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

In the Matter ofthe Dependency of ) ) No.76150-1-1 D.F.-S., DOB:03/29/2004, ) ) ) DIVISION ONE Minor Child. ) UNPUBLISHED OPINION

) STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND ) ) HEALTH SERVICES,

Respondent, )

) ) - 4 >p". V. ) ) •; ) Mai D> ru (1) 111 L.S., ) ) Appellant. ) FILED: October 2,2017 cn

) 

### TRICKEY, J. — Following successive dependencies during which L.S. made little progress with services,the superior court terminated his parental rights to his son, D.F.- S. L.S. appeals, arguing the Department of Social and Health Services (Department) failed to satisfy the statutory prerequisites to termination. Because the Department met its burden,we affirm. FACTS Pretrial History L.S. is the biological father of D.F.-S, born March 29, 2004. In 2005, the Department learned that D.F.-S.'s parents left him with inappropriate caregivers. His mother voluntarily engaged in services and D.F.-S.was returned to her care. In 2007, the Department learned that D.F.-S.'s parents were leaving him unsupervised and thatdrug chargeswere pending againstL.S. The DepartmentremovedNo. 76150-1-1 / 2

D.F.-S.and the parents entered agreed orders ofdependency. The order relating to L.S. required him to participate in parenting classes, a substance abuse evaluation, and random urinalysis (UAs). He participated in a substance abuse evaluation but by 2009

was no longer complying with services. The court dismissed the dependency, however, because D.F.-S.'s mother made sufficient progress to return him to her care. In July 2013, the Department again removed D.F.-S. because his parents had abandoned him. A family friend who retrieved D.F.-S.described the home as "filthy with catfeces...and spoiled food and garbage on thefloors and counters." The Department filed and served another dependency petition. L.S., however, did not participate in the early stages of the proceedings. He told the Department he was mourning the death of his eldest son "and could not care for [D.F.-S.]"2 In September 2013, the court entered default orders of dependency as to both parents. The order relating to L.S. alleged in part asfollows: 2.The mother and father continue to show a pattern of relapsing and being inconsistent in the child's life. The current caregiver reports that this is the fifth time that she has had [D.F.-S.] in her care and that each time he becomes more withdrawn and detached. She further describes him as "desensitized" to the absence of his parents and increasingly unaffectionate. In addition to the vulnerability that his age presents, [D.F.- S.'s] primary caretaker, his brother Brandon Williams, was shot and killed in May,2013. 3.The mother and father have extensive Child Protective Services (CPS) history. . . . • •

•

Clerk's Papers (CP)at 272(Findings of Fact(FF)2.3.3). 2 CP at 273(FF 2.4). 2No.76150-1-1 / 3

5. On 7/3/13,[L.S.]told the Department that he was in mourning and could not care for his son at this time. [He]has not seen his son since 6/12/13. [He]did not deny his current use of crack cocaine. 6. On 7/8/13, [the mother] attended a Family Team Decision Making Meeting (FTDM). . . . Mother refused to do a UA and later admitted to actively using crack cocaine.[L.S.]did not attend the FTDM. 7. [The parents] pattern of behavior shows a serious disregard for the consequences to [D.F.-S.] of such magnitude that it creates a clear and presentdanger to the child's health,welfare and safety.Thefamily situation results in no adults in the home performing child [c]are duties and responsibilities to assure the child's safety.13] The order required L.S. to complete a drug and alcohol evaluation "within 30 days" and follow any recommended treatment,submitto random UAs,and schedule a psychological evaluation with a parenting component "within 30 days" and initiate all recommended treatment "promptly." During the following two and a half years, dependency review and permanency planning orders indicated that L.S.was not complying with services or making progress. In February 2015, L.S. entered the King County Jail on a charge of possessing cocaine. In June 2015, he pleaded guilty and remained in the jail until his transfer to the Washington Corrections Center in Shelton in October 2015. In December 2015, the Department transferred him to the Cedar Creek Correctional Facility. He is eligible for work release in June 2018. In March 2016,a permanency planning order indicated that L.S. had completed a drug/alcohol assessment while incarcerated.

