IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Dependency of

T.S., DOB 01/28/13, and

T.T.M., DOB 11/14/08,

Minor Children.

WASHINGTON STATE DEPARTMENT

OF SOCIAL & HEALTH SERVICES,

Respondent,

WILLIE L. MATHEWS,

Appellant.

No. 72928-4-I

consolidated with

No. 72929-2-1

UNPUBLISHED OPINION

FILED: July 20, 2015

Verellen, A.C.J. — Willie Mathews appeals the termination of her parental rights

to her two children. She contends that the order terminating her parent-child

relationships must be reversed because the Department of Social and Health Services

(Department) failed to prove several statutory factors by clear, cogent, and convincing

evidence. Substantial evidence supports the trial court's explicit and implicit findings

that the Department offered or provided all necessary services capable of correcting her

parental deficiencies within the foreseeable future, that she was currently unfit to parent,
No. 72928-4-1/2

and that there was little likelihood that her parental deficiencies would be remedied in

the near future. We affirm the termination order.

FACTS

Ms. Mathews is the mother of T.M., a daughter born on November 14, 2008, and

T.S., a son born on January 28, 2013. Ms. Mathews came to the attention of the

Department when she sought prenatal care late in her pregnancy and tested positive for

opiates and cocaine. At that time, Ms. Mathews acknowledged she suffered from

severe depression and admitted to using alcohol when depressed. When T.S. was

born, he tested positive for cocaine and required additional medical care and

observation after delivery. Ms. Mathews was living in a shelter at the time, but was

asked to move out shortly after the birth.

After a contested hearing in April 2013, the juvenile court found both children to

be dependent as to Ms. Mathews. Ms. Mathews did not appear at the dependency fact

finding hearing. In determining dependency, the court found that Ms. Mathews has a

history of substance abuse and depression. The dependency order required

Ms. Mathews to participate in individual mental health counseling, to complete a drug

and alcohol evaluation and follow treatment recommendations, and to participate in

random urinalysis three times per week.

When the hospital discharged T.S., the Department placed him and four-year-old

T.M. in the care of a paternal aunt. Dependency review hearings and permanency

planning hearings took place in July 2013, December 2013, May 2014, and October

2014. Ms. Mathews did not appear at any of the hearings. After each hearing, the court

found that the Department had made reasonable efforts to provide services, but the
No. 72928-4-1/3

mother had not engaged in any court-ordered services. The court also found that

Ms. Mathews had not regularly visited the children.

In July 2014, the Department filed a petition to terminate the parental rights of

both parents. On November 26, 2014, both parents attended a hearing on the petition

and signed documents of consent to relinquish parental rights and open adoption

agreements. A few days later, Ms. Mathews contacted her attorney and revoked her

consent. The Department's petition proceeded to trial on December 5, 2014.1

Ms. Mathews was represented by counsel, but did not personally attend the trial.

At trial, the court considered the testimony of the court appointed special

advocate (CASA) and the social worker assigned to the case, as well as numerous

exhibits.2 The CASA testified that she visited the children every month beginning in

April 2013. The CASA reported that T.S. had never lived with his mother and that T.M.

only lived with her intermittently before she was removed in early 2013.

The CASA testified that she had had no opportunity to observe the children with

Ms. Mathews. The CASA explained that she had no way of contacting Ms. Mathews

because Ms. Mathews did not have an address or a working telephone number, so the

1 Ms. Mathews told her attorney that the father also wished to revoke his previous

consent to relinquish his parental rights. The State therefore presented evidence in

support of the termination of the rights of both parents, and the court's order terminated the

rights of both parents. Only Ms. Mathews is a party to this appeal and therefore, only the

termination of her parental rights is at issue.

2The documentary evidence included the order of dependency, review hearing

orders, and court documents establishing Ms. Mathews' numerous prior convictions,

predominately for charges of theft and possession of stolen property.
No. 72928-4-1/4

CASA tried to contact her through the social worker, her attorney, and relatives with

whom Ms. Mathews sporadically remained in contact.

The CASA reported that she spoke once to Ms. Mathews by telephone when

Ms. Mathews called her about four months before the termination trial. Although

Ms. Matthews' words were slurred and she was difficult to understand, the CASA said

Ms. Mathews was distressed about losing custody of her children. The CASA urged

Ms. Mathews to start participating in the services ordered by the court. The CASA

provided the mother with the social worker's name and telephone number and her

attorney's telephone number.

