### FILED FEBRUARY 7, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Parental Rights to A.M.S. ) ) ) ) ) ) No. 34312-0-111

UNPUBLISHED OPINION SIDDOWAY, J. -Aftera 33-month dependency and 4 days provided for trial, the trial court entered an orderterminating the appellant mother'sparental rights to her daughter, A.M.S. The mother appeals the order, arguing the record does not support a number ofthe court's findings. The record does supportthe findings and we affirm. FACTS AND PROCEDURAL BACKGROUND At issue are the appellant mother's parental rights to herthird child, a daughter born in February 2012. The Department ofSocial and Health Services (Department) became involvedwiththe mother andthe father ofher two youngest children after receiving a referralthatthe couple was using methamphetamineheavily andthe mother's two older children often missed school and were madeto lie to theirteacher about the

reasons why. 1 Whenthe motherwas interviewedby a responding social worker and

1By the time oftrial, the mother'stwo older children livedwiththeirbiological father andpaternal grandfather. The father ofA.M.S. (and ofthe mother's fourth child, A.M.S.'s youngerbrother) does not appeal the termination ofhis parentalrights. A.M.S.'s youngerbrother is the subject ofa different dependency.No. 34312-0-111 

### In re ParentalRights toA.MS. police officer on March 20, 2013, she admitted to drug use and that she and A.M.S.'s father regularly fought. Interviewed at school the same day, the mother's two older children confirmed that they witnessed fighting in the home. The next day, family members participated in a department-convened team decision meeting to determine ifthe mother's case would be voluntary or a dependency. The mother admitted thatviolence occurred in front ofthe children and she claimedto be afraid ofthe father. She agreed at the meeting to obtain a restraining order against him and to participate in substance abuse treatment. Despite her agreement, she was seen in a car with A.M.S.'s father only five days later by a social worker familiar with the case. The social worker confrontedthem and demanded that they go to department offices immediately. There, the mother admitted she had dropped the restraining order against A.M.S.'s father the day before. In light of the mother's intentional violation ofthe agreed safety plan, the Department filed a petition for dependency. On June 7, 2013, the court found A.M.S. dependent. She was placed in foster care. The mother was ordered to complete a chemical dependency assessment, complete a domestic violence assessment, follow all treatment recommendations, provide random urinalysis (UAs), and participate in individual parenting instruction. A chemical dependency assessment ofthe mother performed by Serenity Point Counseling Services (Serenity Point) resulted in an initial recommendation ofinpatient 2No. 34312-0-111 

### In re ParentalRights toA.MS.

treatment, but she wouldhave to wait for a bed to become available. Upon learningthat the mother was several months pregnant, Serenity Point changed its recommendationto intensive outpatienttreatment, which began in mid-May 2013. Because she was compliant and according to Patrick Flores, Serenity Point's program manager, did "very well," the providerrevised its re.commendation and kept her in outpatienttreatment. Report ofProceedings (RP) at 105. She completed intensive outpatienttreatment on July 23, 2013, and completed continuing care on December 30, 2013. Of27 urine drug

screens the motherprovided through the end ofMay 2015, only one came backpositive. The dependency order's requirement for a domestic violence assessment contemplated it would be performedby Woody Koenig, but as ofJune 2013, Mr. Koenig

was no longerunder contracttoprovide services for the Department. According to the originally-assigned social worker, Loni Conklin, "wewere kind ofin limbo at thattime for a couple ofmonths." RP at 190. Nancy Riggle began providing theparents with inhomeparenting skills instruction in June 2013 and Ms. Conklin askedMs. Riggle to incorporate anger management and domestic violence treatmentuntil the Department found a new domestic violence treatmentprovider. The mother began counseling with ReginaEilertson in July 2013, identifying her objective for counseling as learningto manage her emotional volatility and improve her relationships withA.M.S.'s father and others.

