IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of: C.J.F. (DOB: 03/22/2003), Minor child. INES FAIR and JAKE FAIR, Appellants,

v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, 

### Respondent. No. 74875-1-1 (consolidated with No. 74876-9-1) 

## DIVISIONONE %

re

UNPUBLISHED FILED: January 23. 2017

Cox, J. -Jake and Ines Fair appeal the trial court's orderterminating their 

### parental rights to their son, C.J.F. Both parents contend thatthe Statefailed to prove (1) that all necessary and available services capable ofcorrecting their parental deficiencies were provided, (2) thatthere was little likelihood their 

### parental deficiencies could be remedied so that C.J.F. could be returned inthe
nearfuture, and (3) thattermination ofparental rights was inC.J.F.'s best 

### interests. The parents also challenge the trialcourt's findingthatthe State made active efforts to provide remedial services as required bythe federal and state Indian ChildWelfare Act (ICWA). Because substantial evidence supports the 

### trialcourt's findings and the findings supportthe conclusions of law, we affirm the termination order.No. 74875-1-1 (consolidated with No. 74876-9-l)/2 The Fairs are the parents offour children: daughter S.F. (born March 31, 2001), son C.J.F. (born March 22, 2003), son R.P.F. (born July 26, 2006) and
son B.C.F. (born September27, 2008). C.J.F. was diagnosed with autism spectrum disorder in 2006. He has also been diagnosed with attention deficit hyperactivity disorder (ADHD), obsessive compulsive disorder (OCD) and posttraumatic stress disorder (PTSD). C.J.F. presents with serious behavioral challenges, including aggression, self-injury, and running away. He requires constant adult supervision. On June 17, 2012, the Fairs were putting their children to bed when C.J.F. 

### refused to put on his pajamas. Jake1 hit C.J.F. with a belt on his bare skin approximately 60 to 75 times. C.J.F. arrived at school the following day with 

### extensive bruising on his legs and buttocks. C.J.F.'s teacherdescribed the bruising as so severe she was surprised C.J.F. could even sit down. 

### Further investigation revealed several other instances ofphysical and 

### verbal abuse, particularlyagainst C.J.F.2 C.J.F.'s school bus driver had observed bloody scratches on C.J.F.'s neckthat Ines admitted inflicting. The bus driver had also observed Ines grabbing C.J.F. by the throat and yelling at him. On another occasion, when C.J.F. resisted getting offthe bus, Ines grabbed 

### C.J.F. by the leg and dragged him down the steps onto the sidewalk. C.J.F.'s

1Becausethe parents share the same last name, we refer to them by their first names for clarity. 2According to the testimony at trial, when 2-year-old S.F. complained she was hot and repeatedly tried to take off a sweater, Ines pinned her down and spanked her severely. The Fairs also admitted they spanked R.P.F. and B.C.F. with a belt.No. 74875-1-1 (consolidated with No. 74876-9-l)/3

teacher observed Ines tell C.J.F. that he would have a cold shower and no dinner because he had misbehaved in class. The Departmentfiled a dependency petition and all four children were placed with their paternal aunt and her partner. Jake reported to the Department that he had Cherokee heritage. The Department promptly contacted the three federally-recognized Cherokee tribes, all ofwhich responded thatthe children did not qualify as Indian children underthe Indian Child Welfare Act (ICWA). On January 7, 2013, Jake pled guilty to one count of assault of a child in the second degree. He was subsequently sentenced to a term of 31 months. 

### The terms ofJake's community custody prevented him from living with any ofthe children until April2016. A separate no-contact order prevented Jake from 

### having any contactwith C.J.F. until2023 exceptfor professionally supervised visits. 

### On January 23, 2013, both parents agreed to the establishmentof dependency. The court order required Ines to participate in a parenting class, parent coaching, mental health counseling, a psychological evaluation, an anger 

### managementevaluation and a domestic violence assessment. The court also ordered Ines to participate inclasses and support groups atThe ARC of 

### Snohomish County (ARC), a nonprofitoutreach centerforpeople with disabilities, including autism. The court ordered Jake to participate in a psychological evaluation, mental health counseling, parenting classes and a parenting coach. 

