### FILED 

### May 24, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE Inthe Termination ofParental Rights to ) ) ) ) ) ) ) ) ) No. 32948-8-111 M.A., E.A., R.A., R.V.-A. (consolidatedwith No. 32949-6-111 No. 32950-0-111 No. 32951-8-111)
UNPUBLISHED OPINION LAWRENCE-BERREY, J.

- J.V. 1appeals from thetrial court's orderterminating her parentalrights to her four children.2 She argues thatthe trial court erred in finding that all necessary services hadbeen offered orprovidedbecausetheDepartment ofSocial and Health Services (the Department) failed toprovidetimely servicestailoredtoherhearing loss. In doing so, J.V. also argues thatthe Departmentviolatedboththe Americans with DisabilitiesAct (ADA) andAdministrative Policy7.20. Finally, J.V. argues thatbecause

1Forpurposes ofthis opinion, theparents' and children's initials are used inplace oftheirnames. 2 This courtrecently granted J.V.'smotion so she couldproceedinthetrial court andhave it approve an open adoption agreement. This opinionhas nobearing onJ.V.'s rights as set forth inthat agreement.No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
the Department did not offerproper services, it failed to prove under RCW 13.34.180(1)(e) that little likelihood existedthat herparental deficiencies wouldbe remedied soher children could be returned to her in the near future. Forthe reasons stated below, we reject her arguments and affirm the termination order. FACTS A. Events leading to dependency J.V. is the mother ofM.A. (born in May 2011), E.A. (born in May 2010), R.A. (born in August 2007), and R.V.-A. (born in November 1998). J.A. is M.A., E.A., and R.A.'s father, and A.A. is R.V.-A's father. 3 J.V., R.A., and R.V.-A. all have Waardenburg syndrome and hearing loss.4 R.A. also has cognitive delays and is likely autistic. E.A. andM.A. do nothave these conditions. J.V.'sprimary language is American Sign Language (ASL) and her secondary language is writtenEnglish.5 The family first became involved with the Department in February 2011. Atthis point, J.V. and J.A. livedtogetherwi.th the four children, hadhousing, and had access to a

3 Thetrial courtterminatedJ.A.'s and A.A.'s parental rights by default beforethe trial in this case, and neither are parties to this appeal. 4 Waardenburg syndrome is a genetic disorderthat causespigmentation issues in the eyes and hair, profoundhearing loss, and changes in facial proportion. 5 ASL and English are two entirely different languages-it is a common misperceptionthat ASL is simply signedEnglish. 2No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A relay phone system.6 Child Protective Services (CPS) received a reportthat R.A. "escaped," and that someone found herwandering several blocks from J.V.'s home. Ex. P 1at 3. The Department was concerned aboutthe lack ofstructure and routine in the home, lack ofparenting skills, and was also concernedthat R.A.-whowas almost four years old-was noncommunicative. The Department attempted to putFamily Preservation Services (FPS) in the home several times. Duringthe first round, the family only participated in one ofthe four FPS sessions and the Departmentterminated FPS. The Departmentreferred J.V. and J.A. for FPS two more times and the parents attended a few sessions, but they ignored the services FPS offered and did not improve their parenting skills.

6A relay cell phone has a front-facing camera, andthe user downloads an application and subscribes to a video relay service provider. The personmakes a video call through the relay service, and the application connects the person with an ASL interpreter. The person signs for the interpreter, andthe interpreterthenrelays the message to the person on the other end ofthe line in audible speech. Theperson on the other end ofthe line then responds in audible speech, and the interpreterrelays the message to the caller in ASL. A teletypewriter, in contrast, is a typewriter-sized keyboard connected to a land line, where the person who is hard ofhearing places the call, types his orher message, and an operatorrelays that message to the person on the other end ofthe phone in audible speech. 