3No. 34312-0-III In re ParentalRights toA.MS. Then, in August 2013, the couple met the criteria for participating in a new family treatment courtprogram offered in Walla Walla County. Oversight ofa dependency accepted in the program is transferred from a department social workerto a family treatment court team, with the objective ofmore closely overseeing the parents' treatment and compliance, and thereby expediting reunification withtheir children. The mother began meeting weekly with treatment coordinator Jon Cassetto and approximately every two weeks with Megan Millar, who served as herprimary social worker. The original service plan remained in place but Ms. Millar arranged additional services. By October 2013, the Department had contracted with Stan Woody, a certified domestic violence treatment counselor located in the Tri-Cities, and bothparents completed domestic violence evaluations with him. The mother was determined to be both a victim and a perpetrator ofdomestic violence. Mr. Woody recommended in October and Novemberthat bothparents participate in a 52-weekperpetratortreatment program in the Tri-Cities but it proved not to be feasible. The father had by then been admitted to a full-time GED2 program and the motherwas 7 months pregnant. Moreover, because the couple had been making progress, A.M.S. and the mother's two older children were returned to her home in mid-November. Between caring for the children and all the other services the couple was engaged in, it was not possible for them to have

2 General education diploma. 4 

# lNo. 34312-0-111 In re ParentalRights toA.MS.

twice a weektreatment in the Tri-Cities, an hour's drive from their home in College Place. Instead, Ms. Millar asked Ms. Riggle and Ms. Eilertson to continue addressing domestic violence issues in their work with the mother. In November 2013 the Department also engaged Kip Reese, a mental health counselor, to provide couples' counseling and de-escalation skills training, as well as to be on call for crisis management. Ms. Riggle continuedproviding services until December 10, 2013, at which point services were terminated because she did notbelieve the couple was makingprogress. The mother gave birth to A.M.S.'s younger brother in late December 2013. Mr. Reese continuedto provide couples' counseling until February 2014 and regarded his efforts as largely unsuccessful. He described the "overalltrend" ofthe

course oftreatment as being that the fighting did not stop, and when it happened it was intense. RP at 163. He described the parents as making only "baby steps." 

### Id. In February 2014, the family treatment courtteam learned that law enforcement had responded to a report ofyelling at the family home. The team required the parents to write about whatthey wished to happen ifthe children were removed again, as a way of driving home the importance ofending the pattern ofdomestic violence. Anotherpolice report ofdomestic violence in the household was made in May 2014, leading to a decision-making meeting with the family treatment court team. 5No. 34312-0-111 

### In re ParentalRights toA.MS. Duringthe course ofthe meeting, the couple argued intensely, with A.M.S. present, ending only when the father stormed out. The team concludedthe motherneeded to separate from the father not only to protectthe children from exposure to suchviolence but also because the father had stoppedparticipating in drugtreatment at Serenity Point and testedpositive for meth. The mother was believed to be in recovery, andthe father's

use was putting her recovery atrisk. The father was terminated from family treatment court in or about June 2014. Whenthe motherrefused to abide bythe recommendationthat she stay away from him, she was terminated from family treatment court at the end ofJuly 2014. Atthe time, she

was still receiving counseling from Ms. Eilertson. On September 15, 2014, Ms. Millar learned from the father that A.M.S. had been slightly injuredthe day before when, during a fight betweentheparents, the father inadvertently kicked orpushed a highchair, which struck A.M.S. inthe foot. He also reported thatthe motherwas drinking again, their fighting had increased, and sometime in theprior month, A.M.S.'s youngerbrother had been slightly injured when the mother opened a door, hitting the infant's head. Atthatpoint, Ms. Millar checked with the College Place Police Department, which reported having been called outto the home three othertimes within the preceding months: onJuly 2, July 28, and onAugust 29, the day A.M.S.'s younger brotherwas hurt.

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### In re ParentalRights toA.MS.

Afterreceiving this information, the Departmentremoved all ofthe mother's children from herhome a secondtime. According to Ms. Millar, on a "risk oflethality" scale, the couple exhibited four ofsix indicators ofrisk for a lethal injury: obsessive jealousy and control, escalating violence, unemployment, and lack ofconsequences for continued domestic violence. RP at 224. The children were returned to the foster family with whom A.M.S. had lived before. The foster motherhad maintained a relationship withthe birth mother, babysitting A.M.S. and herbrother occasionally at the mother's request. Followingremoval ofthe children, the mother admitted to one department employee that she had begunusing meth again in February, afterher son was born, and admittedto another that she had been using again since at least April. She said heruse had notbeen detected through UAs because she "was able to time it so she didn't get caught." RP at 3 50. At a dependency review hearing held on October 13, 2014, the motherwas found for the first time to be out ofcompliance with the dependency order and as failing to make progress towardtheproblems that necessitatedA.M.S.'s placement outside the home. She was orderedto continue counseling, demonstrate a recovery lifestyle, refrain from contactingthe father, and complete the recommendedperpetrator'streatment with Mr. Woody. Herreferral to Ms. Eilertson for counseling had expired and she began seeing a new counselor, Elisa Richards. Althoughthe mother initially attended 7No. 34312-0-111 