### The Departmentalso referred Jake to ARC upon his release from prison.

### No. 74875-1-1 (consolidated with No. 74876-9-l)/4 The parents complied with all ofthese services, though Ines made only limited use ofARC's resources and Jake did not contactthem at all. Though providers testified thatthe Fairs generally made progress in their services, they continued to have difficultyhandling C.J.F. during visits. For example, the Fairs 

### continued to demonstrate unrealistic expectations for C.J.F.'s behavior. They also continued to physically restrain C.J.F. at visits for minor transgressions, despite the advice ofmultiple professionals, which caused C.J.F. to react aggressively. Atthe time of trial, the parents' visits with C.J.F. were still limited to


### once a week. And C.J.F. was rarely incorporated into the Fairs' visits withtheir other children because itwas too overstimulating for C.J.F. On August 15, 2014, 

### the Departmentfiled a termination petition.3 In June 2015, Jake was enrolled as a member ofthe Cherokee Nation. The Cherokee Nation subsequently notified the Departmentthatthe tribe considered the children to be Indian children as defined by the ICWA. Trial on the termination petition began on November 16, 2015. Atthe time 

### of trial, C.J.F. was 12 years old and had been out of his parents' custody for
more than three years. Following the testimony of 23 witnesses and the admission of 88 exhibits, the trial courtentered findings offact and conclusions of

3The Department did not include S.F. inthe termination petition because she had been returned to her mother's care by that time. The trial court did not terminate the parents' rights to R.P.F. and B.C.F., finding thattermination was not in R.P.F.'s best interests and that the State had not shown that B.C.F. could not be returned to his mother's care inthe nearfuture. Only C.J.F. is the subject ofthis appeal.No. 74875-1-1 (consolidated with No. 74876-9-l)/5 

### law and an orderterminating the Fairs' parental rights to C.J.F. Both parents appeal. SERVICES The Fairs contend thatthe Departmentfailed to provide them with all 

### necessary services capable ofcorrecting their parental deficiencies. Specifically, the Fairs argue thatthey were not provided with hands-on parenting training for children with autism. We disagree. 

### Parental rights are a fundamental libertyinterest protected bythe United States Constitution.4 To terminate the parent-child relationship, the Department must prove each of six statutory elements of RCW 13.34.180(1) by clear, cogent, 

### and convincing evidence.5 Ifthe trial court finds thatthe State has met its burden under RCW 13.34.180, it may terminate parental rights if italso finds by a 

### preponderance of the evidence that termination is in the "bestinterests" of the child.6 

### One ofthese elements the Department must prove isthat "the services 

### ordered [by the court] have been expressly and understandably offered or 

### provided and allnecessary services, reasonably available, capable of correcting the parental deficiencieswithin the foreseeable future have been expressly and

4Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d 599 (1982). 5In re Dependency of K.N.J.. 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). 6RCW 13.34.190(1 )(b). 5

### No. 74875-1-1 (consolidated with No. 74876-9-l)/6 

### understandably offered orprovided."7 A service is "necessary" ifit is "needed to address a condition that precludes reunification ofthe parentand child."8 A service is "reasonably available" if it is "available within the department or 

### supervising agency, or within the community" or "the department has existing 

### contracts to purchase" it.9 However, ifa parent is unwilling or unableto make

use ofthe services offered orprovided, the Department is not required to offer 

### additional services that might have been helpful.10 

### Findings of fact must be supported bysubstantial evidence.11 

### Unchallenged findings of fact are verities on appeal.12 In determining whether substantial evidence supports the trial court's findings, we will notweigh the 

### evidence or the credibility of witnesses.13 Here, substantial evidence supports the trial court's finding that all 

### necessary and reasonably available services were offered to the parents. Prior to the dependency petition, C.J.F.'s teachers worked to help the Fairs understand C.J.F.'s condition. They also explained to the Fairs that physical 

### discipline was not effective on children withautism. They referred the Fairs to

7RCW 13.34.180(1)(d). 8In re Dependency ofA.M.M., 182Wn. App. 776, 793, 332 P.3d 500 (2014). 9RCW 13.34.136(1)(b)(vii). 10 Inre Dependency ofS.M.H.. 128 Wn. App. 45, 54, 115 P.3d 990 (2005). 11 Pep. ofKN.J.. 171 Wn.2d at 577. 12 Inre Interest ofJ.F., 109Wn. App. 718, 722, 37 P.3d 1227 (2001). 13 Inre Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003). 6

### No. 74875-1-1 (consolidated with No. 74876-9-l)/7 ARC. ARC offers a wide variety ofresources for parents ofchildren with autism, including trainings, lectures and workshops, supportgroups for parents and siblings, and socialization activities for children. Workshop topics have included medications, legal issues, individual education plans (lEPs) and dietary changes. The Fairs attended some meetings and support groups atARC prior to the dependency proceedings. However, their participation declined dramatically after dependency was established. Jake did not attend any ARC events after his release from prison in October 2014 and Ines attended only one workshop. Ines testified that she was unwilling to make use ofARC's resources unless C.J.F.
was in her care. She testified that "to apply the principles and ideas thatthey 

### had there, which are good ones, in a visitdoesn't really work" because "the situation which visitations are is an artificial one."14 Ines also stated that she felt uncomfortable atARC because she believed the other parents did not like her. 