### 3

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
The Department filed a dependencypetition in March 2012. Atthe shelter care hearing the trial court ordered the children to remain in J.V.'s and J.A.'s care, but also ordered random urinalysis (UA) and breath alcohol (BA) testing, a domestic violence assessment, FPS services, weekly contactwith the Department, no other adults in the home, and for the parents to use the light and motion sensors. The trial court also ordered J.V. and J.A. to enroll E.A. in early head start and to enroll R.A. in Division of Developmental Disabilities (DDD) services. The FPS provider and guardian ad litem (GAL) visited J.V.'s and J.A.'s home and
saw that the home was very dirty and cluttered, which the parents blamed on R.V.-A. The children were dressed in dirty clothes, food was on the floor, andthe childrenwould crawl around and eatthe food. The Department was also concerned that J.V. and J.A.
were not complying with services, left the children unsupervised, and also allowedthe children to use the pool belonging to their next door neighbor, who was a registered sex offender. The Department moved the trial courtto place the children in foster care. J.V. and J.A. agreed to place the children with J.A.'s parents, and the Department laterplaced them with foster families. The Department assigned social workerMarci Crockerto the
case.

4No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
J.V. agreedto dependency on May 9, 2012. J.V. agreed to participate in random UA/BA monitoring, angermanagement, domestic violence prevention services, family therapy, and a neuropsychological evaluation. B. J.V.'s engagementwith services 1. Counseling Ms. Crockerreferred J.V. for anger management and domestic violence prevention services through Bridges ofSafety on March 12, 2012 and again onJune 12, 2012. J.V. did not comply with those services. Atthe August 16, 2012 review hearing, the trial court ordered for these services to be addressed through individual counseling instead. Ms. Crockerreferred J.V. for family therapy with Mary Anne Sacco twice. Ms. Crockerreferred J.V. to Ms. Sacco to address a number ofissues, such as how J.V. lacked parenting skills, used drugs, generally ran the family poorly, did notprovide safety in the home, did not supervise the children, and allowed the children to witness domestic violence. Ms. Sacco attempted to meet with J.V. several times, and was able to meet with her once at a restaurant by J.V.'s house. Ms. Sacco made another appointmentwith J.V. afterthis first meeting, butJ.V. did not show up for the appointment. Ms. Crockerthen arranged for Ms. Sacco to attend a visitation with Lynn Lumsden-anASL interpreterwho is also a mental health


### 5No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A therapist-sothat Ms. Lumsdenwould be able to translate differentparentingtechniques between Ms. Sacco and J.V. J.V. did not attend this visitation. Ms. Sacco keptthese appointments scheduled every Monday with the hope that J.V. would attend, and Ms. Crocker arranged for transportation and interpreters for these appointments, butJ.V.
never contacted Ms. Sacco. Ms. Crocker also referred J.V. for individual counseling. She first referred J.V. for counseling with Karen Lydon because Ms. Lydon is also an ASL interpreter. Ms. Lydon
was unable to take any new clients, so Ms. Crockerreferred J.V. to Megan Stofergen. J.V. met with Ms. Stofergen at least one time, and Ms. Lumsden served as the interpreter. Ms. Crockerreferred J.V. to Ms. Stofergen again after J.V. and R.V.-A. asked for counseling together, and Ms. Crocker scheduled three or four sessions. R.V.-A showed up for all ofthese sessions, butJ.V. did not. On June 21, 2013, Ms. Crockerreferred J.V. for individual therapy with StevenErickson, with Ms. Lumsden as the interpreter. J.V. did not attend these sessions, although Ms. Crockermay nothave been in contactwith J.V. at this time. On September 24, 2013, Ms. Crocker scheduled another session with Ms. Stofergen, R.V.-A., and J.V., with Ms. Lumsden serving as interpreter. J.V. noshowed. Ms. Crockerrescheduled this meeting for October 1, and then again on October 8, October 15, and October 23. J.V. no-showed each time.
6No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
Ms. Crockerwas exchanging "constante-mails" with J.V. during this time. Report ofProceedings (RP) at 36. J.V.'s responses to Ms. Crocker indicated she received notice ofthe appointments, and afterher no-shows she wouldprovide various excuses as to why she was not there, such as an inabilityto find the address. Despite receiving simple and clear directions to the appointment, J.V. still would not show. 2. Neuropsychological evaluation Forthe neuropsychological evaluation, Ms. Crocker originally contactedDr. Jennifer Van Wey. However, Dr. Van Wey toldMs. CrockerthatJ.V. needed a psychologistwho was fluent in ASL, and referred Ms. Crockerto Dr. Jaime Wilson. Dr. Wilson is located in Tacoma, Washington, and Ms. Crocker arranged for him to travel to Spokaneto complete J.V.'s evaluation on October 11, 2012, and R.A.'s evaluation on October 12, 2012. Ms. Crockertransported J.V. and R.A. to the evaluations. Dr. Wilson determined that J.V. has below average intelligence, is mildly impaired, and likely would notbe able to live independently on her ownwithout assisted living support. J.V. told Dr. Wilson that she used methamphetamine and marijuana, and that she did notthink she could stop. Dr. Wilson diagnosed J.V. withbipolar disorder type 2, borderline intellectual functioning, as well as cannabis, hydrocodone, and prior methamphetamine abuse. Dr. Wilsonrecommended weekly UAs and BAs for two years,
7