### In re ParentalRights toA.MS. counseling with Ms. Richards twice a month, she began to attend less regularly in March 2015. The mother returned to Serenity Point for intensive outpatient_treatment in October 2014. She also obtained a restraining order against the father, but she dropped it in late October, informing department personnel that she and the father intended to stay together. Both parents beganthe domestic violence perpetrator's treatment with Mr. Woody in November 2014. By early 2015, the father had stopped attending. In early November 2014, the mother's case was transferred from Ms. Millarback to Janel Torrescano, to whom it had initially been assigned. In January 2015, Ms. Torrescano received a letter from Serenity Point saying that the mother's progress for December had been minimal. And in March 2015, A.M.S.'s pediatrician, who had also provided care to the mother as a child, wrote to Ms. Torrescano to strongly urge her to move forward to terminate the mother'sparental rights

so that A.M.S. could be adopted by her foster parents. The letter expressed the doctor's opinion that it was "cruel and detrimental to [A.M.S.'s] mental health to wait two years in limbo without a permanenthome" and that A.M.S. "is cleaner, calmer, happier and healthier when I see her withher foster parentthan when I see her with herbirth mother." Ex. 1.

8No. 34312-0-III In re ParentalRights toA.MS.

At the dependency review hearings that tookplace on March 16, 2015 and August 31, 2015, the mother was found to be in partial compliance with the court's orders, but

was again found to be failing to makeprogress correcting herparentingproblems. The mother stopped attending group meetings at Serenity Point in June 2015 and

was discharged on July 31, 2015, for aborting treatment. Ms. Torrescano learned ofthe mother's failure to attend in July and also learned that unbeknownst to the Department, the mother had stopped calling in for random UAs in February. The mother submittedto her last drug screen on July 15, which tested positive for hydrocodone. 3 On July 16, 2015, the Department petitioned for termination ofthe mother's parental rights to A.M.S. Although the mother had stopped attending treatment at Serenity Point, the Department's required random UAs were still to be providedthrough that location. The mother began calling in as required for random UAs in August but soon quit. Her last appearance for a urine screen was on September 3, 2015. Although Ms. Richards reported to the Departmentthat the motherpresented as depressed much ofthe time, the mother's counseling attendance was irregular in 2015 and her last reported session with Ms. Richards was in November 2015.

3 The mother provided Serenity Point with an undated prescription for hydrocodone. Lacking a date, Mr. Flores testified that he had no way ofknowing whether her use ofhydrocodone in July was prescribed. 9No. 34312-0-111 In re ParentalRights toA.MS.

The mother last attendedperpetrator treatment with Stan Woody in mid-November 2015. During the year she participated in the treatment, her attendance was very sporadic; according to Mr. Woody's records, she attended 30 groups buthad 20 absences. Termination trial The termination ofparental rights trial began withthe testimony ofa single witness on October 23, 2015, and was then recessed due to a conflict between the mother and her lawyer. The motherparticipated in almost no visitation with A.M.S. in December 2015 orJanuary and February 2016, despite Ms. Torrescano's attempts to arrange visitation. The termination trial continued for three days in late February 2016. Bythat time, A.M.S., then four years old, had lived withher foster family for almost two years. The service providers testified consistently that the mother still needed chemical dependency treatment, more counseling and domestic violence treatment. Mr. Woody testified that the motherhad missed core assignments and would have to start domestic violence treatment over again. Hebelieved she could complete the treatment in another 26 weeks, but only ifshe was consistent, which she had not been in the past. Ms. Eilertson estimated the mother needed another six months' worth of counseling with someone with whom she had an establishedrelationship.