3 Ex. 1 Ex. 1.No.76150-1-1 /4

In April 2016, the Department filed a petition to terminate both parents' parental rights. The petition alleged that neither parent had complied with service requirements or remedied their parental deficiencies. Trial commenced in October 2016. Trial Testimony Social worker Alyssa Livingston testified that she was assigned to D.F.-S.'s dependency in thefall of2013. According to Livingston,the parents,who were homeless, abandoned D.F.-S.at a funeralfor L.S.'s eldest son and "disappeared for weeks"without leaving any contact information.5 Livingston testified that L.S. did not appear at the initial Family Team Decision Making meeting. The mother attended the meeting and admitted that she and L.S.were using crack cocaine. L.S.did not contact Livingston until April 2014. Livingston provided him a copy of the dependency order and tried to explain his services and visitation rules. L.S. angrily threw the dependency order at Livingston and said "that essentially he wasn'tgoing to do anything and he felt like this was unnecessary."6 He then "stormed out ofthe room and returned only to sign the visitation rules.7 Livingston testified that she offered L.S. his court -ordered services, but he "was not interested in doing UAs or a psychological evaluation. The only thing he was interested . . . in doing [was]the drug and alcohol evaluation."5 Livingston said she stressed "the importance of keeping in communication

5 2Report of Proceedings(RP)at 164. 62RP at 156. 7 2RP at 156. 8 2RP at 174-75. 4No. 76150-1-1 /5

so that [she would] know what services they might be doing and . . . so we can do visitation" but the parents left invalid contact information.9 L.S. "didn't remain in contact"
or engage in any services." When asked if L.S.ever contacted heraftertheir initial meeting,Livingston said he

came by on anotheroccasion and told her hewould getan alcohol evaluation atthe Indian Health Board. "[B]ut beyond that there was no conversation or anything about him following through with the recommended services."11 Livingston and L.S. agreed that since no referral was necessary for the Indian Health Board service, L.S. would initiate that service on his own and notify Livingston when it was completed. Livingston did not believe L.S. could safely parent D.F.-S.without addressing his substance abuse. Livingston testified that L.S. only requested one visit with D.F.-S. while she was assigned to the case. Thatvisit occurred in May 2015. Pamela Rago,the second caseworkerassigned to D.F.-S.'sdependency,replaced Livingston in September 2015. At that time, L.S. was incarcerated in the King County Jail. Rago testified that none of his court-ordered services were available in the jail, but she did arrange a visit with D.F.-S. When L.S. moved temporarily to the Washington Corrections Center in Shelton in October 2015, Rago sent him service letters and copies of the dependency and dependency review orders. She continued to send him service letters when he moved to

9 2RP at 161. 10 2RP at 163. 11 2RP at 158. 5No. 76150-1-1/6

the Cedar Creek Corrections Center in December 2015. The letters listed the offered services and the status of D.F.-S. and the court proceedings. Shortly after L.S. arrived at Cedar Creek, Rago contacted the Department of Corrections (DOC)about providing him with court-ordered services and visitation. DOC agreed to perform an alcohol and drug assessment. Although DOC would not perform the psychological evaluation, it authorized the Department to bring in its own evaluator. DOC also indicated it would not perform UAs until a few months before L.S.'s release. In February 2016, DOC performed a chemical dependency assessment and concluded L.S. suffered from alcohol and cocaine dependence. The substance abuse recovery unit supervisor recommended that he receive level 3.5 inpatient treatment. It is undisputed that level 3.5 treatment is not available at DOC,that Cedar Creek only offers up to level 2.1 treatment, and that level 3.3 treatment was available in another DOC facility.In a letter dated February 25, 2016, Rago updated L.S. on the status of his services: I understand that you have already had your Drug and [A]lcohol assessment. I have been in contact with your attorney and have given her two contracted professionals who may possibly be able to do your Psychological Evaluation. I have contacted other providers but they do not want to travel to Cedar Creek. I will be requesting your Drug and Alcohol assessment from the Public Records Officer/Public Disclosure Unit/ Department of Corrections once I receive the Consentform back from you. I am enclosing the consent form for you to sign and have enclosed a postage paid envelope for you to mail it back to me.[12]

12 Ex. 26. 6No.76150-1-1 /7

On March 8,2016,Rago sent the signed consentform to DOC and requested a copy of L.S.'s chemical dependency assessment. By letter dated May 10, 2016, Rago again updated L.S. on her efforts to provide him services: I received your Chemical Dependency evaluation from DOC and sent your attorney a copy.According to the evaluation the recommendation is for you to participate in 3.5 Clinically Managed High-Intensity Residential Services. I contacted DOC on 4/14/16 to inquire if the DOC would be able to provide you with this service while you are at Cedar Creek and was informed that the DOCdoes not provide level 3.5 services in any oftheirfacilities and you will need a referral to a residential treatment program when you are released from prison. Your attorney and I have agreed upon a provider to conduct your psychological evaluation with a parenting (measure) component. I will be making that referral shortly.(131 On May 20,2016,Rago wrote a referral to Dr. Steve Tutty,who in turn scheduled

a psychological evaluation at Cedar Creek for July 2016. The evaluation eventually took place in early August 2016. Rago testified that D.F.-S. initially agreed to speak with L.S. by phone so she put money in L.S.'s accountto payfor phone calls. D.F.-S.soon changed his mind,however, and declined further contactwith L.S. Rago testified that D.F.-S. is adoptable and could not be reunited with L.S. in the foreseeable future, especially given D.F.-S.'s desire to not have contact with his father. Rago stated that D.F.-S. "deserves to know what the next step is. He's in middle school. He's starting to think about college,what his plans are for the future and if there was. . .