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A


### medication workup with apsychotherapist, one-on-one parenting instruction on raising an autistic child, supervised visitation, and financial planning. He also recommended psychotherapy sessions, and offered to provide psychotherapy to J.V. via Skype. On April 23, 2013, Ms. Crocker e-mailed J.V. and offered individual counseling with Dr. Wilson via Skype. J.V. refused to see him. 

### 3. Chemical dependency Ms. Crockerreferred J.V. for UAs two days perweek, and e-mailed J.V. and J.V.'s trial counsel the times the UAs were scheduled. The first week ofthe UAs, the Department inadvertently told J.V. the wrong days for herUA appointments, butMs. Crocker fixed the problemby the second week. BetweenMarch 2012 and January 2014, J.V. no-showed for UAs 58 times. J.V. testedpositive for marijuana seven times, and tested negative twice. Consequently, the trial court ordered a chemical dependency assessment. To complete this assessment, Ms. Crockerreferred J.V. to Partners with Families and Children on July 31, 2012, Spokane Addiction Recovery Centers (SPARC)
on October 6, 2012, Bobby Uglioni on October 16, and Adept Assessment Center on November 26.7

7

### The record does not definitively indicate whetherJ.V. attended these appointments, and ifso, what the results ofthese appointments were. 8

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A


### In June 2013, Ms. Crocker again referred J.V. to SPARC for a chemical dependency assessment, and scheduled the appointment for June 21. Ms. Crockerhanddelivered J.V. a service letter on June 20, which contained information aboutthe appointment. J.V. no-showed. Ms. Crocker setup the appointment again for June 26 and requested an interpreter, and J.V. attended. However, SPARC was unable to diagnose J.V. at that appointment, due to J.V.'s inconsistent answers and a lack ofcollateral information. Ms. Crocker then brought SPARC collateral medical information. Ms. Crocker scheduled another appointment with SPARC for September 25, 2013, and neither J.V. nor the interpreter attended. Ms. Crockerrescheduled the appointment for October 13, 2013, and J.V. no-showed again. J.V. never completed the evaluation, and
never enteredtreatment. 4. Visitation Overthe course ofthe dependency, Ms. Crocker made five referrals for visitations at Fulcrum Institute, a family-oriented dispute resolution facility. Ms. Crocker arranged interpreters for all ofthese visits. Ms. Crocker first referred J.V. and the four children for bi-weekly visits at Fulcrum on May 10, 2012. J.V. attended these visits consistently at the beginning ofthe dependency, and demonstrated appropriate parentingbehavior during these visits. J.V. would use her relay phone to confirm the visits with Fulcrum, but
9