The CASA testified that Ms. Mathews had not obtained a drug and alcohol

evaluation. The CASA recommended termination of the mother's parental rights

because she had made no effort to engage in court-ordered services to address her

parental deficiencies, she had seldom visited the children, had no home, and the

children had been dependent for nearly two years. In the CASA's opinion, termination

of the parental relationship was in the best interests of the children.

The social worker assigned to the case for the duration of the dependency also

testified that she was unable to contact Ms. Mathews after she left the shelter shortly

after T.S.'s birth. The social worker had no physical address, e-mail address, or valid

telephone number for Ms. Mathews and, like the CASA, tried to contact her through

relatives. The social worker said that although she referred Ms. Mathews for services,

Ms. Mathews did not participate in any services, nor did she obtain a drug and alcohol

evaluation.
No. 72928-4-1/5

In May 2014, the social worker learned that Ms. Mathews was in jail, and she

visited her there just before her release. At that time, the social worker delivered a letter

to Ms. Mathews informing her of an upcoming dependency review hearing and outlining

the services ordered by the dependency court. The letter asked Ms. Mathews to

contact the social worker upon her release and provided that "Atthat time, I can refer

you for services."3 The letter included the social worker's name and contact information.

The mother initiated telephone contact with the social worker twice: once before

the dependency was established in March 2013 and then not again until several months

after the jail visit in the summer of 2014. During the latter conversation, Ms. Mathews

acknowledged her deficiencies and appeared to understand the services she was

required to engage in. She stated her intentto become involved in those services. The

social worker made referrals for Ms. Mathews to obtain the required services, but

Ms. Mathews never attempted to obtain any services, nor did she attend any

dependency court hearings, or request any information about the children.

The social worker said the children's caretaker was initially authorized to

supervise visitation, but the visits rarely occurred. Atsome point, the Department began

requiring professionally supervised visitation, but Ms. Mathews never showed up for any

supervised visits, nor did she request any official visits with the children.

The social worker testified that she filed the termination petition on behalf of the

Department because she did not know where Ms. Mathews was, she had no reason to

believe that Ms. Mathews had made any effort to the address the issues that led to the

dependency, and that there was little likelihood the children could be returned to

3 Ex. 20.
No. 72928-4-1/6

Ms. Mathews' care in the near future. The social worker identified Ms. Mathews'

parental deficiencies as significant mental health issues, long-standing drug and alcohol

addiction, and a lack of parenting skills. The social worker explained that T.S. has

"very, very high medical needs"4 and expressed the opinion that Ms. Mathews was

unable to meet those needs because she had not demonstrated an ability to remain

sober, to recognize and meet the needs of the children, or to make herself available to

parent them. The social worker estimated that itwould take at least six months, or more

likely a year, of consistently engaging in services to make sufficient progress in order to

attempt reunification. According to the social worker, the children's caregiver, the

paternal aunt, wanted to adopt the children, and continued dependency for six months

to a year would diminish the children's prospects for permanency and integration into a

stable and permanent home. The social worker also recommended termination as

being in the best interests ofthe children "[bjecause it would allow them the opportunity

to be adopted and have permanency and stability."5

After the Department presented its case, counsel for Ms. Mathews asked the

court to deny the petition, or alternatively, to continue the trial for six months to allow her

to obtain services. The trial court issued an oral ruling and also entered written findings

of fact and conclusions of law terminating the parental rights of Ms. Mathews and the

father as to both children. In ordering termination, the court found that the Department

offered services, but since the parents never attempted to engage in any services, there

was no reasonable basis to conclude that they would do anything differently ifthe court

4 Report of Proceedings (RP) (Dec. 5, 2014) at 107.

5 Id. at 112.
No. 72928-4-1/7

continued the trial. The court also found that all elements of RCW 13.34.180 had been

established by clear, cogent, and convincing evidence. Finally, the court found that

Ms. Mathews was unfit to parent and that termination was in the children's best

interests. Ms. Mathews appeals.

ANALYSIS

Ms. Mathews contends that the Department failed to prove that it expressly and

understandably offered all necessary services capable of correcting her parental

deficiencies, that there was little likelihood conditions could be remedied in the near

future, and that she was currently unfit to parent. Ms. Mathews further contends that

the juvenile court's findings are insufficient and do not support the conclusions of law.