13 Ex. 26.No. 76150-1-1 /8

possible reunification throughoutthe time it's a very vulnerable time in a young teenager's life.”14 Rago concluded that termination was in L.S.'s best interests. On cross-examination, Rago conceded she did not ask the King County Jail whether itwould provide court-ordered services but said itwas her understanding thatthe jail would not. She also conceded she did not ask DOC if UAs could be performed by
someone otherthan DOC personnel. Rago denied receiving any requestfrom L.S.or his attorney for family counseling services. She conceded she never offered such services, but explained it would not be effective since D.F.-S. did not want to have contact with L.S.: "1 believe that the child needs to want. . .family counseling in order for it to be effective so he would be able to participate fully."15 If one family member does not want to be in family counseling,"[n]o progress is being made,it's one-sided."16 Deborah Turner, the Court Appointed Special Advocate (CASA) for D.F.-S., testified that termination was in his best interests. She noted that D.F.-S. wanted to live with hisfoster parents,not L.S. She concluded L.S.was incapable ofproviding adequate

care for D.F.-S., stating: I don't believe that[L.S.]understands the very basic need ofa child to have consistency or structure . . .from the parent in his life. And I don't get the sense that [L.S.]comprehends the damage to [D.F.-S.]that has comefrom his life choices and the neglect and abandonment in this case. I don't think

...he hasthe maturityto parent[D.F.-S.]through some ofthe difficulttimes, the psychological and emotional journey that he has and will have to go through.And even just an adolescent and a teenager.(171

143 RP at 290-91. 15 3RP at 322-23. 16 3RP at 322. 17 3RP at 344-45. 8No. 76150-1-1 / 9

She added that D.F.-S. "deserves to be able to live in the present and in the future and know what's going to happen. And I think he deserves the life that comes from knowing that you're going to be safe, that you're going to have reasonable expectations and . . . responsibilities as a part of a family."18 Dr. Tutty testified that he performed L.S.'s psychological evaluation at the Cedar Creek facility in August 2016. Dr. Tutty diagnosed L.S. with amphetamine and alcohol

use disorders and paranoid personality disorder. Testing showed L.S. at high risk to negligently "endanger the child's safety and welfare."19 When asked if L.S. could safely parent D.F.-S., Dr.Tully stated that "the risk factors are just too high in this case."2° He testified that L.S. "does not appear to be amenable to treatment" of any kind due to his "high levels ofparanoia,his history ofrecidivism,[and]his lack ofinsight and judgment."21 He believed reunification could not be considered until L.S. completed intensive residential chemical dependency treatment and demonstrated sobriety for at least 18 months following his release. Dr. Tutty pointed to drug use literature indicating that the risk of relapse drops significantly when sobriety lasts 12 or more months. Dr. Tully also recommended counseling for personality disorder by someone skilled in cognitive behavioral therapy (CBT)and interpersonal treatment, a parent coach to improve the bond between L.S. and D.F.-S. "[i]f the Department elects to proceed with reunification

18 3RP at 346. 192 RP at 197. 202 RP at 199-200. 21 2RP at 200,208. 9No.76150-1-1 /10

upon [his] release," and completion of "the Triple P program" upon release given L.S.'s "high child abuse risk. ..and the neglect surrounding his currentdependency."22 On cross-examination, Dr. Tutty testified that L.S.'s responses during testing did not show rigidity in his definition of the parent role. They also did not show tendencies toward corporal punishment or excessive restriction of children's independence. The testing showed no deficits in problem solving or decision-making. Mental health therapist Mollie Wirtztestified that D.F.-S.'sfoster parents asked her to provide therapy for D.F.-S. in the fall of 2015. They met 18 times over the next year. D.F.-S.was notwilling to talk abouthisfatherduring theirsessionsand expresslydeclined

an offer to facilitate monthly phone calls and visits with his father. Wirtz conceded she

never asked D.F.-S. if he wanted family therapy to repair his relationship with his father. She testified, however,that successfulfamily therapy would "require the child. . .to have

some buy-in."23 Karen Lavoie, the chemical dependency contractor who performed L.S.'s assessment at DOC, testified that the level 3.5 treatment she recommended for L.S. included sober support groups. While she did not recall telling L.S. that such support groups were part of the treatment, her written assessment form included that recommendation and she checked a box on the form indicating L.S. "had been informed ofthe assessment and the results."24 Lavoie testified that she would have gone over the

