### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Dependency of No. 79370-5-I (consolidated with D.W.H. (DOB: 04/27/2014), No. 79371-3-I) J.C.W. (DOB: 09/03/2015), DIVISION ONE

Minor children. UNPUBLISHED OPINION LISA HARRISON, Appellant,

V. STATE OFWASHINGTON, DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, FILED: January 13, 2020

Respondent. DWYER, J.

— Lisa Harrison appeals the termination of her parental rights to hersons D.W.H. and J.C.W. She argues thatthe Department ofChildren, Youth and Families failed to prove that it provided all necessary and reasonably available services to her because the services were nottailored to her cognitive and intellectual disabilities. We affirm.No. 79370-5-1/2

D.W.H. and J.C.W. were born to Harrison in 2014 and 2015, respectively.1 Both children have special medical needs. D.W.H. presents “a moderate level of autism spectrum related symptoms.” He has a speech delay, sleep apnea and asthma, which requires medication on a specific dosing schedule. J.C.W. has dysphagia, a condition that makes swallowing difficult. He is unable to drink liquids by mouth because ofthe likelihood he will aspirate the liquid into his lungs. He has a gastrostomytube in his abdomen through which he receives liquids. J.C.W. also has some developmental delays and behavior challenges. The Department became involved with Harrison in early 2016, when it received reports that both children were left alone for long periods with minimal interaction orsupervision, that Harrison failed to get care forthe children’s developmental delays, and that Harrison’s home was so dirty and cluttered that it presented a safetythreat. The Department offered Family Preservation Services, an in-home counseling service, to help Harrison obtain stable housing, get help with her mental health, and learn parenting skills. Harrison was initially motivated, but afterthe first month she began cancelling orfailing to show up for counseling sessions. Bythe third month, she had dropped out entirely. The Departmentfiled a dependency petition and ajuvenile court removed D.W.H. and J.C.W. In theirfoster home, the children would eat until theythrew up and D.W.H. would forage through garbage cans looking forfood.

1 During the dependency proceedings, Harrison gave birth to athird child, A.H. A juvenile courtalso removed A.H. from Harrison’s care. A.H. is nota subjectofthese termination proceedings. 2No. 79370-5-113 Harrison signed an agreed orderestablishing that D.W.H. and J.C.W.
were dependent children. The order allowed Harrison supervised visits with the children and required Harrison to undergo a psychological evaluation and submit to random urinalysis testing.2 A Department social workeralso set Harrison up with Project SafeCare,
an intensive in-home parenting training program that covers three modules: (1) child health and injury, (2) appropriate parent-child interaction, and (3) home safety. Project SafeCare therapistTamas Mihaly began working one-on-one with Harrison in December2016. But Mihaly had extreme difficulty scheduling with Harrison, who ignored his phone calls ortold him she was too busyto talkto him. According to Mihaly, each module requires at leastfive orsixweeks ofweekly sessions. Harrison attended only an introductory appointment in December, one session in January, and one session in February. Harrison did not progress in the Project SafeCare curriculum because she cancelled a great numberof sessions. Mihalyterminated Harrison’s participation in the program. Dr. Tatyana Shepel conducted Harrison’s psychological evaluation in early 2017. She administered psychological testing, observed a visit between Harrison and the children, and conducted a clinical interview. During the parent-child visit, Dr. Shepel observed that Harrison interacted positively and affectionatelywith D.W.H. and J.C.W. Butthe psychological testing revealed that Harrison had very poor reading comprehension and herworking memorywas “normatively

2 Harrison successfully completed the urinalysistesting requirement. There is no evidence in the record thatsubstance abusewas a parental deficiency. 3No. 79370-5-1/4

impaired, betterthan onlythree percent of adults in herage group?’3 And during the clinical interview, Harrison was dismissive ofthe Department’s concerns regarding the children’s developmental delays. She exhibited “very little insight into what happened tothe children whiletheywere in hercare and whythey required such intensive medical and mental health interventionsto address their delays.” Dr. Shepel diagnosed Harrison with attention deficit hyperactivity disorder (ADHD) and personalitydisorder not otherwise specified with dependent personalitytraits. She concluded thatADHD wasthe principal basisfor Harrison’s parental deficiencies. I did see in the history periods of short improvement, brief engagement of services, and then avoidant behaviors, inabilityto maintain the consistencyofvisitations, mental health appointments and otherappointments. Sothis is typical for people with ADHD, because part ofthe ADHD diagnosis is executive functioning impairment, which is, ifyou thinkabout executive functioning, that’s higher levels offunctioning, mental cognition, and person is ableto organize and executive [sic] steps and achieve goals, ratherthan be impulsive, destructive, and having multiple excuses as to why theycouldn’t precede with the plan. So for people with untreated ADHD, it’sverytypical theycan shortly, brieflyengage, work, family obligations, education, butthen they reverseto previous dysfunctional disorganization and dysfunctional patterns. Dr. Shepel’s primary recommendation was that Harrison see a psychiatrist to treat herADHD, which would improve Harrison’s attention span, focus, and “abilityto followthrough on complextasksthat require sequence of steps.”4 Second, Dr. Shepel recommended intensive mental health counseling—

~ Dr. Shepel explained that “working memory” is the abilityto both retain information and later usethat information in some way.