Parental rights are a fundamental liberty interest protected by the United States

Constitution.6 To terminate parental rights, the State must satisfy a two-step test.7

First, it must prove the following statutory elements by clear, cogent, and convincing

evidence:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to

RCW 13.34.130;

(c) That the child has been removed or will, at the time of the hearing,

have been removed from the custody of the parent for a period of at

least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been

expressly and understandably offered or provided and all

necessary services, reasonably available, capable of correcting the

parental deficiencies within the foreseeable future have been

expressly and understandably offered or provided;

6 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d 599 (1982).

7 In the Matter of Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
No. 72928-4-1/8

(e) That there is little likelihood that conditions will be remedied so that

the child can be returned to the parent in the near future. . . .

(f) That continuation of the parent and child relationship clearly

diminishes the child's prospects for early integration into a stable

and permanent home.[8]

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" of the child.9

Where the trial court has weighed the evidence, appellate review is limited to

determining whether the court's findings of fact are supported by substantial evidence

and whetherthose findings supportthe court's conclusions oflaw.10 "Evidence is

substantial if it is sufficient to persuade a fair-minded person of the truth of the declared

premise."11 When deciding whether substantial evidence supports the findings offact,

the appellate court must consider "'the degree of proof required.'"12 Since the burden of

proof for termination proceedings is clear, cogent, and convincing evidence, "the

question on appeal is whetherthere issubstantial evidence to supportthe findings in

light of the highly probable test."13 Unchallenged findings are verities on appeal.14

8 RCW 13.34.180(1).

9 RCW 13.34.190(b).

1° In re Dependency of P.P.. 58 Wn. App. 18, 25, 792 P.2d 159 (1990).

11 In re Welfare of S.J.. 162 Wn. App. 873, 881, 256 P.3d 470 (2011).

12 In re Dependency of A.M.M.. 182 Wn. App. 776, 785-86, 332 P.3d 500 (2014)

(quoting PTJ., 58 Wn. App. at 25).

13 PJl, 58 Wn. App. at 25.

14 In the Matter of Interest of Mahanev, 146 Wn.2d 878, 895, 51 P.3d 776 (2002).
No. 72928-4-1/9

In its oral ruling, the court noted that "it's clear that services were offered and

recognized but neverfollowed through on" bythe parents.15 The court noted the

parents' "persistent failure" to do "anything at all" during the dependency.16

The court's written findings include the following:

2.8 There is little likelihood that conditions will be remedied so that the

children can be returned to the parents in the near future because

throughout the dependency the parents have demonstrated an

unwillingness to participate in and/or successfully complete

services offered to correct their parental deficiencies.

2.9 The Department has been ready and available to offerservices to

each parent. However, throughout the dependency the

whereabouts of both parents had been mostly unknown. The

parents have not maintained telephone contact with the

Department and the Department did not have valid addresses or

phone numbers to contact them.

2.14 Both parents have a long history of mental health issues,

homelessness, arrests, criminal convictions, and substance abuse.

The parents have not maintained contact with the Department nor

have they requested visitation with the children with the exception

of some visits by the father early in the dependency. The parents

have essentially abandoned these children.[17]

Services Offered

Ms. Mathews argues that the social worker's generic testimony thatshe made

referrals so that Ms. Mathews could access services is insufficient to establish that the

Department expressly and understandably offered or provided necessary services.

15RP(Dec. 5, 2014) at 132-33.

16 Id, at 132.

17 Clerk's Papers (CP) at 171-72.
No. 72928-4-1/10

Ms. Mathews further points out that while the social worker testified that she made no

referral for individual counselling because Ms. Mathews could obtain that service

without a referral, there is no evidence the social worker told Ms. Mathews this. And

Ms. Mathews suggests that because witnesses mentioned lack of parenting skills and

homelessness as aspects of her unfitness, the Department should have offered

additional services which would have been helpful, such as parenting skills training and

housing assistance.

But the suggestion that the Department failed to meet its burden because "no

one explained to [Ms. Mathews] how to access [services]"18 and because the services

offered were not sufficiently comprehensive simply ignores key facts established by the

evidence. There is no dispute that Ms. Mathews had notice of the dependency order

and that she understood that the order required her to engage in services in order to

regain custody. There is also ample evidence that although Ms. Mathews was

unreachable, the social worker was ready and able to assist her in complying with the

court order. The social worker expressly testified that she did make service referrals to

Ms. Mathews. When the social worker was able to reach Ms. Mathews in jail, she gave

her a letter requesting that she contact the social worker when she was released so the

social worker could provide referrals for services. Ms. Mathews does not challenge the

court's finding that the Department was ready and available to provide services to her.