22 Ex 24. 231 RP at 51. 24 2RP at 122. 10No.76150-1-1 / 11

form with L.S. before checking that box. When asked if L.S. was willing to attend sober support groups, Laovie said,"only if it was a requirement."25 L.S.'s DOC classification counselor, Susan Erickson, testified that in September 2106, Cedar Creek requested his transfer to a DOC facility offering level 3.3 treatment. Because the termination trial was imminent, Erickson decided a transfer should awaitthe end oftrial so that a counselorfamiliar with L.S. would still be on board during the tria1.26 L.S.testified and admitted having four priorconvictionsforpossession ofcontrolled substances. He stated that he had voluntarily entered treatment three times over the years but had never completed treatment. He conceded he had not participated in Alcoholics Anonymous or other support groups at Cedar Creek. He denied knowing that his court-ordered services included random UAs. L.S. stated he was pursuing his general education diploma and planned to get a stable job and stable living situation upon his release. He thought itwould take "[a]t least

a year"to accomplish those goals after his release.27 When asked if he was essentially "asking for temporary placementfor. . .the nextthree years while you have two years to complete yoursentence ...and then another year before you can getyour living situation together," L.S. said,"Yes."28 When asked if he completed any services during the earlier dependency,L.S.conceded he had notand claimed the courtdid notask him to complete any services.

252 RP at 122. 26 1 RP at 57. 27 2RP at 148. 28 2RP at 236. 11No.76150-1-1 / 12

L.S.'s cousin and sister testified to his positive attributes, appropriate caregiving, and parenting skills. On November 3,2016,the court entered the following pertinentfindings offact and conclusions of law: 2.3.2 [L.S.] entered an agreed order on June 4, 2008. . . . The father partially complied with services at the outset of that dependency by participating in a drug and alcohol evaluation. However, by November of 2009thefather was no longer compliantwith his services and had indicated that he could not care for the child. Ultimately the mother was able to make sufficient progress in herservices to allow return of[D.F.-S.]to her care and dismissal ofthe dependency on 12/27/2010. . . . 2.4 Although [L.S.] was personally served with the second dependency petition and notice of the court dates, he did not participate at all in early stages of the dependency. . . . The father was ordered to participate in Random Urinalysis (UAs), a Drug/Alcohol evaluation, and a psychological evaluation with a parenting component and to follow the recommendations ofthese evaluations.
2.6 Ordered services and all services,reasonably available,and capable of correcting parental deficiencies have been understandably offered or provided. 2.6.1 The father simply did not make himself available to participate in services during the first nearly two years of the dependency. He completely disappeared for nearly all ofthe first years. .. . 2.6.3 Ms.Livingston was unable to make contactwith the father until he appeared without notice at her office sometime in April 2014.At that meeting, she attempted to explain court ordered services to the fatherand provide him with the court's order.Thefather became very angry and threw the order in her face. . . .The father stormed out of the meeting and returned only when the mother requested he come back to sign the rules of visitation. In a subsequent meeting, he told Ms. Livingston that he would only participate in a drug and alcohol assessment and planned to initiate that service at Seattle Indian Health Board,which did not require a referral from the Department. 12No.76150-1-1 /13

2.6.4. Ms. Livingston was unable to provide the father a referral for a specific UA facility because the father would not tell her where he was living or work with her to establish a UA location that was in the area he was staying. However, father did come to her office on at leastfour occasions. ... In each instance,he did not coordinate with her prior to arriving. . . . 2.6.5 Despite assurances from Ms. Livingston that she would not contact law enforcement concerning the father's outstanding warrants, the father did not make himself available to participate in services until after his arrest in September 2015. 2.6.6. . .Atall. ..hearings [between 11/13and 3/15]thefather was found notin compliance with anyofhisservices,notmaking progress and not visiting consistently with the child. 2.6.7 Social Worker Pam Rago . . . arranged for [D.F.-S.]to visit his father twice at the King County Jail prior to the father's transfer to DOC custody. 2.6.8 Ms. Rago worked with the father's counselor at the DOC and arranged for him to participate in both a substance abuse assessment and a psychological evaluation with a parenting component at Cedar Creek Correctional Facility.