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A eventually started sending e-mails to Fulcrum to confirm the visits. At each visit, Fulcrum gave J.V. confirmation for the next visit. J.V. missed visits on July 11, 2012, and August 7, 2012, and Fulcrum dismissed her from theprogram. Ms. Crockerreferred the family to Fulcrum again and visits continued through October 15, when Fulcrum dismissed J.V. a second time. Ms. Crockerreferred the family again, but J.V. canceled that visit. J.V. attended weekly visits betweenFebruary 17, 2013, and June 30, 2013. Ms. Crockerupdated the referral and visits occurred sporadically from July 2013 through December 2013-therewere nine successful visits, J.V. eitherno-showed or canceled nine times, the interpreter no-showed twice, and the foster family canceled twice because the children were sick. J.V. did not attend a visit from September 29, 2013 up to the time ofthe termination trial. Ms. Crocker made her fifth referral to Fulcrum on January 7, 2014. Ms. Crocker e-mailedJ.V. and told herthat J.V.justneeded to e-mail Fulcrum and set the visits up, but J.V. never did. 5. The Department's efforts to communicate with J.V. regarding appointments In the beginning ofthe case, Ms. Crocker offered special mobility services to get J.V. to her appointments. This service picks aperson up, takes thatperson to his or her appointment, then takes the person home after the appointment. Ms. Crockerwould also transport J.V. to counseling and doctor's appointments. 10No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A Throughoutthe course ofthe dependency, Ms. Crocker communicatedwithJ.V. via constant e-mails, back and forth, to tell her about her appointments. Ms. Crocker would also update J.V. on what was happening with the children, and when doctor's visits
were scheduled. J.V. usually responded to most ofMs. Crocker's e-mails. Aftermissing her appointments, J.V. would e-mail Ms. Crocker and tell her, for instance, that she could not find the provider's office. Ms. Crockerwould respond with simple directions, but J.V. would continue to no-show. J.V. was usually receptive to Ms. Crocker's e-mails. However, some ofJ.V.'s emails seemedthreatening to Ms. Crocker. In October 2013, J.V. claimedthat she did not have aphone. So Ms. Crocker sentJ.V. a text message from a different cell phone, and J.V. responded to the text message and asked who the numberbelongedto. Ms. Crocker identified herself. J.V. then e-mailedMs. Crocker and called her a "stupidF'er." RP at 60. J.V. also would e-mail Ms. Crocker and tell Ms. Crockerthat she was not doing what she was supposed to be doing, and that J.V. would "send the FBI outto get [her]." RP at 60. Ms. Crocker also sentJ.V. service letters, which containedthe date, time, address, telephone number, and agency for each appointment. Ms. Crocker would also offerto transport J.V. In the beginning ofthe case, Ms. Crockerwould not always have an
11No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A interpreter, so she would go to J.V.'s home andthe two would write notes back and forth. Later on, Ms. Crocker would usually go to J.V.'s home with an interpreter. Ms. Crocker arranged for ASL interpreters to bepresent at all ofthese appointments. Ms. Crocker also arranged for interpreters to be at all the meetings between herselfand the GAL. The Department contracted with a local ASL interpreter services company in June 2012, and the company supplied interpreters for visitation and service appointments. The Department arranged andpaid for 309 hours ofinterpreter services. Between July 3, 2012, and August 4, 2014, there were 36 appointment cancellations, only two ofwhich were the company's responsibility. Around July 2013, J.V. lost herhousing and moved in with a friend. Ms. Crocker had an address to J.V.'snew house and attemptedto meetwith J.V. at thathouse with other social workers, but no one would answerthe door. This same month, J.V. moved the trial courtto supply herwith a smartphone withrelay capabilities. Thetrial court ordered the Departmentto provide J.V. a smartphone. Ms. Crockerpurchased aphone and gave it to J.V., but discovered that week thatthe phone was not equippedwithrelay capabilities. Ms. Crocker then attempted to get J.V. a relayphone, buthadtrouble obtaining one because ofreimbursement issues with the Department's voucher system. Ms. Crocker made numerous calls, butkept hitting dead ends with the Department.
12

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A During this time, J.V. still e-mailed Ms. Crocker constantly. Ms. Crocker still scheduled J.V.'s appointments and e-mailed J.V. with information about when those appointments were scheduled. Ms. Crockerknew that J.V. already had a separate cell phone she regularly used, and during this time Ms. Crockerwatched R.V.-A. exchange several text messages with J.V.-confirmingthat J.V.'s regularphone worked. The smart phone was supposed to be for emergencies and to allow J.V. to schedule her own appointments, but Ms. Crocker determined that she should still schedule J.V.'s appointments herselfin orderto reduce any barriers to J.V. receiving services. J.V.'strial counsel was simultaneously working to get J.V. a smartphone, and successfully got her
one in November 2013. After J.V. gotthe relay phone, J.V. said that she either lost or broke it. Atthe time ofthe termination trial, Ms. Crocker did not know where J.V. lived. Ms. Crocker continued to contactJ.V. in the months leading up to the terminationtrial and continued to offerto make appointments for her and to get J.V. into services, but J.V.
was unwilling to engage. C. Review hearings The trial court held areview hearing on August 16, 2012. The trial court found that J.V. was noncompliant with all services, exceptthat J.V. had scheduled her
13No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A neuropsychological evaluation and had met with Ms. Sacco the day before. The trial court ordered the same services to continue, and also orderedJ.V. to beginhands-on parenttraining and individual counseling. The trial court held apermanencyplanningreview hearing on December 20, 2012. The trial court found that J.V. had completedher neuropsychological evaluation, butwas noncompliant with all other services. The permanencyplan for the children was to return them to J.V.'scare. The trial court held a regular review hearing on May 9, 2013. The trial court found that J.V. was noncompliant with all ofher services. The permanencyplan was still to return them to J.V.'scare. The trial court held anotherpermanencyplanning review hearing on October 10, 2013. The trial court found thatJ.V. was compliantwith individual counseling with Ms. Stofergen and had attempted to complete the chemical dependency assessment at SPARC, butwas noncompliant with all other services. The trial court modified the permanency plan for the children to adoption. On October 13, 2013, J.V. gave birth to a fifth child. 8 At the birth, both J.V. and the new babytested positive for methamphetamine.

