## CML0FAPPEALS OIV sTATEOFWASHINGTON 

## 2013APR29 AM10: 16

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In Re Dependency of: B.M.A.O. dob: 08/03/2008 STATE OF WASHINGTON, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent,

v. STEVEN OSTRANDER, Appellant. NO. 68761-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April29, 2013



### Lau, J. —In this appeal from an order terminating Steven Ostrander's parental 

### rights to his son, BMAO, Ostrander challenges the sufficiency of the evidence 

### supporting thetrial court'sconclusion underRCW 13.34.180(1)(d) that the Department of Social and Health Services expressly and understandably offered orprovided all 

### necessary and reasonably available services capable ofcorrecting his parental deficiencies within the foreseeable future. Because substantial evidence supports the 

### trial court'sfinding and because the court'sfindings as awhole support itsconclusions of law terminating Ostrander's parental rights, we affirm.68761-1-1/2

FACTS In November 2009, Child Protective Services (CPS) received a referral from a person who had seen then-one-year-old BMAO living in a "filthy" trailerwith his father, Steven Ostrander. The referent claimed that the trailer had no refrigerator or running water. CPS workers and a police officervisited the trailer. After looking through the window, the officer confirmed that the trailer "was in a deplorable condition, unacceptable interms of child safety and well-being." Ostrander agreed to speakwith the CPS workers but asked to be interviewed at his landlord's house. He said he did

not want visitors in his trailer because he had "trashed" it. During the interview, a CPS worker asked Ostranderwhy BMAOhad a bump on his head. Ostrander said the child had fallen while sleeping. When the worker asked about a rash nearthe child's genitals and buttocks, Ostrander acknowledged he had not 

### changed BMAO's diaper in two days. He said he did not have money to buy diapers. He also acknowledged that BMAO recently cut himselfon an aluminum can Ostrander left in BMAO's diaper bag, The injuryrequired stitches. The CPS workers decided to take BMAO into protective custody. While the 

### workers conferred privately with the officer, however, Ostrander disappeared with BMAO. The CPS workers searched Ostrander's trailer and photographed its condition. 

### They observed that his kitchen table was completely covered with cigarette butts, that the toilet was clogged, that a small electrical device had been dropped in the toiletbowl withthe cord hanging out, and that the trailer contained no food, diapers, or other necessities for a child. Two days later, CPS located BMAO and took him into protective

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### custody. Ostranderwas arrested and charged with fourth degree criminal mistreatment. 

### He pleaded guiltyto thecharge.1 In March 2010, the trial court entered an agreed orderfinding BMAOdependent. The court also entered a dispositional order under RCW 13.34.130 requiring Ostrander to participate in a drug and alcohol evaluation, random urinalysis, mental health counseling, and a psychological evaluation. In September 2011, the Departmentfiled a 

### petition toterminate Ostrander's parental rights toBMAO.2 In April 2012, following a termination trial, the court granted the Department's petition and committed BMAO to the Department's custody. Ostrander appeals.
ANALYSIS Parental rights are a fundamental liberty interest protected by the United States Constitution. Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Accordingly, "termination of parental rights should be allowed 'only for the most 

### powerful ofreasons.'" Inre Termination ofS.J., 162 Wn. App. 873, 880, 256 P.3d 470 

### (2011) (quoting Inre Welfare ofA.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). "The legislature has prescribed a statutory scheme that balances the parents' liberty interestwiththe child's right to a safe and healthy environment." In re Dependency of 

### K.D.S.. Wn.2d , 294 P.3d 695, 699 (2013). Under this scheme, the State must 

### 1Thetrial courtsentenced Ostrander to 365 days injail, with 275 days suspended. The court's written findings of fact entered afterthe termination trial state that Ostranderwas "*jailed from November 2009 through January 2011, as a result of his arrest and conviction for Criminal Mistreatment of his child [BMAO]." The parties 

### agree this finding contains a typographical error. It is undisputed that Ostranderwas actuallyjailed from November 2009 to January 2010. 