2.7There is little likelihood that conditions will be remedied so thatthe child can be returned to the parent in the nearfuture. 2.7.1 This child has been outofhisfather's carefora substantial part of his life. He has been found dependent twice, was in a voluntary placementpriorto thatand has been in the informal care of hisfamily and friends at various points in his life when his parents were unwilling or unable to care for him. The near future is determined from the point ofview ofthe child and the nearly three years it would take for the father to be able to provide the safety and stability this child needs is well beyond his near future. 2.7.2 The father has been incarcerated since September 2014,first atKing CountyJail,followed by histransfertothe[DOC].Thefather's corrections officer, Susan Erickson, confirmed that the father's release date is December 18,2018 and that he would be eligible for

13No. 76150-1-1 /14

work release on June 17, 2018, presuming his behavior remains good. 2.7.3 Following his release from incarceration, the father will need a significant period of time to address his deficiencies in order to be available to provide a stable and safe placement for his son. The father estimated that he would need a year following his release before he would be ready to parent [D.F.-S.1 However, Dr. Tutty recommended that reunification not be considered until the father had demonstrated sobriety and stability for 18 months following his release. Dr.Tully noted thatthe other services he recommended for the father, should reunification be attempted, would need to be engaged in following his demonstration of stable sobriety.
2.7.5 Dr. Tutty was very concerned about any plan to reunite [D.F.- S.]with his father. He indicated that where there is a pattern of this length of substance abuse coupled with his history of neglect there is a high likelihood offuture neglect. This is not prognostic of a safe return ofthe child in the nearfuture. Dr.Tutty felt thatthe risk factors were just too high. He did comment that one of the factors he considered was[L.S.'s]numerousfailed attempts to complete a drug and alcohol treatment program and maintain sobriety. 2.7.6 The father's lack of insight was apparent throughout his testimony. He felt thatthere was no impactto [D.F.-S.]from his drug use,even though he was absentfrom [D.F.-S.'s]life for probably the majority of [D.F.-S.'s] life and certainly the most recent years of his life because of criminal problems related to his drug use. He also failed to recognize that because of his use of drugs and incarceration, [D.F.-S.] was frequently left in dangerous situations without appropriate supervision. 2.7.7 His lack of insight was also demonstrated by his testimony regarding his own need for [D.F.-S.]to be in his life, indicating that [D.F.-S.] had no choice but to wait for another three years because he was his son. He demonstrated no recognition that his son's needs might be different than his own or that his son's needs needed to be prioritized. 2.7.8 While the father expressed that he would do whatever was needed to have his child returned to his care,hisdecision notto seek help through the sober support meetings and mental health counseling that were available at his correctional facility are not the 14No.76150-1-1/ 15

decisions of someone dedicated to repairing the situation that brought this child into care. 2.8 Continuation of the parent[-]child relationship clearly diminishes this child's prospects for early integration into a permanent and stable home. 2.8.1 The court has considered the factors set forth in [RCW] 13.34.145(5)(b) and does not believe that the father has a meaningful relationship with his son. . . . 2.8.2 Even if there had been a meaningful relationship between the father and [D.F.-S.], there is not an alternative petition before the court that would allow for the permanence. No appropriate guardian has come forward and expressed interest in providing permanence for this child. 2.8.3 At this point, it is clear that [D.F.-S.]does not wish to have [a] relationship with his father. He has declined visits and phone calls. [D.F.-S.] has indicated that he wishes to be adopted. Although the wishes ofa child [D.F.-S.'s]age are certainly notconclusive,they are a factor that must be considered.
2.8.4 [D.F.-S.] has prospects for adoption and would not be able to integrate into a permanent and stable home until his legal relationship with his father is terminated. 2.9Termination ofthe parent-child relationship between [L.S.]and [D.F.-S.] is in the child's best interest. 2.9.1 There is no doubtthatthe father is sincere in wanting to parent [D.F.-S.]and to rehabilitate his life. However,given the history ofthe father's many relapses and absences from this child's life, considered along with the long period of instability thatthis child has lived through, [D.F.-S.] should not have to wait any longer for permanence. 2.9.2 Despite the Department's efforts to provide contact between the father and [D.F.-S.], when [D.F.-S.]was provided the discretion to rejectfurther contact, he chose to do so. He visited with his father twice at King County Jail and participated in one phone call with his father at Cedar Creek Corrections Center and thereafter refused to speak with his father.