### Inaddition, the Department referred both parents to Marie Preftes-Arenz,


### a parentcoach and in-home therapistwho has both personal and professional experience involving children with autism. Preftes-Arenz began working with both parents inNovember2012. When Jake went to prison inJanuary 2013, Preftes-Arenz continued to work with Ines until March 2013. Preftes-Arenz 

### worked with the family again from late 2014 until January 2015, and fromApril 2015 up untilthe termination trial.

14 Report ofProceedings (Nov. 30, 2015) at 795. 7No. 74875-1-1 (consolidated with No. 74876-9-l)/8 Preftes-Arenz explained that parent coaching is "hands-on and interactive" 

### and "different from formal education."15 Preftes-Arenz was presentforthe Fairs' visits with C.J.F. She taughtthe parents skills thatwere effective for autistic children, including positive reinforcement, appropriate discipline strategies, and stress managementtechniques. Afterteaching a specific skill, Preftes-Arenz would model the skill for the parents to observe. Preftes-Arenz would then give the parents the opportunity to practice the skill, and provide feedback. However, Preftes-Arenz testified that all autistic children were different and that there was no "one-size-fits-all" strategy for parenting children with autism. She explained 

### that "trying to understand how autism affects [C.J.F.] specifically is one ofthe 

### ways that Ican help the parents parent himbetter."16 Preftes-Arenz also encouraged the parents to develop a "tool kit" ofstrategies so that ifC.J.F. was not responding to one technique, they had other available options. In addition, Preftes-Arenz talked to C.J.F.'s caregivers aboutwhatwas 

### working in their home, and communicated thatto the parents. Preftes-Arenz also encouraged Ines "to attend any workshop or class she can and to keep reading 

### and researching aboutAutism." However, Preftes-Arenz noted that Ines did not follow through with this goal. 

### Moreover, the Department referred C.J.F. to ChristinaAlexander, a 

### therapist at Ryther Child Center, fortrauma-focused cognitive behavioral therapy (TF-CBT). Alexandertaught C.J.F. coping skills such as muscle relaxation, deep 15 id (Nov. 19, 2015) at 637-38. 16Id at 574. 8

### No. 74875-1-1 (consolidated with No. 74876-9-l)/9 breathing and visualization. Bythe time of trial, Alexander had been working with C.J.F. for overtwo years. Alexandermet with Ines twice in2014 and went over 

### some ofthese techniques. However, Ines did not contactAlexander again after these two meetings. The Department also attempted to provide C.J.F. with Applied Behavior Analysis (ABA)therapy, a behavioral therapy specificallytargeted for children on the autism spectrum. Unfortunately, there were no ABA providers in Snohomish County thatwould accept C.J.F. as a client. The Fairs do not challenge the trial court's finding thatthe Department "made a significanteffortto find this service, butwas not able to do so" and "ABAtherapy for [C.J.F.] was not reasonably available."17 C.J.F.'s aunt and her partner had great success managing C.J.F.'s behaviors. The aunttestified that she was willing to work with the Fairs to show 

### them which behavior managementtechniques worked well with C.J.F. Ines refused to speakto the aunt, even referring to her as "it" in front ofthe children. 

### Both the Department and the aunt offered to participate inmediation or dispute resolution to improve the relationship. Ines refused. 

### Finally, Yasmin Amiri, the volunteerguardian ad litem(VGAL), attempted to provide the parents with additional education and training opportunities. Amiri was in a unique position to offerassistance, having previously been a provider of 17 Clerk's Papers at 38 (Findings of Fact 2.80 and 2.81). Though Ines assigns error to these findings, she does not support her assignments of error with legal argument or analysis. Thus, we considerthem as verities. See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

### No. 74875-1-1 (consolidated with No. 74876-9-l)/10 ABAtherapy to children. Amirioffered Ines books and articles on autism, and 

### suggested othertrainings such as those put on bythe VGAL program. Again, Ines refused. Amiritestified that Ines "had developed a certain response mechanism to most people involved inthe case" and would shut down even 

### when people were trying to help her.18 Contrary to the parents' claim, there is no evidence that there were other available services thatthe Departmentfailed to offer. Dr. Jason Prinster, a psychologist who evaluated the Fairs, recommended both parents participate in services for parenting autistic children. However, Dr. Prinstertestified thatthose services "could be a program, classes, [and] other sources of parenting 

### education or coaching."19 Judith Bronson, Jake's domestic violence treatment counselor, testified thatthe parents should be involved in a program "regarding 

### specific parental treatmentof autistic children."20 But Bronson clarified that she
was referring to ABAtherapy, which is a service for the child, not their parents or caregivers. 