8 The new child is not involved in this case. 14No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
The trial court held another regular review hearing onApril 10, 2014. The trial court found that J.V. was noncompliantwith all services. J.V. was notpresent at the hearing, but showed up afterthe hearing was over. Around this time, J.A. posted on Facebook that he had tuberculosis. Accordingly, the trial court ordered bothparents to complete tuberculosis testing before any additional visits or services couldproceed. D. Termination The Department filed the termination petition on April 23, 2013. The termination trial commenced August 4, 2014. At trial, Ms. Crockertestified that she did not foresee that J.V. would follow through in the near future because at thatpoint J.V. had not followed through in the last two years. Ms. Crockertestified that all services the court ordered were either offered orprovided, and there were no other services that couldhave been offered. The GAL testified that during the time she worked with the family she did not see J.V. make any progress to getto the pointwhere her children couldbe returned. She also testified thatthe Department constantly tried to set up appointments for J.V. andthen J.V. would no-show, that J.V. would not take responsibility for herself, and that J.V.'s low motivation for change disturbed her. The GAL testified that, in her opinion, "all the services that these parents neededwere in place," and that the Departmentwas "going
15No. 32948-8-III; 32949-6-III; 32950-0-III;32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
above and beyond their duty to provide services again and again, reapplying andresetting up services when [the parents] get exited from programs for no-shows." RP at 280. Finally, the GAL testified that she knew "therewas a big issue aboutthe cell phone, but it certainly seemedto me that [J.V.] had access and was able to text [R.V.-A.] on a regularbasis." RP at 280. Dr. Wilson testified that direct one-on-one ASL communication, specifically with psychotherapy and parenting skills, would have been able to help J.V. Dr. Wilson specificallyrecommended one-on-one therapy with a providerwho was fluent in ASL because [ o]btainingthose types ofservices in a general settingwith a sign language interpreterwouldbe less effective because, for one, it's not meeting [J.V.'s] direct communicationneeds.
. . . So when you're trying to get communicationthrough a thirdperson through an interpreter, it's not considered to be equal access as it would be with direct communication. RP at 318. However, Dr. Wilson noted thatthis service "canbe really difficultto find because there's not a lot ofindividual providers that know ASL fluently and can communicate at the level that [J.V.] would need." RP at 318. Dr. Wilson testified that there are some "creativeways to be able to provide directASL communication," such as through a relay phone, and that "it's almost better to not obtain services through a

16No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A secondary communication mechanism," due to the potential for erroneous conclusions and invalid diagnoses. RP at 319. Dr. Wilson noted J.V. had poorjudgment and insight, borderline intellectual functioning, bipolar disorder, and a significant deficit in functioning. TheDepartment asked Dr. Wilson ifJ.V. could remedy the parenting deficits he identified in the near future, and Dr. Wilson testified that "[i]tprobably would not be in the near future, most likely would be on a long term basis because ofthe cognitive deficits thatwere demonstrated." RP at 321. Followingpresentation ofthe evidence and closing arguments, the trial court granted the Department's petition to terminate J.V.'sparental rights to M.A., E.A., R.A., and R.V.-A. In ordering termination, the trial court found that the Departmenthad established each ofthe six elements contained in RCW 13.34.180(1) by clear, cogent, and convincing evidence. The findings specifically listed the services offered orprovidedto J.V., and also listed the specific reasons supporting the trial court's finding that conditions could not be remedied so the children could be returned to J.V. in the near future. J.V. appeals.