### 2The Departmentalso petitioned to terminatethe parentalrights ofBMAO's mother. That petitionwas granted inDecember 2011 and is not at issue in this appeal. -3-68761-1-1/4 satisfy two prongs before terminating parental rights. First, itmust 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 ofthe hearing, have been removed from the custody ofthe parentfor a period ofat 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 ofcorrecting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; (e) Thatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent inthe future....; [and] (f) That the continuation ofthe parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. RCW 13.34.180(1); In re Welfare ofA.B.. 168 Wn.2d 908, 911-12, 232 P.3d 1104 

### (2010).3 "Clear, cogent, andconvincing evidence exists when the ultimatefactin issue is shown bythe evidence to be 'highlyprobable.'" Inre Dependency ofK.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting Inre Welfare ofSeqo, 82 Wn.2d 736, 739, 513 

### P.2d 831 (1973)). Second, the Department must prove by a preponderance of the evidence thattermination is inthe child's best interests. RCW 13.34.190(1 )(b); A.B., 

### 168 Wn.2d at 912. The Department may proceed to the second prong only if itsatisfies its burden on the first prong. AJL, 168 Wn.2d at 911. Whetherthe State met its burden 

### on both prongs is a question of law we review de novo. Inre Dependency ofK.N.J., 171 Wn.2d 568, 574, 257 P.3d 522 (2011).



### 3Ostranderonly challenges thetrial court'sfinding underRCW 13.34.180(1)(d). Hedoes not dispute any of the other elements under RCW 13.34.180(1). He also does not dispute the court's best interests finding under RCW 13.34.190(1 )(b). -4-68761-1-1/5
When the trial court has weighed the evidence, we ask only whetherthe court's findings offact are supported by substantial evidence and whetherthose findings supportthe court's conclusions of law. In re the Dependency of P.P., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial evidence' is evidence in sufficient quantity to 

### persuade a fair-minded, rational person ofthe truth ofthe declared premise." In re Welfare ofT.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009). We will not disturb 

### findings supported by substantial evidence. In re Aschauer's Welfare, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). In addition, unchallenged findings are verities on appeal. In re Dependency ofJ.A.F., 168 Wn. App. 653, 667, 278 P.3d 673 (2012). Because the 

### fact finder has the advantage ofobserving the witnesses, "deference to the trial court is 'particularly important in deprivation proceedings.'" K.R.. 128 Wn.2d at 144 (quotingin

re Welfare of Hall. 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)). Accordingly, we ask 

### "onlywhetherthe evidence most favorable to the prevailing party supports the 

### challenged findings, even ifthe evidence is inconflict." Thomas v. Ruddell LeaseSales. Inc..43 Wn. App. 208, 212, 716 P.2d 911 (1986). We do not review credibility determinations or reweigh the evidence. Inre Welfare ofC.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006). 

### Ostranderchallenges the sufficiency of the evidence supporting the trialcourt's finding under RCW 13.34.180(1)(d) that: 

### 2.9 Services ordered [in the dispositional order] have been expressly and 

### understandably offered or provided to the father and allnecessary services 

### reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided 

### to the father; including drug and alcoholtreatment, random urinalysis (UAs), individual mental health counseling, parentcoaching and a psychological evaluation with parenting component.68761-1-1/6

This challenge fails because substantial evidence supports the court's finding. The Department presented evidence that Ostrander's primary parental deficiencies resulted from drug and alcohol abuse, coupled with mental health issues. Ostrander does not argue that the Departmentfailed to offer orprovide services to correct these deficiencies. Instead, he argues that the trial court identified additional deficiencies for which no services were offered or provided: Inordering termination, the trial court expressed concern about Mr. Ostrander's prognoses regarding his substance-abuse treatment and mental health, for which he had received services. CP 210-11 (FF 2.19-20, 2.26-30). But the court also based its decision on a number of other factors. In its oral 