15No.76150-1-1 /16

2.10 Based upon the evidence presented and findings above,the courtfinds current unfitness. There is no dispute that the father will be unavailable to provide a safe and stable home for his son prior to his release in December 2018. The father's lack of insight and undressed substance abuse issues would present a risk to his son if he were to return to his father's care. The status of the child's sibling relationships and the nature and extent of sibling placement, contact or visits is as follows: [D.F.-S.] has an adult sibling with whom he does have periodic contact.[291 The court concluded that the Department proved the criteria for termination by clear, cogent, and convincing evidence and that termination was in D.F.-S.'s best interests. L.S. appeals. ANALYSIS Standard of Review Parental rights are a fundamental liberty interest protected by the United States Constitution. Santosky v. Kramer, 455 U.S. 745,753, 102 S.Ct. 1388,71 L. Ed. 2d 599 (1982). To terminate parental rights,the State must satisfy a two-step test. First, it must prove the following statutory elements by clear, cogent,and convincing evidence:

(a)Thatthe child has been found to be a dependent child; (b)Thatthe court has entered a dispositional order pursuantto RCW 13.34.130; (c)Thatthe child has been removed orwill,atthe time ofthe hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding ofdependency; (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

29 Clerk's Papers(CP)at 272-77. L.S.assigns error to findings offact 2.6to 2.6.11, 2.7to 2.7.8, 2.8 to 2.8.4, 2.9to 2.9.4,and 2.10. 16No.76150-1-1 / 17

(e)That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . .[; and] (f)That the continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. RCW 13.34.180(1). If the trial court finds that the State has met its burden under RCW 13.34.180, it may terminate parental rights if it also finds by a preponderance of the evidence that termination is in the "best interests" ofthe child. RCW 13.34.190(2)(b). On review, unchallenged findings offact are considered verities. In re Interest of J.F., 109 Wn.App. 718, 722, 37 P.3d 1227 (2001). Challenged findings will be upheld "[i]f there is substantial evidence which the lower court could reasonably have found to be clear,cogentand convincing. . . ." In re Aschauer, 93Wn.2d 689,695,611 P.2d 1245 (1980). Because the trial court hears the testimony and observes the witnesses, its decision is entitled to deference. In re Dependency ofA.V.D., 62Wn.App.562,568,815 P.2d 277 (1991). Consequently, we defer to the trier of fact on issues of conflicting testimony,credibility ofthe witnesses,and the weight or persuasiveness ofthe evidence. A.V.D., 62Wn.App.at 568; In re Welfare of S.J., 162Wn.App. 873,881,256 P.3d 470 (2011); State v. Camarillo, 115 Wn.2d 60,71,794 P.2d 850(1990). L.S. contends the Department failed to prove by clear, cogent, and convincing evidence that it expressly and understandably offered or provided all court-ordered and necessary services as required by RCW 13.34.180(1)(d). Specifically, he contends the Departmentfailed to "(a)timely offer a court-ordered psychological evaluation,(b)failed to provide integrated psychological and chemical dependency treatment, (c) failed to

17No. 76150-1-1 /18

timely investigate,obtain,and offer services due to incarceration,and (d) failed to provide attachment services."30 We address each ofthese arguments in turn.

Timeliness of Psychological Evaluation and Recommended CBT L.S. contends the Department failed to timely offer either the court-ordered psychological evaluation or the CBT recommended in that evaluation. Noting that the evaluation occurred nearlythree yearsafterthe courtordered itand thathe did notreceive CBT during the brief two-month period between the evaluation and the termination trial, L.S. contends the delay in offering those services undercuts the court's conclusion that the Department provided all necessary services as required by RCW 13.34.180(1)(d). See S.J.,162 Wn.App. at 881-84 (reversing termination due to Department's failure to timely provide court-ordered mental health service that might have helped the parent progress in other services at an earlier stage and would not have been futile); In re Dependency of T.L.G.,126 Wn. App. 181, 198-203, 108 P.3d 156 (2005) (where "protracted delay"in obtaining psychological evaluations was not"solely (oreven mostly)" caused by the parents, there was no reason why mental health services could not be provided pending the evaluations, and there was no finding parents could not have benefitted from the services, the delay and "false premise that all other services should await the [evaluation] results" fatally undermined the court's finding that necessary services were offered). The record demonstrates,however,thatthe vast majority ofthe delay was caused by L.S., not the Department. In an unchallenged finding, the court found L.S. "did not