~There is no evidence in the record that Harrison ever received psychiatrictreatmentfor ADHD. Harrison testified attrial that she was taking an unspecified medication for PTSD symptoms. 4No. 79370-5-1/5

specifically, dialectical behavioral therapy (DBT)—to help Harrison learn coping skills and take responsibilityfor her life choices. Third, Dr. Shepel recommended Harrison workwith a life skills coach to learn howto manage household responsibilities and be on time forappointments. Finally, Dr. Shepel recommended Harrison receive parenting skills training. According to Dr. Shepel, the parenting skills training should be offered one-on-one ratherthan in a group setting because Harrison needed lots of repetition to ensure that she was retaining the information. Again, with a parentwith similarto Miss Harrison’s neurocognitive makeup, such as attention deficit hyperactivity disorderand educational needs for reading comprehension, just by being in a group format in a class due to poorworking memory, there is a chance ofmissing out on important information, not understanding complex concepts, and also not being able to read complex reading material that is

—typically, there are handouts or PowerPoint presentations. So one-on-one training would ensure comprehension of instructions, repetition and rehearsal, and the professional is able to check if Miss Harrison did in fact retain information, and ifshe’s able to apply new information in her parenting. Dr. Shepel concluded that Harrison’s prognosis was “guarded” because of the severityand chronicity of herADHD, and because personality disorders are very difficultto treat. Following Dr. Shepel’s evaluation, the Department again referred Harrison for parenting skills training with Project SafeCare. Therapist Parzival Popof began working with Harrison in April 2017. As before, Harrison frequently cancelled the sessions. Consequently, Popofspent much ofthe time reviewing material that Harrison forgot in the weeks between sessions. Harrison ultimately

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completed the curriculum, but ittook her nine months, which Popofdescribed as an “unusually long” time. From early2017 until June 2018, D.W.H. and J.C.W. attended Childhaven, a developmental preschool forchildren who have suffered abuse or neglect. During thattime, Harrison was able to frequentlyvisit Childhaven and receive hands-on parent coaching there. Sarah Kier, a Childhaven family therapist, testified thatshe coached Harrison on howto focus on the children’s needs and ensure theirsafety. She also provided Harrison a great deal of emotional support so that Harrison did not become overwhelmed and anxious around the children. Kier met one-on-one with Harrison multiple times a week, both in person and overthe phone. She testified that, despite this level of support, she did not believe that Harrison was capable of handling the children unsupervised. In November2017, Harrison began participating in individual mental health counseling, DBT group therapy, and a domesticviolence group at Navos Mental Health. Christine Peterson, Harrison’s individual mental health counselor, reviewed and considered Dr. Shepel’s evaluation regarding Harrison’s needs and limitations. But by May2018, Harrison stopped attending counseling sessions with Peterson. Though Peterson frequentlytalked to Harrison on the telephone, trying to determine what barriers kept herfrom attending, Peterson never returned to counseling. In February2018, the Department referred Harrison to John Pringle, a Family Preservation Services provider, for life skills training. The Department

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notified Pringle that Harrison ‘exhibits impairment in executive functioning, selfmonitoring, planning and sequencing.” Pringle metweeklywith Harrison to work
on skills like budgeting and scheduling. Pringle suggested Harrison get a calendarso she could keep track of herappointments. Eventually, Harrison obtained one, butwould still sometimes cancel meetings with Pringle atthe last minute. During meetings she did attend, Harrison got distracted by her cell phone orsidetracked with various grievances againstthe Department. Afterthree months ofwork, Harrison did not make significant progress in the area of life skills. The Department requested Pringle workwith Harrison for anotherthree months, and to introduce parent coaching at Harrison’s supervised visits. This time, the Department social workerwrote on the referral form: Instructions should be simplified, sequenced, and repeated to ensure comprehension. Mother has limited attention and moderate neurocognitive deficits and dependent personalityfeatures. Pringle observed that Harrison was unable to focus on more than one child at a time and frequently losttrack ofwhere theywere. Pringle coached Harrison on how she could improve herabilityto supervise them. But Harrison told Pringle “she didn’t need [his] program or [his] assistance because she thoughtshewas doing everything correctlyfor her kids.” Aftersix months, Pringle’s agency declined to workwith Harrison anymore due to her lack of progress. The Department filed a petition to terminate Harrison’s parental rights to D.W.H. and J.C.W., alleging thatthe children were “at risk of neglect in her care due to herongoing mental health concerns and lack of understanding ofthe