### ruling,'41forexample, thecourtfound that the "lackof an actual orconcreteplan for housing, care for [BMAO], and self-sufficiency are evidence that [BMAO] would be at risk of harm ifthe Court were to order reunification." [VRP (Apr. 18, 

### 2012) at] 667. In its written findings, the court found Mr. Ostrandercurrently unfit because he "lacks the insight to move to the next level ofcompetence in the foreseeable future." CP 211 (FF 2.25). The courtfurther noted its concerns 

### about Mr. Ostrander's "history ofpoordecision-making," his "housing and 

### employment instability," and his failure "torecognize the risk to the child and his own responsibility for creating the conditions the childwas found in." ]d., (FF 2.26,2.27,2.31). 

### Appellant's Motion forAccelerated Review at 10-11. He argues that additional services

were necessary to correctthese newly-identified deficiencies: 

### Targeted counseling could have helped [Ostrander] understand issues likethe need to maintain a stable residence, appropriate cleanliness standards for a 

### home with a child, children's hygiene and nutrition needs, managing time and 

### transportation issues, and developing specific plans for the future. Follow-up care could have taught him to actually implement and maintain these behaviors. And ifhe had received assistance locating and securing suitable housing, he 

### may have been able to avoidmoving repeatedly. Services like these would have helped Mr. Ostrander remedy the deficiencies that the trial court citedin support oftermination.



### 4The trial court expressly incorporated its oralruling into itswritten findings of fact and conclusions oflaw.68761-1-1/7 Appellant's Motion for Accelerated Review at 11-12. To summarize, Ostrander believes the Department should have offered or provided "[t]argeted counseling," "[f]ollow-up care," "assistance locating and securing suitable housing," and other "[s]ervices likethese." Appellant's Motion forAccelerated Review at 11-12. Because the Department did not offer or provide these services, he 

### argues, the trial court erroneously found that "allnecessary services reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided 

### Ostrander's argumentfails. As the party claiming error, he "must present 

### argumentto the court why specificfindings of fact are not supported bythe evidence and must cite to the record to supportthat argument." Inland Foundry Co. v. Dep't of Labor& Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001); see also RAP 10.3(a)(6) 

### (appellate brief should contain argument supported by"references to relevant parts of the record"); Fisher Props.. Inc. v.Arden-Mavfair. Inc.. 115 Wn.2d 364, 369, 798 P.2d 

### 799 (1990) (appellate court applies presumption in favor of the trial court's findings). Ostrandercites nothing inthe record suggesting thattargeted counseling, follow-up care, and assistance locating and securing suitable housing were (1) necessary, 

### (2) reasonably available, and (3) capable ofcorrecting his parental deficiencieswithin the foreseeable future. He merely assumes those facts. 

### This court has no obligation to search the record forfacts supporting Ostrander's assertions. Mills v. Park. 67 Wn.2d 717, 721, 409 P.2d 646 (1966). Rather, unless the 

### appellantdemonstrates error, wewill defer to the trial court's finding that the68761-1-1/8 Department offered or provided all necessary and reasonably available services. K.R., 128 Wn.2d at 144; Fisher Props., 115 Wn.2d at 369. Ostrander argues, "[A]s with any challenge to the sufficiency ofthe evidence, Mr. Ostrander does not need to identify evidence to affirmatively support his claim; the lack of evidence in the record on these matters indicates instead that the Departmentfailed to meet its burden at trial." Appellant's Reply Br. at 4. He misstates his burden on 

### appeal. Because he challenges the court's finding regarding the Department's offer of services, he must pointto evidence inthe record demonstrating the necessity and reasonable availability ofadditional services capable ofcorrecting his deficiencies inthe foreseeable future. KJ1, 128 Wn.2d at 144; Fisher Props.. 115 Wn.2d at 369. By 

### failing to cite the record, he cannot sustain this burden. For the first time in his reply brief, Ostrander cites the trialtestimony of a 

### psychologist and a social worker to argue that targeted counseling and housing assistance were necessary and reasonably available services. We need not consider 

### this untimely argument. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Regardless, the cited testimony does not support Ostrander's claim. Neitherwitness testified that Ostrander needed targeted counseling and follow

### up care to supplementexisting mental health care or that he would benefitfrom assistance locating and securing suitable housing. 