The testimony established that Ms. Mathews knew how to contact the social

worker. Both the CASA and the social worker explained to Ms. Mathews that the social

18 Reply Br. at 2.

10
No. 72928-4-1/11

worker could help her access services. But Ms. Mathews never took any steps to

access services, nor made any inquiry about them. The trial court was not compelled to

accept her statements a year and a half after the children had been removed from her

care that she intended to participate. Ms. Mathews claims there is no evidence that she

refused or rejected any service offered to her. But the evidence that she chose not to

contact those willing to help her access and participate in services supports the court's

finding that she "demonstrated an unwillingness to participate in any services."19

Where, as here, the Department offers services "but the parent refuses to participate,

RCW 13.34.180(1)(d) is satisfied."20

Current Unfitness and Likelihood of Remedying Conditions

Ms. Mathews also challenges the court's findings that she is currently unfit to

parent and that there is little likelihood that conditions can be remedied in the near

future.21 To meet its burden to prove current unfitness in a termination proceeding, the

Department must prove that the parent's deficiencies prevent the parent from providing

the child with "basic nurture, health, or safety."22 And the focus of RCW 13.34.180(e) is

whether the identified deficiencies have been corrected.23 "A parent's failure to

substantially improve parental deficiencieswithin twelve monthsfollowing entry of the

dispositional order shall give rise to a rebuttable presumption that there is little likelihood

19 CP at 171.

20 In re Welfare of M.R.H., 145 Wn. App. 10, 26, 188 P.3d 510 (2008).

21 See RCW 13.34.180(1)(e); In re Dependency of K.R., 128 Wn.2d 129, 142, 904

P.2d 1132 (1995).

22 In re Welfare of A.B.. 181 Wn. App. 45, 61, 323 P.3d 1062(2014).

23 In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008).

11
No. 72928-4-1/12

that conditions will be remedied so that the child can be returned to the parent in the

near future."24 "A parent's unwillingness to avail herself of remedial services within a

reasonable period is highly relevant to a trial court's determination as to whether the

Department has satisfied RCW 13.34.180(1 )(e)."25 Even if evidence shows the parent

may eventually be capable of correcting their deficiencies, termination is still appropriate

where the correction will not likely occur within the foreseeable future.26

Ms. Mathews contends that the finding of parental unfitness is supported only by

facts established for purposes of dependency under a preponderance of the evidence

standard and by inadmissible hearsay. She also claims that mere absence or the

failure to engage in court-ordered services is, as a matter of law, insufficient to establish

parental unfitness. Ms. Mathews maintains that without an adequately supported

finding of parental deficiency, the court'sfinding on the likelihood ofremedying such

deficiency necessarily fails.

Termination and dependency proceedings have "different objectives, statutory

requirements, and safeguards."27 And while identification of parental deficiencies is

sufficient to support a dependency, a court may not permanently terminate a parent's

rights without a finding of current parental unfitness.28 Here, the juvenile court did not

merely rely on the dependency court's prior determination of parental deficiencies. As

required, the courtfound current parental unfitness beforeterminating Ms. Mathews'

24 RCW 13.34.180(1 )(e).

25 In re Welfare of T.B.. 150 Wn. App. 599, 608, 209 P.3d 497 (2009).

26 In re Welfare of A.G.. 155 Wn. App. 578, 590, 229 P.3d 935 (2010).

27 In re Welfare of K.K., 119 Wn.2d 600, 609, 836 P.2d 200 (1992).

28 AB,, 181 Wn. App. at 60-61.

12
No. 72928-4-1/13

rights. This finding is not constitutionally infirm because it is based, in part, upon facts

underlying the dependency. In a termination proceeding, the Department is not

required to re-prove these facts.29

Ms. Mathews makes the sweeping assertion that the court's finding of current

unfitness is, for the most part, supported only by inadmissible hearsay. While the court

admitted some testimony merely for the purpose of explaining the basis for the social

worker's and the CASA's opinions, Ms. Mathews identifies only one aspect of the

finding that is arguably unsupported by competent evidence in the record.