### Inre Welfare ofOS.,21 which Ines relies upon, is distinguishable. InC.S., the trial courtterminated a mother's parental rights based on an alleged inability 

### to address her child's special needs. The Department had offered specialized 

### training to the caregivers but not the mother. ButC.S. "does not stand for the 18 Report ofProceedings (Dec. 1, 2015) at 1119. 19id (Nov. 17, 2015) at 393. 20 id (Nov. 30, 2015) at 935. 21 168 Wn.2d 51, 225 P.3d 953 (2010). 10

### No. 74875-1-1 (consolidated with No. 74876-9-l)/11 proposition that noncustodial parents must receive services identical to the foster 

### parents."22 Inany event, unlikeC.S., there was no evidence here that the caregivers received training or services thatthe Fairs did not. Finally, Jake contends thatthe Department should have offered other 

### helpful services, such as alternative for family cognitive behavioral therapy (AFCBT), "therapeutic visits" or family therapy. Butthere is no evidence inthe record that any ofthese services were recommended or reasonably available. Alexandertestified that she did not provide AF-CBT and did not know any providers who did. And Kelli Hogan, a Department social worker, testified that the Departmenttypically did not have contracts for therapeutic visitation. ACTIVE EFFORTS The Fairs argue the State failed to make active efforts to preventthe 

### breakup ofthe Indian family as required by RCW 13.38.130(1). The record does not support this claim. Inthe context of Indian children, federal and state statutes place additional 

### burdens on the State prior to termination.23 The State must also prove that "active efforts have been made to provide remedial services and rehabilitative 

### programs designed to preventthe breakup ofthe Indian family and thatthese 

### efforts have proved unsuccessful."24 "Active efforts" are defined as "a showing to the court thatthe department or supervising agency social workers actively 22 Matter of KM.M., 186 Wn.2d 466, 488, 379 P.3d 75 (2016). 23 25 U.S.C. § 1912; RCW 13.38.130(1), (3). 24 25 U.S.C. § 1912(d); RCW 13.38.130(1). 11

### No. 74875-1-1 (consolidated with No. 74876-9-l)/12 

### worked with the parent, parents, or Indiancustodian to engage them in remedial services and rehabilitation programs ordered bythe court or identified inthe 

### department or supervising agency's individualservice and safety plan beyond simply providing referrals to such services."25 

### The parents contend that referring them to ARC and expecting them to learn about C.J.F.'s needs on their own does not constitute active efforts. But, as 

### discussed above, the Department did more than simply provide referrals. The Department engaged service providers to teach the parents skills for parenting
an autistic child. When the parents had success working with Preftes-Arenz, the Department extended her contracttwice. The Department also updated Ines's psychological evaluation twice in orderto determine ifadditional services were necessary. In addition, the Departmentfacilitated meetings between Ines and C.J.F.'s treatment providers. The Department also offered to improve the 

### relationship between the parents and the caregivers so thatthe caregivers could help the parents understand C.J.F. better. Jerrid Miller, a tribal social workerwith the Cherokee Nation, testified on behalfofthe tribe. Millerreviewed 25 volumes ofdiscovery and participated 

### throughoutthe entire termination trial as the tribe's representative. Miller agreed the Department had made active efforts to provide appropriate services and those efforts had been unsuccessful. He also testified that he had discussed the

case with several other Cherokee Nation social workers and that the tribe 

### supported termination ofparental rights. Miller'stestimony, in addition to the 25RCW13.38.040(1)(a)(iii). 12No. 74875-1-1 (consolidated with No. 74876-9-IV13 otherevidence inthe record, was sufficientto supportthe trial court's finding that active efforts were made. LIKELIHOOD OF REUNIFICATION The Fairs argue thatthe Departmentfailed to prove there was little likelihood that that C.J.F. could be returned in the nearfuture, as required by RCW 13.34.180(1)(e). Again, the trial court's findings to the contrary are supported by substantial evidence. The focus of RCW 13.34.180(1 )(e) is whether a parent's identified deficiencies have been corrected.26 "Even where there is evidence that the 