### We also note that Ostranderfails to specify whatexisting and reasonably 

### available services might constitute targeted counseling and follow-upcare, and how such services would differ from the mental health care to which he already had access. 

### At trial, no witness used the phrase "targeted counseling." Ostrander also fails to

-8-68761-1-1/9 explain precisely whattype ofassistance he needed with regard to locating and securing suitable housing. His argument thus fails for the additional reason that his briefing is inadequate. See Palmerv. Jensen. 81 Wn. App. 148, 153, 913 P.2d 413 (1996) ("Passing treatment of an issue or lack of reasoned argument is insufficientto meritjudicial consideration."). Even ifwe assume without deciding that targeted counseling, follow-up care, and housing assistance were necessary and reasonably available services capable of correcting Ostrander's parental deficiencies within the foreseeable future, Ostrander fails to explain why the Department was obligated to offer or provide those services in addition to the services italready offered or provided. It is well established that the Department need not offer a parent every potentially helpful service. Instead, "[w]hen a 

### parent is unwilling or unable to make use ofthe services provided, DSHS is not required to offer stillother services that might have been helpful." In re Dependency ofT.R.. 108 Wn. App. 149, 163, 29 P.3d 1275 (2001). The record shows that Ostranderwas frequently unwilling or unable to make use 

### ofthe services provided. He wasjailed for briefperiods in July and August 2010 and 

### again fromJanuary to May2011. Each jail term directlyresulted from his failure to appear at review hearings. And even when he was not in jail, Ostrander had trouble 

### following through with existing services. Hedoes notchallenge the following findings of fact, which are verities on appeal: 

### 2.12 The father entered inpatienttreatment inOctober2010, but soon left treatment before successful completion indicating he was leaving for to see his ailing grandfather.

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2.16 Upon release from inpatient treatment [in June 2011] the father immediately began attending daily sober support group meetings; however, he failed to engage in an outpatient drug and alcohol treatment program until September2011, despite reminders from his assigned social workerthat this was a court ordered service. 2.18 The father has had medical funding to support individual mental health counseling overthe course ofthe dependency, but has only periodically accessed those services. 2.19 The father was approved to receive outpatient mental health services at Harborview Medical Center three differenttimes between February and November 2010. Following each approval for services, outpatienttreatment appointments were set and the fatherfailed to return for his scheduled appointments. Following his last approval the father was limited to only two missed appointments due to his failure to demonstrate treatment adherence. He did not attend those appointments and his approval for treatment was terminated. 2.20 The father did not engage in individual mental health treatment again until March 2012. 

### (Citations omitted.) The court also found that Ostrander's general disinterest in treatment hampered his progress: 2.13 The father was unavailable to participate in services or visit his son for 

### several lengthy periods during the 2-1/2 yeardependency. The father's prolonged absences resulted from his choice to "give up" for a period of time, and as a result ofchoices regarding his criminal conviction [for] mistreatment of the child. 

### 2.33 The father has demonstrated a willingness to participate inservices, but has been unable to take full advantage ofavailable programs due inpartto his 

### inability to follow-through and in part to his lack of appreciation of the necessity for those services. 

### Ostrander's inabilityto follow through with existing services excused the Department 

### from offering additional services, even assuming they were necessary, reasonably available, and capable of correcting Ostrander's parental deficiencies within the foreseeable future. TJ^, 108 Wn. App. at 163. Hischallenge to the trialcourt's finding under RCW 13.34.180(1 )(d) fails for this additional reason.

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CONCLUSION 

### For the reasons stated above, we affirm the termination ofOstrander's parental rights to BMAO.

WE CONCUR: 

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