17No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
ANALYSIS Parents have fundamental liberty and privacy interests in the care and custody of their children. In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995). Thus, terminating parental rights shouldbe allowed only "'for the mostpowerful reasons.'" Id. (internal quotation marks omitted) (quotingIn re Sego, 82 Wn.2d 736, 738,513 P.2d 831 (1973)). Washington courts use a two-step process when deciding whetherto terminate parental rights. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010); RCW 13.34.190. First, the Departmentmust show thatthe statutory requirements in RCW 13.34.180(1) are establishedby clear, cogent, and convincing evidence. A.B., 168 Wn.2d at 911. Second, the Departmentmust show the termination is in the bestinterests ofthe child by a preponderance ofthe evidence. Id. "Onlyifthe first step is satisfied may the court reach the second." Id. A. First step: RCW13.34.180(l)factors Under the first step, the statutory requirements that the State must allege andprove by clear, cogent, and convincing evidence are set forth in RCW 13.34.180(1):

18

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A (a) The child has been found to be a dependent child; (b) That the courthas entered a dispositional orderpursuantto RCW 13.34.130; (c) That the child has been removed
... from the custody ofthe parent for aperiod ofat 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 orprovided and all necessary services, reasonably available, capable ofcorrectingthe parental deficiencies within the foreseeable future have been expressly and understandably offered orprovided; (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 ofthe parent and child relationship clearly diminishes the child'sprospects for early integration into a stable and permanent home
.... Evidence is clear, cogent, and convincing ifit shows the ultimate fact at issue is highly probable. In re Dependency of K.S.C., 137 Wn.2d 918,925,976 P.2d 113 (1999). On review, the trial court's findings will not be overturned ifsupported by substantial evidence. Id. 

### Evidence is substantial ifit is sufficient to persuade a fair-minded person ofthe truth ofthe declared premise. In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006). Becausethe trial court has the opportunity to hearthe testimony and observe the witnesses, its factual findings are entitled to great deference. K.S.C., 137 Wn.2d at 925. This court does not make credibility determinations or weigh evidence on review. C.B., 134 Wn. App. at 953.
19No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
J.V. raises four issues related to the first step. We take them in order. 1. All necessary, reasonably available, services The trial court may not terminate parental rights unless the Departmentproves "[t]hatthe services ordered under RCW 13.34.136 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(l)(d). "This encompasses 'all reasonable services that are available within the agency, orwithin the community, or those services which the department has existing contracts to purchase' in orderto enable aparent 'toresume custody.'" In re Dependency of T.L. G., 126 Wn. App. 181, 198, 108 P.3d 156 (2005) (quoting former RCW 13.34.136(l)(b)(i), (iv) (2000)). A service is necessary within the meaning ofthe statute ifit is needed to address a condition that precludes reunification ofthe parent and child. In re Welfare ofC.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). "Tomeet this statutory burden, the State must tailorthe services it offers to meet each individual parent's needs." In re Welfare of S.J, 162 Wn. App. 873,881,256 P.3d 470 (2011). To meet its burden underRCW 13.34.180(l)(d), the Department must show it offered orprovided J.V. the required services, and that J.V. either failed to engage or
20No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
waived herrightto such services. In re Welfare of 

### S. VB., 75 Wn. App. 762, 770, 880 P.2d 80 (1994). A parent's unwillingness or inability to avail himselforherselfof remedial services within a reasonable period is highly relevantto this court's determination ofwhetherthe elements ofRCW 13.34.180 are established. In re Dependency ofC.T, 59 Wn. App. 490,499, 798 P.2d 1170 (1990). Ifa parent is unwilling orunable to makeuse ofthe services offered orprovided, the Department is notrequired to offer additional services that mighthave beenhelpful. In re Dependencyof S.MH, 128 Wn. App. 45, 54, 115 P.3d 990 (2005). "[B]ecause RCW 13.34.180(l)(d) limits the services required to those capable ofremedyingparental deficiencies in the 'foreseeable future,' the trial courtcan find that the Department offered all reasonable services ' [ w]herethe record establishes that the offer of[other] services wouldbe futile."' In re Welfare of K.J.B., 188 Wn. App. 263,278,354 PJd 879 (2015) (second and third alterations in original) (quotingIn re Welfare of MR.H, 145 Wn. App. 10, 25, 188 P.3d 510 (2008)), review granted, 184 Wn.2d 1033, 366 P.3d 932 (2016). J.V. argues that the Department failed to offer orprovide all necessary services tailored to her disability because the Departmentprovided services throughproviders who
were not fluent in ASL and provided interpreters to translate, ratherthan usingproviders
21No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
who were themselves fluent in ASL. J.V. points to Dr. Wilson's testimony and the trial court's finding that 'ls]ervicesrecommended would be best directly provided by individuals fluent in ASL as opposed to through interpreters." Clerk's Papers (CP) at 191. The trial court considered Dr. Wilson's testimony at trial and nevertheless found that [t]he services reasonably available were provided in a mannerthat was understandable by [J.V.] thattook into accounther disability. 

