 P.3d 75 (2016) (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793,
332 P.3d 500 (2014)).
The Department must tailor its offered services to the individual, requiring it to
identify a parent’s specific needs and provide services accordingly. In re Parental Rights
to I.M.-M., 196 Wn. App. 914, 921, 385 P.3d 268 (2016). For example, when a parent
20 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
has both mental health and chemical dependency needs, the Department must provide
integrated services. Id. at 922.
A parent’s persistent refusal to participate in a service can satisfy the Department’s
obligation under RCW 13.34.180(1)(d). M.R.H., 145 Wn. App. at 26. The Department
has offered all reasonable services when the record establishes that the further offer of
services would be futile. K.M.M., 186 Wn.2d at 483. The provision of services is futile
when a parent is unwilling or unable to benefit from an offered service within a
foreseeable time. Id.
J.A. first argues she needed inpatient dual diagnosis treatment but that the court
never ordered this service. This argument is without merit.
After J.A. stipulated to the dependencies of her children, and following each of the
four dependency review hearings, the court explicitly ordered her to participate in
substance use and mental health assessments and to follow any recommended treatments.
Once Barth Clinic recommended J.A. attend inpatient dual diagnosis treatment for her
substance use disorders and mental health, it became a court-ordered treatment.
J.A. next argues the Department failed to offer or provide inpatient dual diagnosis
treatment for her substance use disorder and mental health. J.A. cites I.M.-M. to support
her argument. There, we reversed an order of termination after concluding that the
21 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
evidence did not support the finding that all necessary services were offered. 196 Wn.
App. at 921-22. The Department was aware the mother in I.M.-M. had cognitive
impairments and chemical dependency needs, necessitating integrated services. Id. at
922. Despite this, the Department did not offer the mother integrated services. Id.
I.M.-M. is distinguishable from the facts here. First, no evaluation of J.A.
indicated she had cognitive deficiencies that would affect her ability to understand the
services offered to her. Second, as we discuss below, it is undisputed that the Department
offered inpatient dual diagnosis treatment to J.A., in addition to other forms of treatment.
Both Ms. Hawkins and J.A. testified to this fact and exhibits support their testimonies.
The trial court specifically found that Ms. Hawkins provided J.A. with information
about Sundown M Ranch, an inpatient, nondual diagnosis treatment facility, and
information about two inpatient dual diagnosis facilities:
2.3.30 Between June 8, 2020, and June 15, 2020 [J.A.] and [Ms.] Hawkins discussed inpatient treatment through email. [J.A.] stated a desire to enter inpatient treatment at Sundown M Ranch and had some questions about a referral to this program. Ms. Hawkins explained that a referral was not needed since health insurance will pay for this service and that all she needed to do is contact Sundown M Ranch to schedule an assessment and she provided [J.A.] their toll-free telephone number.
2.3.31 Ms. Hawkins also informed [J.A.] that Sundown M Ranch is not a dual diagnosis facility and that there are some on the Westside of the state. She asked if [J.A.] was still interested in going to a dual
22 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
diagnosis facility. [J.A.] asked if Ms. Hawkins was unable to find any dual diagnosis facilities near here—meaning Yakima Washington as that is where [J.A.] was residing. Ms. Hawkins replied by email with two in-patient dual diagnosis facilities that she was aware of: Inland Northwest Behavioral Health in Spokane and Cascade Behavioral Health in Tukwilla, Washington. She provided the telephone number for each of these facilities in her email of June 10, 2020. Ms. Hawkins also suggested [J.A.] could get an assessment at Triumph and they would assist her with getting into an in-patient dual diagnosis facility.
CP at 177 (D.G.B); CP at 402 (B.D.B.). Although these unchallenged findings are
verities on appeal, they are also supported by substantial evidence. Ms. Hawkins’s
e-mails to and from J.A. are evidenced by photocopies of the e-mail exchanges. Ms.
Hawkins testified consistent with the court’s findings. And J.A. testified that Ms.
Hawkins discussed the inpatient dual diagnosis programs at Inland Northwest Behavioral
Health and Cascade Behavioral Health and that she was willing to travel to attend such a
facility. J.A. also acknowledged that Ms. Hawkins gave her the phone numbers and
instructions on how to contact the two inpatient dual diagnosis facilities.
The trial court found that J.A. instead chose to enter treatment at Sundown, which
was not dual diagnosis treatment and that she left the facility without completing
treatment. Substantial evidence supports these findings, including J.A.’s and Ms.
Hawkins’s testimonies at trial.
23 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
The trial court also found that, prior to the resumption of the termination trial, J.A.
attended a substance use disorder assessment at Barth Clinic and had been offered
inpatient treatment. The court found:
2.3.18 . . . Barth identified three substance use disorders, amphetamine-type use, opioid use, and cannabis use disorders, all severe. Their recommended treatment was Level III.V, clinically managed high- intensity residential services. They indicated that [J.A.] was in the process of obtaining a bed date to begin those inpatient services. As of November 30, 2021, [J.A] had not entered into inpatient treatment.