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needs of her children.” While the trial was pending, the Department continued to offerservices to Harrison. In November2018, the Department referred Harrison to Simone Walcottfor hands-on parent coaching. Priorto meeting with Harrison, Walcott reviewed Dr. Shepel’s evaluation. Walcotttestified that she would observe Harrison’s supervised visits, provide suggestions and feedback, and then call Harrison in between the visits in orderto further review Harrison’s skills. Despite the factthat Harrison had several rounds of parent coaching, Walcott still observed safety concerns atthe visits. Forexample, the children repeatedly climbed on top offurniture and J.C.W. grabbed a water bottle and tried to drink from it. The visit supervisor had to intervene to take the water bottle away and remind Harrison to do so. Harrison also required multiple prompts before she would change the children’s diapers. Atermination trial took place overthe course offive days in December 2018. Atthe time ofthe trial, D.W.H. was approximatelyfourand a halfyears old and J.C.W. was approximatelythree and a halfyears old. They had been out of Harrison’s care fortwo and a halfyears. The trial court reviewed 41 exhibits and heard the testimony of 16 witnesses, including the mother, Dr. Shepel, the court appointed special advocate, three Department social workers, Mihaly, Popof, Pringle, Peterson, and Wolcott. The trial court entered findings offact, conclusions of law, and an orderterminating Harrison’s parental rights.5 Harrison appeals.

~The parental rights ofthe children’s fatherswereterminated by separate orderand are notat issue in this appeal. 8No. 79370-5-1/9

Parents enjoyfundamental liberty interests in the continued care, custody, and companionship oftheir children. Santoskyv. Kramer, 455

## u.s. 745, 753, 102 S. Ct. 1388, 71 L.Ed. 2d 599 (1982). Termination ofthe parent-child relationship involves a two-step process. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). First, the Department must prove the sixtermination factors setforth in RCW 13.34.180(1) by clear, cogent, and convincing evidence.

~ 168 Wn.2d at 911-12. One ofthese factors is whetherthe Department has provided all the services ordered as part ofthe dependency proceedings, as well
as “all necessary services, reasonably available, capable ofcorrecting the parental deficiencieswithin the foreseeable future.” RCW 13.34.180(1)(d). Ifthis burden is satisfied, the court must alsofind by a preponderance ofthe evidence thattermination is in the best interests ofthe child. RCW 13.34.190; In re Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). Where, as here, the trial court has weighed the evidence, appellate review is limited to determining whethersubstantial evidence supports the court’s findings offact and whetherthose findings support the court’s conclusions of law. In re Dependency of PD., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). unchallenged findings offact are verities on appeal. In reWelfare ofA.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015). Challenged findings will be upheld “[i]f there is substantial evidence which the lowercourt could reasonably have found to be clear, cogent and convincing.” In reWelfare ofAschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). Clear, cogent, and convincing evidence exists when

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the ultimatefact in issue is shown to be “‘highly probable.” In re Dependency of T.L.G., 126 Wn. App. 181, 197, 108 P.3d 156 (2005) (quoting In re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998)). We defer to the trieroffact on issues ofconflicting testimony, credibility ofthe witnesses, and theweight or persuasiveness ofthe evidence. In re Welfare ofS.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011). Such deference is particularly important in proceedings affecting the parent and child relationship because of“the trial judge’s advantage in having the witnesses before him or her.” A.W., 182 Wn.2d at 711. Ill Harrison argues thatthe Departmentfailed to prove that it offered or provided herall reasonably available, necessary services because it did nottailor those services to accommodate her neurocognitive limitations. The Department has a statutory obligation to provide all the services ordered bythe permanency plan, as well as “all necessaryservices, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future.” RCW 13.34.180(1)(d); In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016). The services offered must be specificallytailored to the parent’s unique needs. In re Dependency ofT.R., 108 Wn. App. 149, 161,29 P.3d 1275 (2001);
~, 162 Wn. App. at 881. To accommodate Harrison’s ADHD and poorworking memory, Dr. Shepel recommended that parenting skills training be provided one-on-one so thatthe provider could ensure Harrison was understanding the information and repeat