10

### No. 34312-0-111 In re ParentalRights toA.MS.

Ms. Torrescano testified that in her own interactions with the mother, she had not

seenprogress during the dependency. She lacked confidence that the mother was then capable ofbeing in a healthy relationship with anyone. Before she would feel confident recommending areturn ofA.M.S. to the mother, Ms. Torrescano testified she would need to see completion ofan inpatient treatment plan ofat least six months to a year and another six months ofstability thereafter-meaningno domestic violence orhigh conflict relationships, an ability to cope with her emotions, and consistency participating in services and visitation. Ms. Millar testified that at the time she left the case, she would have wanted to see the mother complete the 

### 52 weeks ofperpetrator's treatment, 

### 6 months to a year of inpatient chemical dependency treatment, and another 6 months ofstability before A.M.S. was returned to her mother's home. Margaret Buchan, who had served as A.M.S.'s court appointed special advocate (CASA) since the inception ofthe dependency and was later appointed as CASA for A.M.S.'s younger brother, testified to her opinion that it was in A.M.S.'s best interest for the mother's parental rights to be terminated and for her to be adoptedby her foster family.The mother contested termination, testifying that she had ended her relationship with A.M.S.'s father a year before (although acknowledging that she had seen him again in July 

### 2015 and they had fought). She testified that cartrouble, depression and difficulty 11No. 34312-0-111 In re ParentalRights toA.MS. getting gas vouchers from Ms. Torrescano had caused herto miss a number of appointments with Mr. Woody but she "plan[ned] to go back" and thought she could finish his treatmentprogram in two months. RP at 452. She testified she nowbelieved she had always needed inpatienttreatment for her alcohol and methamphetamine abuse and was "looking into a women's/childprogram"that involved a 30-day assessment. RP at 463. She admittedthat she had notbeen seeing Ms. Richards as regularly as ordered by the Departmentbut claimed thatMs. Richards shared responsibility for cancellations. She said she plannedto "keep [on] working" with Ms. Richards. RP at 465. She admitted that she had not been doing random UAsbecause Ms. Torrescano was skeptical about theirreliability and "I don't see the point." RP at 512. She admitted she had not contacted Ms. Torrescano for two months because she felt that she was not supportive. Atthe conclusion ofthe evidence and argument, the trial court announced from the bench that it was making the statutory findings required to terminate the mother's parental rights. A written orderterminating herparental rights was entered on March 28, 2016. The mother appeals. ANALYSIS "The fundamental liberty interest ofnatural parents in the care, custody, and management oftheir child does not evaporate simply because they have notbeen model parents orhave lost temporary custody oftheir child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Becauseparents have a 12No. 34312-0-111 In re ParentalRights toA.MS.

fundamental liberty interest in the custody and care oftheir children, the State may terminate parental rights "'only for the most powerful [of] reasons.'" In re Welfare of S.J, 162 Wn. App. 873, 880, 256 P.3d 470 (2011) (alteration in original) (quotingIn re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). Washington statutes respond to this constitutional command by providing a twostep process before a court may terminate parental rights. The first step requires that the State prove six statutory elements, the first three ofwhich are procedural and are seldom in dispute.4 Where a termination decision is appealed, it is the State'sproofofthe remaining elements that are most often challenged-those being its burden ofproving [t]hat the services ordered [to be provided to the parent] have been expressly and understandably offered orprovided and all necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future have been expressly and understandably offered orprovided[,] RCW 13.34.180(d); [ t]hatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future[,]

4 The three rarely disputed elements appear at RCW 13.34.180(l)(a)-(c) and provide: (a) Thatthe child has been found to be a dependent child; (b) Thatthe court has entered a dispositional orderpursuantto RCW 13.34.130; (c) Thatthe child has been removed orwill, at the time ofthe hearing, have been removed from the custody ofthe parent for a period ofat least six months pursuantto a finding ofdependency. 13No. 34312-0-111 

### In re ParentalRights toA.MS.
RCW 13.34.180(l)(e); and [t]hat 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)(f). This first step "focuses on the adequacy ofthe parents and mustbeproved by clear, cogent, and convincing evidence." 

### In re Welfare of A.B., 168 Wn.2d 908,911,232 P.3d 1104 (2010) (footnote omitted). "Clear, cogent and convincing evidence exists when the evidence shows the ultimate fact at issue to be highly probable." 

### In re Dependency of K.S.C., 137 Wn.2d 918,925,976P.2d 113 (1999). In addition to finding the six statutory elements, due process requires that a court make a finding ofcurrent parental unfitness before parental rights can be terminated. 

### In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995) (citing 

### Santosky, 455 U.S. at 747-48). This finding need not be made explicitly and satisfying all six ofthe statutory elements raises

an implied finding ofparental unfitness. 