CP at 176 (D.G.B.); CP at 401 (B.D.B.). Again, although these unchallenged findings are
verities, they are supported by substantial evidence. The diagnosis and recommendation
are evidenced by a letter from Barth’s clinical director and Ms. Servin to J.A.’s attorney.
Ms. Servin also testified that Barth recommended inpatient dual diagnosis treatment and
that she informed J.A. she needed to make daily contact with the clinic to set up a bed
date for inpatient treatment once she was released from jail. Ms. Servin testified that J.A.
failed to make daily contact and, as a result, failed to obtain a bed date for treatment.
These examples of treatment being recommended and J.A. failing to follow
through on recommendations support the trial court findings that:
2.3.57 Throughout the case Ms. Hawkins has recommended both substance use disorder treatment and mental health treatment and she has discussed these services with [J.A.]. Ms. Hawkins stated that these two services are critical for [J.A.] to be able to safely parent her
24 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
children. It is also clear from her testimony that this can be done through both inpatient and outpatient dual diagnosis treatment or by simultaneously engaging in SUD treatment with one provider and mental health services through another provider, as long as the parent signs the appropriate releases of information so the providers can communicate effectively while delivering these services.
2.3.58 Based on [J.A.]’s inability to complete all recommended phases of her SUD treatment in her prior dependencies, and her inability or unwillingness to engage in SUD treatment during the twenty-one months of this dependency case, Ms. Hawkins believes it is very unlikely that [J.A.] will be able to remedy this parental deficiency in the near future. [J.A.] has a history of stating she wants to get into treatment, or she takes the initial steps of the SUD assessments, but then fails to follow through on those recommendations.
CP at 180 (D.G.B.); CP at 405 (B.D.B.). Substantial evidence supports these findings,
and they support the trial court’s conclusion the Department met its burden to prove by
clear, cogent, and convincing evidence that it offered or provided all necessary services,
reasonably available, capable of correcting the parental deficiencies.
Also, Ms. Scott testified she first discussed substance use and mental health
assessments and services with J.A. in March 2020, when the dependencies were filed, but
that J.A. declined the services. At the shelter care hearing, Ms. Scott again offered
services to J.A.
25 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
In addition, Ms. Hawkins testified that she discussed and referred J.A. to substance
use disorder and mental health assessments in March and April 2020. She explained that
J.A. attended the initial substance use assessment but failed to return for her results.
Ms. Hawkins testified about her e-mail with J.A. about inpatient treatment at
Sundown and the two options for inpatient dual diagnosis treatment. Ms. Hawkins
testified that she met with J.A. and discussed referrals to court-ordered treatment,
including substance use disorder treatment again in August 2020. But, after J.A. visited
with her children on September 8, 2020, Ms. Hawkins had no communication with her
until April 2021. During this time, per Department policy, Ms. Hawkins checked the jail
roster weekly for J.A.’s name and sent J.A. letters, calls, texts, and e-mails, to no avail.
There is no evidence that J.A. engaged in any court-ordered treatment during this time
period.
After the extended period without contact, Ms. Hawkins testified that she again
discussed substance use disorder and mental health services at a June 2021 meeting
attended by J.A. And prior to the termination trial in September 2021, Ms. Hawkins
again discussed dual diagnosis treatment with J.A. after she asked the court about a dual
diagnosis program during a pretrial hearing. Ms. Hawkins texted J.A. after she left the
26 No. 38924-3-III; No. 38925-1-III Parental Rights to D.G.B. and B.D.B
courtroom to inform her about another inpatient treatment provider, Evergreen Treatment
Services, and how to access treatment there.
Ms. Hawkins testified that she again discussed dual diagnosis treatment at
Evergreen with J.A. again after the first termination trial date in September 2021. She
informed J.A. that she did not need a referral for the treatment but that she needed to
complete a new substance use disorder assessment. Ms. Hawkins provided J.A. with
names of places to get the assessment, and J.A. chose to go to Barth.
Further, Ms. Servin testified that she conducted substance use disorder assessments
of J.A. twice and that she recommended high intensity, dual diagnosis inpatient treatment.
Ms. Servin informed J.A. that she needed to keep in daily contact with the clinic to secure
an inpatient treatment bed date but confirmed that J.A. failed to make daily contact with
the clinic.
We conclude that substantial evidence supports the trial court’s decision that the
Department met its burden to prove it offered or provided all necessary services,
reasonably available, capable of correcting J.A.’s parental deficiencies, including
inpatient dual diagnosis treatment.
27 No. 38924-3-111; No. 38925-1-111 Parental Rights to D.G.B. and B.D.B
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
-5~ ,.::r. Fearing,i,O Staab, J.