30 Br. in Supp.of Mot.forAccelerated Review at 2. 18No.76150-1-1 / 19

participate at all in early stages ofthe dependency."31 In several challenged findings,the courtfound he left invalid contact information with the Department,"did not make himself available to participate in services until after his arrest in September 2015," rejected caseworker Livingston's initial attemptto explain his courtordered services,and later told Livingston he would only participate in a drug and alcohol assessment and planned to initiate thatservice himselfatSeattle Indian Health Board.32 Thesefindingsare supported by substantial evidence.33 The record also demonstrates that there was no unreasonable delay once L.S. became available for services. Caseworker Rago testified that when she took over the

case in September 2015,L.S.was in the King County Jail and that,to her knowledge,the court-ordered services were not available in the jail. When L.S. moved temporarily to the Washington Corrections Center in Shelton in October 2015,Rago senthim a service letter informing him ofthe services being offered. She included a copy ofthe dependency order and the most recent dependency review hearing order. She sent L.S. similar letters throughout the next year. Despite L.S.'s inaction in response to Rago's service letters, Rago contacted a DOC employee at Cedar Creek shortly after his arrival there. They discussed "what services were available for [L.S.]" and "went over the dependency order."34 They specificallydiscussed setting up a psychological evaluation. Rago subsequently received

31 CP at 273(FF 2.4). 32 CP at 273(FF 2.6.1, 2.6.3,2.6.5). 33 Under the clear,cogent,and convincing evidence standard,the Department carries its burden ifthe evidence proves that the necessary facts are highly probable. In re Welfare of M.R.H., 145 Wn.App. 10,24,188 P.3d 510(2008). 34 3RP at 270. 19No. 76150-1-1 / 20

an e-mail from DOC informing her that it would not do the psychological evaluation, but the Departmentcould bring in its own provider to do the evaluation. Rago then contacted L.S.'s attorney whoagreed to use Dr.Tuttyforthe psychologicalevaluation. In May 2016, Rago made a referral for the psychological evaluation to Dr. Tutty. Dr. Tutty completed the evaluation in August 2016. In short, the psychological evaluation was timely and repeatedly offered to L.S. and there was no unreasonable delay in its provision. Nor was there an unreasonable delay in offering L.S. CBT. As previously noted, Dr. Tutty recommended CBT in August 2016, only two months before the termination trial. And nothing in the record indicates that CBT was available at Cedar Creek. In any event,any offer of CBT would have been futile. Termination is appropriate "even where the State inexcusably fails to offer a service to a willing parent . . . if the service would nothave remedied the parent'sdeficiencies in theforeseeablefuture,which depends on the age ofthe child." In re Dependency ofT.R., 108 Wn.App. 149, 164, 29 P.3d 1275 (2001). This means that when the record establishes that an offer ofservices would have been futile,the trial court can make a finding thatthe Department has offered all reasonable services. In re Ferguson, 32Wn.App.865,869-70,650 P.2d 1118(1982), rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983); In re Parental Rights to K.M.M., 186 Wn.2d 466, 483, 379 P.3d 75 (2016). Considering L.S.'s minimal participation in servicesthroughouthisdependencyand hisfailure to use available mental health counseling or sober support services during his entire stay at Cedar Creek, any offer of CBT during the few months before the termination trial would have been futile.

20No.76150-1-1 /21Psychological and Chemical Dependency Treatment

L.S. next contends the Department failed to provide integrated mental health and chemical dependency treatment as required by In re Welfare of S.J., 162 Wn.App. 873, 881-84,256 P.3d 470(2011). He contends S.J. is controlling and requires reversal. We disagree. In S.J.,thedispositional orderstated thatmental health serviceswould be provided only after the mother achieved sobriety. After three failed attempts to complete inpatient drug treatment, the mother succeeded soon after receiving mental health services. On appeal, the mother argued that "coexistent mental health services were necessary for successful early treatment." S.J., 162 Wn.App. at 882. The Sd.court determined the mother's initial inability to complete inpatient treatment was linked to her mental health issues. 162Wn.App.at 882. The court noted a legislative finding that often "'integrated treatmentofco-occurring disorders is critical to successful outcomesand recovery.' 162 Wn.App. at 882 (quoting Laws of 2005, ch. 504, § 101). The court concluded the Departmentfailed to timely offer or provide all necessary services because it did not offer concurrent mental health and substance abuse treatmentfor her co-occurring disorders. This case bears no resemblance to S.J. Neither the dispositional order nor the Department required sequential substance abuse and mental health treatment in this

case. Rather, the dispositional order offered chemical dependency and psychological evaluations simultaneously and directed L.S. to initiate both within 30 days. In addition, the parent in SJ.fully engaged in services but was hampered in her substance abuse treatment by the Department's refusal, despite knowledge of identified mental health