### In re ParentalRights to K.MM, 186 Wn.2d 466,479, 379 P.3d 75 (2016). The second step is for the court to ascertain the best interests ofthe child. RCW 13.34.190(l)(b). "Becausethe parent's rights will already have been observed in the first step, this second step need be proved by only apreponderance ofthe evidence." A.B., 168 Wn.2d at 912.

14No. 34312-0-111 In re ParentalRights toA.MS.

In this case, the mother argues that the Department did notprovide herwith all necessary services; it failed to prove that reunification with A.M.S. could nothappen in the near future, and the trial court erred when it found her currently unfit to parentA.M.S. and that termination ofthe mother's parental rights was in A.M.S.'sbest interest. In reviewing a trial court's decision to terminateparental rights, we will uphold its factual findings "ifsupported by substantial evidence from which a rational trier offact could find the necessary facts by clear, cogent, and convincing evidence." K.S.C., 137 Wn.2d at 925. "Because ofthe highly fact-specific nature ofterminationproceedings, deference to the trial court is 'particularly important.'" K.MM, 186 Wn.2d at 477 (quotingIn re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)). We defer to the trial court's determinations ofwitness credibility and the persuasiveness ofthe evidence. Id. We review de novo whetherthe trial court's findings offact support its conclusions oflaw. Id. We address the mother's challenges in tum. 

### I. Sufficiency of the evidence to demonstrate the State's offer or provision of necessaryservices The State's burden ofproving it offered "all necessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future" requires proofthat it offered services "tailored to each individual's needs." In re Dependency ofT.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). While the legislature

15No. 34312-0-III 

### In re ParentalRights toA.MS.

has not defined "necessary services," case law has defined the term to mean "those services 'neededto address a conditionthat precludes reunification ofthe parent and child."' 

### K.MM, 186 Wn.2d at 480 (quoting

### In re Dependency of A.MM, 182 Wn. App. 776, 793, 332 P.3d 500 (2014)). The mother argues that the Department failed to provide all necessary services because it did not offer inpatient substance abuse treatment orprovide domestic violence treatment in a timely manner. 

### Inpatient substance abuse treatment The dependency order required the mother to "[c]omplete a chemical dependency assessment and successfully complete all recommendations by Serenity Point or other approved provider." Ex. 2 at 11. The court-ordered assessment was performed at the outset ofthe dependency. While Serenity Point originally recommended inpatient treatment, it revised its recommendation because there would be a waitingperiod; the mother's pregnancy presented some urgency; and later, because its personnel believed she was doing very well with outpatienttreatment. As the mother herselftestified, it was "Serenity Point" who "madethe decision for [her] not to go to inpatienttreatment." RP at 467. In questioning by her lawyer, she elaborated: Q So there was never, to yourknowledge, any recommendation for inpatient? A Through them? Yes, there was. 16No. 34312-0-III 

### In re ParentalRights to A.MS. Q When didthat happen? A Two different assessments thathas happened. Q Okay. A The first assessment when [A.M.S.] was taken in 2013. Andbecause I was pregnantwith [my son], I couldn't go. They said we have to get you in IOP right away. There is a liability issue to wait around for inpatient. Q So to clarify, you are saying there was a recommendation for inpatient, butthe recommendationwas overriddenA Correct. Q -based onthe situation? A Yes. Q Andyouwent along with itA Yeah. Q -because you are an addict? A No. Notjustthat reason. I mean--Okay. I mean, they are going to let me do treatmenthere. Q Seemed like a reasonable solution to you? A Right. Especially with that one. I mean, both ofthem. I don'tknow, really. I was so willing and honest in 2014, as well with my assessment that I thoughtthat IOP services could help. RP at 467-68. Even after she relapsed andreturned for more treatment, she testified that it was Serenity Pointthat again offered intensive outpatienttreatment as an option. As she explained: Every time I have had intake appointments with them, they sit down with me and they give me the option for IOP, even this last time. And I have talked to Patwhen I testedpositive for the prescription drug, andtold him I was getting ajob at Sykes and all that and whatthe recommendation was. He had a phone conversationwith me and he told me they were willing to workwith me and they will do IOP again. RP at 467.