### It was necessary for the Department to tailor services for this mother, and the Department did this. CP at 191. The trial court found thatthe Department either offered orprovided all necessary services, noting that J.V. "did not engage in any service, and made no progress in remedying herparental deficiencies." CP at 194. Substantial evidence supports the trial court's finding thatthe Departmenttailored the services it offered to J.V.'s disability. Dr. Wilson testified that it "canbe really difficult to find" providers who are fluent in ASL. RP at 318. Nevertheless, the Department originally contactedMs. Lydon to provide J.V. therapy, but Ms. Lydon was unable to take any new clients. The Department offeredJ.V. individual counseling with Dr. Wilson-who was fluent in ASL-andJ.V. refused to see him. Consequently, the Departmentprovided Ms. Lumsden as the interpreter for the therapy sessions J.V. was supposed to have with Ms. Sacco, Ms. Stofergen, and Mr. Erickson. The Department did 22No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
this because Ms. Lumsden is also a mental health therapist and, therefore, wouldbe the best at translating different parenting techniques. Despite the Department's efforts to provide J.V. with services tailored to her disability, J.V. simply refused to engage. J.V. metwith Ms. Sacco once and Ms. Stofergen at least one time. Otherthan these two meetings, the record is replete with dozens ofservice appointments where J.V. either canceled or simply no-showed. J.V. did not attempt anger management and domestic violence prevention services. Afterthe first sessions with Ms. Sacco and Ms. Stofergen, J.V. no-showed for every otherremaining appointment. The Department arranged andpaid for 309 hours ofinterpreter services, yet there were 36 appointment cancellations, only two ofwhich were the interpretation company's fault. J.V. no-showed for UAs 58 times, and after SPARC was unable to diagnose J.V. at the initial assessment, J.V. no-showed for the reassessment. Ms. Crockercontinuedto contact J.V. in the months leading up to the termination trial and continuedto off erto make appointments for her and to get J.V. into services, butJ.V. was unwilling to engage. Because the record establishes that J.V. was unwilling to make use ofthe services offered, the Department was not required to off er other services-such as services with ASL-fluent providers-thatmight have beenhelpful. S.MH., 128 Wn. App. at 54.
23No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
J.V. similarly argues "thatthe Department failed to tailor the services it provided J.V. when it gave her applications for the relayphone and housing, which were in written English. However, J.V. never attempted to fill out the two-page application. Ms. Crocker gave J.V. the forms on multiple occasions, may have called and scheduled an appointment to apply for housing, and offeredto assist J.V. in filling outthe forms. As withthe other services, RCW 13.34.180(1)(d) did not require the Departmentto go to unreasonable lengths to tailorthe services it offered whenJ.V. was unwilling to engage in them. J.V. further argues that the Department offeredher services and communicated information about her appointments in written English, ratherthan through ASL. J.V. argues that she "cannotbe faulted with the failure to follow through with services when the offers ofservices were essentially offered to her in a foreign language." Br. of Appellant at 20. J.V. cites Dr. Wilson's testimony thatbecause ASL and written English
are different languages, written English "would not be an effective way to communicate with a deafindividual and it would not be considered equal access." RP at 338. While ASL is J.V.'s first language, the record establishes that J.V. was quite capable ofcommunicating in written English. When Ms. Crocker e-mailed J.V. to remind her about her appointments, J.V. would e-mail back. The record establishes that J.V. actually knew when she was supposed to be at her appointments, as evidencedby the fact
24No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
that she would e-mail Ms. Crocker after she missed her appointments and tell Ms. Crocker, for instance, that she could not find the provider's office. Other evidence establishes that J.V. was capable ofcommunicating in written English. J.V. e-mailed Ms. Crocker several times to report instances ofdomestic violence between her and J.A., would send text and Facebook messages to R.V.-A., would e-mail Fulcrum to confirm her visitation appointments, and e-mailed Ms. Sacco to cancel and reschedule their appointments. J.V. e-mailed Ms. Crockerto tell herthat J.A. had