21No.76150-1-1 / 22

issues, to offer concurrent mental health treatment. By contrast, L.S. did not participate in any evaluations or services until late in the dependency and eschewed available counseling and sober supportgroups while incarcerated. S...1. is inapposite.35 Timely Services During Incarceration Citing RCW 13.34.136(2)(b)(i)(A),36 L.S.contends the Department "failed to timely request a transfer . . . to a prison facility that provided [necessary] services . . . ."37 Specifically, he contends that because his chemical dependency assessment recommended level 3.5 treatment "immediately,"38 and because level 3.3 treatment was available at anotherfacility,the Department had a duty to immediately transfer him to that facility. We reject this contention for several reasons. First, the Department contends, and L.S. does not dispute, that it "has no control

over the placement of inmates within the Departmentof Corrections"and "lacks authority to move any incarcerated person or to recommend such movement."39 Second,nothing in the record demonstrates that the Department could have facilitated an earlier transfer. In fact, the supervisor of the DOC substance abuse recovery unit testified that DOC attempts to find other facilities that offer inmates' treatment needs, but transfers are available only under specific conditions. For example, the receiving facility must be

35 L.S.'s claim that "[t]he Departmentfailed to offer a psychological evaluation because L.S. had not demonstrated he was sober enough" is not supported by the record. Br. in Supp.of Mot.for Accelerated Review at 21. 36 RCW 13.34.136(2)(b)(i)(A)provides in part:"Ifthe parent is incarcerated,"the permanency plan must "include treatment that reflects the resources available at the facility where the parent is confined." 37 Br. in Supp.of Mot.forAccelerated Review at 23. 382 RP at 113. 39 Br. of Resp't at 22. 22No. 76150-1-1 /23

appropriate to the inmate's custody level and estimated release date. A transfer is also dependenton bed availability and requires inputfrom the classification and transportation units "because they're responsible for the actual risk ratings and custody level for the offenders."4° The record thus supports the Department's contention that a transfer to anotherfacility was beyond its control. Third,the focus of RCW 13.34.136(2)(b)(i)(A) is on providing treatment "available at the facility where the parentis confined."41 Thus,the Department's duty was to make reasonable efforts to refer an inmate to services available in his orherfacility. See In re Dependency of D.L.B., 186 Wn.2d 103,123,376 P.3d 1099(2016)(Department's duty is to provide all services that are reasonably available in the facility where the parent is confined). The Departmentfulfilled thatduty. Parent -Child Attachment Services L.S. asserts the Department did nothing to implement a service recommended by Dr. Tutty "to improve the emotional bond between L.S. and [D.F.-S.]."42 But Dr. Tutty recommended this service only "[i]f the Department elects to proceed with reunification upon [L.S.'s] DOC release."43 Furthermore, the record and findings in this case demonstrate that an offer of bonding services during the few months between Dr.Tutty's report and termination would have been inappropriate and futile.

402 RP at 127. 41 (Emphasis added.) 42 Br. in Supp.of Mot.forAccelerated Review at 26. 43 Ex. 24(emphasis added). 23No.76150-1-1 / 24

Several witnesses, including Dr. Tutty, indicated that bonding therapy would be inappropriate and likely unsuccessful until D.F.-S. desired contact with his father. D.F.- S. expressed no desire to contact L.S. prior to termination. In addition, Dr. Tully noted that L.S. was "unlikely to benefit from treatment services, as his level of paranoia would likely interfere with genuinely applying treatment skills into his own parenting."'" These facts demonstrate futility. See K.M.M., 186 Wn.2d at 480-81, 483 (attachment and bonding service would have been futile where child "could not tolerate interactions with her father," "refused to attend visitation," and "would not be a willing participant in any therapeutic services with her father"); K.M.M., 186 Wn.2d at 485 (father's mental health issues rendered him unable to supportthe child's attachmentto him). L.S.'s remaining arguments fail because they proceed from the premise, rejected above, that the Department failed to provide all necessary services and/or are too conclusory to merit discussion. We note, however,that the record belies his conclusory assertion thattermination was not in D.F.-S.'s best interests. Caseworker Rago and the CASA agreed that termination was in D.F.-S.'s best interests. Caseworker Livingston

saw no progress with L.S.during her time on the case and said he could not safely parent D.F.-S. until he addressed his substance abuse. Dr. Tutty testified that L.S.would have to demonstrate 18 months ofsobriety afterhis release in 2018 before reunification could be considered. Considering D.F.-S.'s age,adoptability, and express preference to have

no contact with L.S., and given L.S.'s lack of progress and long-term unavailability, the record amply supports the court's finding thattermination was in D.F.-S.'s best interests.

44 Ex. 24. 24

### No. 76150-1-1/25

Affirmed.

WE CONCUR:

25