17No. 34312-0-111 

### In re ParentalRights toA.MS. Now, having failed to recover with outpatient treatment, she contends that inpatient treatment must have been the necessary service. But as she herselftestified, it is the Serenity Pointpersonnel who "are the provider": They are the ones that are educated in this. And they neverjust said, no, you are not goingtohave an option for IOP. You need to go. And, ofcourse, an addict doesn't necessarily always want to go to inpatient. It's scary. It'shard. It's all those things, I mean. And they always gave me the option to stay and so I did. And I can see my kids. And it'sjustthat is how it worked out every time. RP at 465-66. Asked ifthe family treatment courtteam was involved in the decision to substitute outpatient care, she testified that it was never a team decision; rather, "I have always talked with Andrea Dressler about that." RP at 466. Ms. Dressler is Serenity Point's inpatient case manager. 

### See Ex. 6 at 2. Ms. Torrescano testified that she did not know why Serenity Point gave the mother the option ofdoing intensive outpatient, butthat they, not her, were the certified chemical dependency experts and she would expect the court to go along with their recommendation. She was also aware from conversations with the mother that the motherpreferred outpatienttreatment so that she could "stay in the community," "continue frequent visits with herkids and remain in her home." RP at 351. The mother does not assign error to the trial court's finding that "[t]he mother insisted on doing outpatient treatment, rather than the inpatientprogram Serenity Point initially screened her in for." Clerk's Papers (CP) at 92-93.

18No. 

### 34312-0-111 In re ParentalRights toA.MS.

The trial court found that the Department "offeredthe following services clearly and understandably

... [p]articipate in drug and alcohol treatment assessments and any recommended treatment." CP at 

### 86-87. Substantial evidence supports the finding that the Department offered the assessments and honored Serenity Point's recommendations. There is no evidence that departmentpersonnel overrode treatment recommendations, as the mother implies. Domestic violence treatment RCW 

### 13.34.180(d) does not literally require the Departmentto "timely" offer necessary services. But it does limit necessary services to those "capable ofcorrecting the parental deficiencies within the foreseeable future." And RCW 

### 13.34.180(1 )(e) authorizes the termination ofparental rights where "there is little likelihoodthat conditions will be remedied so that the child can be returned to theparent in the near future." So timeliness matters where it can be shown that early services could have correctedparental deficiencies orremedied conditions in time for the child to be returned, butthe Department offered services too late for the parentto demonstrate correction and remediation at the termination trial. Timeliness did not make that difference here. Assessment was delayed for a few months because no qualified provider was under contract. Treatmentby a fully qualified provider was delayed for a year because it was not feasible in November

### 2013 for the mother-withthree children in the home, another on the way, and other service 19No. 34312-0-111 In re ParentalRights toA.MS.
commitments-totravel two hours to the Tri-Cities for weekly treatment. But by November 2014, with no children at home, it was feasible for her to begin a 52-week treatment program, which could have been completed before the termination trial. The treatment was not completed because the mother was inconsistent in herparticipationso inconsistent that Mr. Woody testified she would have to start over. 

### It is well settledthat the statutory requirement to offer orprovide corrective services does not contemplate an entirely one-way process, and "aparent's unwillingness

or inability to make use ofthe services provided excuses the State from offering extra services that might have been helpful." In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988) (citingIn re Welfare of Ferguson, 41 Wn. App. 1, 6, 701 P.2d 513 (1985)). II. Sufficiency of evidence to support the court's finding that there is little likelihoodthat conditions will be remedied in the near future "While RCW 13.34.180(1)(d) looks specifically at a parent's deficiencies, RCW 13.34.180(1)(e) more broadly requires '[t]hatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future."' K.MM, 186 Wn.2d at 490 (alteration in original). "A determination ofwhat constitutes the near future depends on the age ofthe child and the circumstances ofthe placement." In re Dependency ofT.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005). The youngerthe child, the shorter the "foreseeable future" will be. Hall, 99 Wn.2d at 850-51 (8 months

20No. 34312-0-111 In re ParentalRights toA.MS.

was not in the foreseeable future ofa 4-year-old); In reA. 