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information if necessary. Contraryto Harrison’s claim, the Department did so. All of Harrison’s parenting instruction was provided one-on-one. While several of Harrison’s service providers testified Harrison was easily distractible, none of them stated that she appeared to have difficulty understanding the information provided. Mihalytestified that he did not usewritten materials with Harrison, and that he devoted moretime than he typicallywould have to tryto get Harrison to meetwith him. Popoftestified that he went overthe material with Harrison multiple times, and that if Harrison missed sessions, he made sure to review whatthey had discussed previously. Kier provided individualized hands-on support and coaching when Harrison visited the children at Childhaven. And Wolcott also provided concrete, hands-on coaching atvisits and called Harrison in between visits to reviewthese suggestions. The record does notsupport Harrison’s claim thatthe Department failed to providethe type of parent coaching recommended by Dr. Shepel. But even ifthe Department had failed to offerservices to accommodate Harrison, the record demonstratesthat additional services would not have corrected Harrison’s parental deficiencies in the foreseeable future. Termination is appropriate “even where the State inexcusablyfails to offer a service to a willing parent.

. . ifthe service would not have remedied the parent’s deficiencies in theforeseeable future, which depends on the age ofthe child.” 

### [fi~, 108 Wn. App. at 164. This means thatwhen the record establishes that an offer of services would have been futile, the trial court can make a finding thatthe

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Department has offered all reasonable services. In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008). Here, the trial courtfound thatthe children, due to theirage, were unable to conceive ofthe future beyond about seven days. Harrison does not specifically challenge this finding and it is a verity on appeal. And even aftertwo years of hands-on parenting coaching, Harrison could not have safely cared for the children without supervision and support. The evidence indicates that additional serviceswould not have remedied Harrison’s deficiencies in the foreseeablefuture forthe children. Substantial evidence supports the trial court’s finding that providing additional serviceswould be futile. Harrison compares this case to In re Dependency of I.M.-M., 196 Wn. App. 914, 385 P.3d 268 (2016). In I.M.-M., the children were removed from their motherdue to hersubstance abuse. The dependency petition noted thatthe mother had low cognitive functioning and was described as “DD.” The mother
was ordered to participate in a psychological evaluation, which revealed that she
was “significantly cognitively impaired” with an IQ “lowerthan 91 percent of individuals herage”, raising “concerns about her.

. . abilityto hold ajob, pay bills, [and] take care of herself.” l.M.-M., 196 Wn. App. at 918. The evaluation suggested the motherwould “be slowto grasp information and would require repetition in orderto learn newskills.” I.M.-M., 196 Wn. App. at 918. The psychologistwho performed the evaluation believed the mother’s impairments would not be readily apparent to service providers because she “demonstrated strong street smarts and had become very good at reading social cues and

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presenting herselfsocially in awaythat probably masks her intellectual deficits.” l.M.-M., 196 Wn. App. at 918 (internal quotation marks omitted). The psychological evaluation was nevershared with the motheror herservice providers. The motherstruggled to make progress in services “even while dutifullyshowing up for most appointments” and her parental rights were terminated. l.M.-M., 196 Wn. App. at 928. Division Three ofthis court held that the Departmentfailed to provide all necessary services as required by RCW 13.34.180(1)(d) because the Department did notthoroughly investigate the mother’s unspecified developmental disability nortailor its services to her apparent needs. l.M.-M. is distinguishable. Here, Dr. Shepel reached a specific diagnosis: ADHD. Harrison’s providers had either received Dr. Shepel’s report orwere otherwise aware that Harrison would benefitfrom a hands-on approach to learning. Moreover, unlike the parent in l.M.-M., Harrison’s participation in services was often unenthusiastic and she frequently cancelled appointments. Forthe firsttime on appeal, Harrison argues thatthe Department did not meet its burden to offer or provide services because it did not consultwith the Developmental Disabilities Administration (DDA) to determine ifshewas eligible for DDA services. RCW 13.34.136(2)(B) provides that “[i]fa parent has a developmental disability according to the definition provided in RCW71A.10.020, and that individual is eligible forservices provided bythe department ofsocial and health services developmental disabilities administration, the department shall make reasonable effortsto consultwith the departmentofsocial and health

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services developmental disabilities administration to create an appropriate plan forservices.”6 But Harrison did not raise this issue below. Consequently, there is no evidence in the record regarding the Department’s efforts or Harrison’s eligibility. The record is thus insufficient to permit meaningful review ofthis claim. Affirmed.

WE CONCUR: 

# 1

# ),AL L

6A “developmental disability” is “a disability attributable to intellectual disability, cerebral palsy, epilepsy, autism, oranother neurological orothercondition ofan individual found bythe secretary to be closely related to an intellectual disability orto require treatment similarto that required for individuals with intellectual disabilities, which disability originates before the individual attains age eighteen, which has continued orcan be expected to continue indefinitely, and which constitutes a substantial limitation to the individual.” RCW71A.1O.020(5). 14