Specifically, Ms. Mathews points outthat the court determined she was currently

unfit based, in part, upon a history ofmental health issues. At the termination trial, the

social worker also identified mental health issues as one of Ms. Mathews' deficiencies.

However, as Ms. Mathews observes, the social worker did notspecifically describe any

mental health condition, nor did she provide the basis for her opinion, or explain how

that condition affected her parenting.

But even ignoring such general references to her mental health issues, the

finding of parental unfitness was also based upon substance abuse and abandonment.

Substantial evidence before the court supports the finding that Ms. Mathews had a

substance abuse problem. Ms. Mathews tested positive for drugs while pregnant, and

T.S. tested positive for drugs at birth. This was the primary issue that led to the

dependency and was established by the dependency order and corroborated by

admitted testimony. These facts did not have to be re-proved at the termination trial.

29 K.R., 128Wn.2dat141.

13
No. 72928-4-1/14

According to the testimony and documentary evidence, following the birth, Ms. Mathews

did not obtain a substance abuse evaluation or drug treatment.

The evidence also supports the court's finding that the parents "essentially

abandoned" the children.30 While parental unfitness, not abandonment, is the "ultimate

inquiry required by due process for termination of the child-parent relationship, in all

contexts," this does not mean that a parent's unavailability, infrequent contact with the

child, or lack of a relationship are inconsequential facts in determining current ability to

parent.31 To the extent that Ms. Mathews suggests that mere absence or lack of

progress in services alone does not prove parental unfitness, she overstates the case

authority. In re Interest of S.G. is inapplicable because in that case, the court

terminated parental rights, while at the same time, it expressly found there were no

parental deficiencies.32 Similarly, in In the Matter of Welfare of A.B., the court made no

express finding as to whether the father was unfit and, in view of the court's inconsistent

factual findings, a finding of unfitness could not be implied.33

Ms. Mathews claims that the only inference that may be drawn from the evidence

is that she was unwilling to cooperate with the Department. However, there is

undisputed evidence that the parents seldom visited the children and that the younger

child, almost two years old at the time of trial, believed his parental aunt was his mother.

The younger child had never been in Ms. Mathews' care, and Ms. Mathews had only

30 CP at 172 (Finding of Fact 2.14).

31 In re Adoption of McGee. 86 Wn. App. 471, 477, 937 P.2d 622 (1997).

32 140 Wn. App. 461, 468, 166 P.3d 802 (2007).

33 168 Wn.2d 908, 922, 232 P.3d 1104 (2010).

14
No. 72928-4-1/15

intermittently cared for the older child prior to February 2013. Ms. Mathews did not

attend any court proceedings, nor did she provide any input regarding the children's

needs and placement during the dependency. Under these circumstances, there is

ample evidence that Ms. Mathews was unavailable and currently unfit to parent the

children.

Sufficiency of Findings

Ms. Mathews claims that the court failed to make a finding as to one statutory

factor and that there is no basis in the record for some factual findings supporting the

court's conclusions.

According to Ms. Mathews, the termination order must be reversed because the

court did not make an explicit written finding pursuant to RCW 13.34.180(1 )(d) that the

Department expressly and understandably offered or provided necessary and

reasonably available services capable of correcting her parental deficiencies. Butwhile

the court did not enter a specific written finding addressing this statutory factor, it is

apparent from the written and oral findings, including the oral finding that "it's clear that

services were offered and recognized but never followed through on,"34 that the court

intended to find that the Department met its burden as to this factor.35

Finally, Ms. Mathews alleges that the court's findings contain few facts specific to

her and, as in In re Dependency of C.R.B.. the findings contain insufficient facts to

34 RP (Dec. 5, 2014) at 132-33.

35 See A.B., 168 Wn.2d at 921 (omitted finding may be implied where it is clear from

the remaining findings and circumstances that the missing finding was "actually intended"

by the court).

15
No. 72928-4-1/16

support the court's legal conclusions.36 But C.R.B. is not analogous. There, the only

evidence was the caseworker's testimony, which consisted of legal conclusions

parroting the language of the statute. The court's factual findings were merely legal

conclusions, unsupported by any facts.37 Here, the court properly entered adequate

factual findings and, as noted above, substantial evidence in the record supports those

findings. Those findings, in turn, support the court's legal conclusions.

We affirm.

WE CONCUR:

£*/. <?.

36 62 Wn. App. 608, 804 P.2d 1197(1991).

37 Id. at 618-19.

16

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