### W., 53 Wn. App. 22, 31-33, 765 P.2d 307 (1988) ( 1yearwas not in the foreseeable future ofa 3-year-old);In re Dependency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (6 months was not in the foreseeable future ofa 15-month-old). Ifthe State offers orprovides all necessary services reasonably capable of correctingparental deficiencies within the foreseeable future and the parent does not substantially improve within a year ofthe dependency order, a presumption arises that the State has demonstrated RCW 13.34.180(l)(e)'srequirement that there is little likelihood conditions will be remedied so that the child can be returned to the parent in the near future. In re Welfare ofT.B., 150 Wn. App. 599,608,209 P.3d 497 (2009). "Aparent's unwillingness to avail herselfofremedial services within a reasonable period is highly relevant to a trial court's determination as to whetherthe [Department] has satisfied RCW 13.34.180(l)(e)." Id. Thepresumption applies here, because the Department offered all necessary services and the mother did not correcther deficiencies in the 33 months following entry ofthe dependency order. Yet she argues that the presumption was rebutted because she ended herrelationship with A.M.S.'s father, A.M.S. would not have been harmed by remaining in foster care for the six months it would take for the motherto complete inpatient drug treatment, and any required domestic violence treatment could be completed afterreunification. 21 

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### In re ParentalRights toA.MS.

The trial court did not acceptthe mother's "best case"prognosis for when A.M.S. could bereturned to her care. It found that the motherwould need "at least an additional

one to one-and-a-halfyears ofperfect compliance withthe current serviceplan, in addition to demonstrating actual progress and lifestyle changes"before she could be considered a fit parent. CP at 93. Thetime frame found by the court falls within the range testified to byproviders. Given the mother's failure to remedy conditions for almostthree years with andwithouther children at home, the trial court's finding is tenable and entitled to deference. 

### III Current unfitness "[A] parenthas a due process right not to have the State terminate his orher relationship with a natural child in the absence ofan express or implied finding thathe or she, at the time oftrial, is currently unfittoparentthe child." A.B., 168 Wn.2d at 918. As earliernoted, proofofthe six statutory elements by clear, cogent and convincing evidence satisfies the requirement ofdue process that a parentbe found currently unfit before terminating the parent-child relationship. 

### In re Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). Nonetheless, citing cases from otherjurisdictions, the mother argues that drug abuse alone is an insufficient basis for finding a parentunfit; there mustbe some nexus between the drug use and harm to the child. She also characterizes the evidence ofher domestic violence as limited to herrelationship withA.M.S.'s father and argues that any 22No. 34312-0-111 In re ParentalRights toA.MS.

unfitness attributable to domestic violence terminated whenthat relationship terminated. While couched in "currentunfitness" terms, these arguments are implicitly a second attack on the finding, required by RCW i3.34.180(l)(e), that A.M.S. cannot be returned to the mother in the near future. Both arguments minimize the magnitude ofthe State's evidence ofthe mother's problems with substance abuse and domestic violence. The trial courtwas presentedwith evidence thatthe mother's emotional volatility has a long history-onethat is not confined to herrelationship with A.M.S.'s father. The initial referral oftheparents to the Department was based on concerns aboutthe mother's older children raised by personnel at their school, and characterized the mother as being "verbally aggressive with [school] staffoverthe phone." CP at 2. The referent was worriedthatthe mother "was so belligerentwith staff." Id. When social worker Veronica Sandauwentto the mother's home in March 2013 (with law enforcement backup) to deliver A.M.S. to foster care, both the mother andthe maternal grandmother screamed and yelled; the maternal grandmother even called Ms. Sandau a "spic." RP at 154. Ms. Eilertson testified that the mother wanted to work on managing her emotions and improving her "relationships" (plural), explainingthatthe motherwouldhave fights and arguments, and "[a]ttimes the people that she was engaging with would have to leave the home or she would have to leave the home to cool off." RP at 66.

23No. 34312-0-111 In re ParentalRights toA.MS.

Dr. Alison Kirby, who had been the family physicianwhen the mother was a teen, testified that she saw "warning signs" in the motherthen: "She was struggling. She was angry. She was running away from home. She attempted suicide. She was using meth. She was having high risk behaviors." RP at 41. She saw the mother as "feeling so abandoned when [she was] young and so angry and so frightened andjealous." Id. Dr. Kirby recalled thatthe mother had been charged with assaulting A.M.S.'s father's exwife in a bar, an incidentthat the father also mentioned to police investigating a domestic violence call in 2012. Among exhibits admitted at trial was a collection ofpolice reports ofdomestic violence calls that included 13 involving the mother between May 2012 and January 2015. One involved her getting drunk and breaking a television set that A.M.S.'s father hadjustretrieved from pawn. Six ofthe calls had taken place during the period of the dependency. The trial court found that even as recently as November 2015, the mother had been "explosive, and apparently unable to control her emotions" in an altercation with a visitation supervisor, "demonstrating that, despite nearly three years ofservices designed to address these issues, the mother still had made little to no progress addressing her emotional volatility and control." CP at 92. Perhaps the trial court was skeptical about whetherthe motherhad permanently ended the relationship with A.M.S.'s father, since she had claimed she was ending it, only to revive it, many times before. As she points out, however, the trial court made no 24No. 34312-0-111 In re ParentalRights toA.MS. finding that the couple was still together. Even ifthatrelationship was over, however, the mother's problems with emotional volatility and control affected her dealings with other people and remained untreated. As for substance abuse, the mother was not a person who merely silently struggled with drug addiction; by her own admission, "drug abuse is why there was domestic violence." RP at 451. She testified that it was because ofdrug abuse that the domestic violence "became so volatile, so to speak, which it was." Id. Dr. Kirby and Mr. Reese both testified that exposure to domestic violence has