### parent may eventually be capable ofcorrecting parental deficiencies, termination is stillappropriate where deficiencies will not be corrected withinthe foreseeable 

### future."27 Although the lawprovides no numerical standard to measure the foreseeable future, this determination is a factual inquiry evaluated from "the 

### child'spointofview," which varieswith the child'sage.28 At the time of trial, the parents were visiting withC.J.F. onlyonce a week for an hour. The visits with C.J.F. were separate from the Fairs' visits with their 

### otherchildren, and were typicallysupervised by both a professional visitation 

### supervisoras well as Preftes-Arenz. Department social worker Katrina Maloney testified that movingtowards unsupervised visits with C.J.F. could take

26 Inre Welfare ofM.R.H.. 145 Wn. App. 10, 27, 188 P.3d 510 (2008). 27 Inre Welfare ofAG.. 155 Wn. App. 578, 590, 229 P.3d 935 (2010). 28 Inre Dependency ofA.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004). 13

### No. 74875-1-1 (consolidated with No. 74876-9-l)/14 

### "months."29 Preftes-Arenz testified that reunification of C.J.F. would take "quite a period of time"due to his need forstructure and consistency.30 According to Preftes-Arenz, any reunification plan was "going to be more on [C.J.F.'s] timeline."31 In addition, Preftes-Arenz testified that C.J.F. should not be reunified until after R.P.F. and B.C.F. had been successfully transitioned backto Ines's home, something that had notyet begun. Moreover, Jake was not permitted to live inthe family home orto have any contactwith C.J.F. unless supervised by a professional until 2023. Jake argues that this should not be a basis for termination of his parental rights. He argues that he should be permitted to share parenting responsibility for C.J.F. even ifhe does not live inthe home, as is the case with many noncustodial parents. But 

### this proposal is unworkable ifC.J.F. cannot be returned to Ines's care. The trial court did not err in finding thatthere was little likelihood that C.J.F. could have been returned to the parents inthe nearfuture. BEST INTERESTS 

### Finally, the Fairs challenge the trialcourt's findingthattermination was in C.J.F.'s best interest. 

### As an initial matter, Ines argues thatthe trial court prematurely reached this issue because the State had not established the statutory elements setforth 

### in RCW 13.34.180(1)(d) and (e). Butas discussed above, there was substantial 29 Report ofProceedings (Dec. 1, 2015) at 1216. 30 id (Nov. 19, 2015) at 605. 31 id at 650. 14No. 74875-1-1 (consolidated with No. 74876-9-IV15 

### evidence inthe record to supportthe court's findings thatthese elements were proved by clear, cogent, and convincing evidence. Thus, the court properly reached the second prong ofanalysis: whether itwas in C.J.F.'s best interestto terminate parental rights. The parents also contend that termination was not in C.J.F.'s best interests because he was bonded to them and to his siblings. A child has a right to "a safe, stable, and permanent home and a speedy resolution" ofdependency 

### proceedings.32 Where a parent has been unable to rehabilitate over a lengthy dependency period, a court is "fullyjustified" in finding termination inthe child's best interests ratherthan "leaving [the child] inthe limbo offoster care for an 

### indefinite period" whilethe parent rehabilitates himself or herself.33 The best interests ofa child must be decided on the facts and circumstances ofeach case.34 A trial court is afforded broad discretion in making


### a "best interests" determination, and we give its decision great deference on review.35 

### The trialcourt did not ignore the parent-child bond in making its decision. The parents do not challenge the trialcourt's finding that "[h]isparents clearly

32RCW 13.34.020. 33 Inre Dependency ofT.R.. 108 Wn. App. 149, 167, 29 P.3d 1275 (2001). 34 Inre Dependency ofA.V.D.. 62 Wn. App. 562, 572, 815 P.2d 277 (1991). 35 Inre Welfare ofYoung. 24 Wn. App. 392, 395, 600 P.2d 1312 (1979). 15

### No. 74875-1-1 (consolidated with No. 74876-9-l)/16 

### love[C.J.F.], however they cannot effectively parent him."36 But at the time of trial, C.J.F. had been dependent and out of his parents' care for more than three 

### years. Duringthattime, the parents made progress but did not gain enough skills to be able to parent C.J.F. safely or effectively. 

### We affirmthe trial court's orderterminating the Fairs' parental rights.

WE CONCUR: 

# *^]~<r\J<^v A *Q

36 Clerk's Papers at 35 (Findings ofFact 2.31). 16