severe and long-term consequences for children's development. The evidence supports the trial court's finding ofcurrent unfitness. 5

5 In addressing the issue ofunfitness, the mother challenges two ofthe trial court's findings ofspecific facts as unsupported by the evidence: its finding that law enforcement was called to the home in February 2014 due to domestic violence and its finding that in November 2014 the parents continued to engage in heated arguments in front ofthe children. Br. ofAppellant at 1(citing Findings ofFact 2.3(e)(41) and 2.3(e)(52)). The mother argues that the first finding was based on hearsay from Ms. Millar, but no objection was raised to the testimony, which arose in the context ofexplaining the parents' eventual termination from family treatment court. She argues that the second finding misstates Ms. Torrescano's testimony that she arranged for the parents' separate visitation with A.M.S. because ofarguments that hadtaken place in front ofthe children before November 2014. As the State points out, there is evidence ofthe mother fighting in front ofthe children with a visitation supervisor, ifnot with the father, afterNovember 2014. The substance ofboth findings has some support in the record. Considering the trial court's findings as a whole, neither is important.

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### In re ParentalRights toA.MS.

IV. Best interestof the child Finally, the mother challenges the trial court's finding, as the second step in its decision, thatterminating herrights is in the best interest ofA.M.S. As earlier observed, the State is required to prove the best interest ofthe child only by a preponderance ofthe evidence. The mother argues that even ifthe Department established all six statutory factors, termination was not in A.M.S.'sbest interestbecause she and A.M.S. still love each other and the benefit oftermination does not outweighthe harm ofsevering their bond. Whethertermination ofparental rights is in the best interest ofthe child is a fact specific inquiry. 

### In re Aschauer, 93 Wn.2d 689,695,611 P.2d 1245 (1980). "Where a parent has been unable to rehabilitate over a lengthy dependency period, a court is 'fully justified' in finding termination in the child's best interests ratherthan 'leaving [the child] in the limbo offoster care for an indefiniteperiod while [theparent] soughtto rehabilitate himself."' 

### T.R., 108 Wn. App. at 167 (alterations in original) 

### (quotingA.W, 53 Wn. App. at 33). Dr. Kirby was sufficiently concerned about A.M.S.'s need for permanence with her foster family to write an unsolicited letterto the Department, urging it to "choose permanentplacement for [A.M.S.] as soon as possible." Ex. 1. Ms. Buchan, who as the CASA visited A.M.S. every month during the 33-month dependency, testified that A.M.S. and her little brother are loving siblings, that it was intheir best interestto stay 26No. 

### 34312-0-111
·In re ParentalRights toA.MS.

together, and thatthey were in a good and loving foster home thatthey had lived in for much oftheir lives-forA.M.S.'s little brother, for most ofhis life. She testified, as did A.M.S.'s foster mother, that with thepassage oftime, A.M.S. beganto resist visitation with her mother. It couldbe difficult to gether into the car for visitation, andA.M.S. exhibited anxiety before and after the visits. The evidence established that the mother essentially stoppedparticipating in visitation afterNovember

### 2015 and the foster mothertestified thatthereafter, A.M.S. relaxed and exhibited less anxiety. All ofthis is substantial evidence supporting the finding that termination ofthe mother's parental rights was inA.M.S.'s best interest. Affirmed. A majority ofthe panel has determined this opinionwill notbeprinted in the WashingtonAppellate Reports, but it will be filed for publicrecordpursuantto RCW 

### 2.06.040. 

# :izdhw 

# S=· doway,J.

# ~ 1

WE CONCUR:

Pennell, J.

27