·tuberculosis. When Ms. Crockerused a different phone number to send J.V. a text

message, J.V. e-mailed Ms. Crocker and called her a "stupid F'er." RP at 60. J.V. has been able to communicate with multiple people via writing notes back and forth in English. Therefore, the "constante-mails" and service letters Ms. Crocker sent orhanddelivered J.V. were communicated in a manner J.V. could understand and narrowly tailored to her disability. We conclude the Department offered orprovided J.V. all necessary, reasonably available services, which were tailored to J.V.'s hearing loss, and therefore proved RCW 13.34.180(I)(d) by clear, cogent, and convincing evidence.

25No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
2. Compliance with the ADA In a related argument, J.V. maintains thatthe termination ofherparental rights violated the ADA because the State failed to reasonably tailor the services it offered to accommodate her disability. She argues thatthe Department failed to tailor her services because it did notprovide J.V. services from individuals fluent in ASL, nor did it communicate with her in ASL, but ratherthrough written English. The ADA prohibits a public entity from discriminating against disabledpersons by excluding them from participation in or denying them the benefits ofpublic services and programs. 42 U.S.C. § 12132. The ADA requires the state or otherpublic entity to make reasonable accommodations to allowthe disabled person to receive the services orto participate in the public entity's programs. 28 C.F.R. § 35.130(b)(7). Here, it is undisputed that J.V. is a qualified individual with a disability andthus protected underthe ADA. However, no Washington court has addressed the question of whether an ADA violationprovides an independentbasis for reversing a termination order. InA.J.R., this court recognized that the ADA requires the State to make reasonable accommodations to allow disabledpersons to receive services orto participate in its programs. A.JR., 78 Wn. App. at 230. But it did not directly reach the question of whether aparent may raise the ADA as a defense to the termination ofparental rights.
26No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A Instead, theA.JR. court found on the facts presented that the Department, by providing services designed to meetthe parent's special needs, had met any obligations thatthe ADA might impose. Id. Here, as inA.JR., we reject J.V.'s ADA claim on the same basis we rejected her challenge under RCW 13.34.180(1)(d). As we discussed above, the Department offered to provide her psychotherapy with Dr. Wilson, who is one ofthe few providers in the region who is fluent in ASL. J.V. refused the Department's offer. The Department also provided interpreters for all ofJ.V.'s service appointments, and J.V. failed to attend services. Finally, although written English is J.V.'s second language, the record contains ample evidence that J.V. is sufficiently proficient in written English to have understood when and where her appointments were scheduled. The record establishes that J.V.'s disability was not the reason for her failure to engage in necessary services; rather, J.V.'s failure was due to her lack ofmotivation. Accordingly, we reject J.V.'s ADA claim for the same reason that we rejected her challenge under RCW 13.34.180(1)(d). 3. Compliance with Administrative Policy 7.20 J.V. also argues thatthe Departmentviolated DSHS Administrative Policy 7.20, which requires the Departmentto provide accommodations to make its programs and services equally accessible to people who are deaf. J.V. argues thatthe Department
27No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
violated Administrative Policy 7.20 because the Department communicatedwith J.V. through written English, did nottimely comply with the trial court's orderto provide her with a smartphone with relay capabilities, and gave her applications in English to fill out
on her own.9 Administrative Policy 7.20 requires the Departmentto "provide equal access opportunities to people with hearing loss orpeople with speech disabilities so they may participate in orbenefit from programs, services, or activities in accordance with the ADA." Ex. RI01 at 6. Thepolicy requires the Departmentto "make available appropriate auxiliary aids and services where reasonably necessary to provide effective communication." Id. The policy lists a number ofexamples of"auxiliary aids," which include qualified interpreters and written materials. Id. at 2. First, J.V. argues that the Department violated the policybecause it communicated service appointment information with J.V. through written English. However, the policy lists "writtenmaterials" as an acceptable auxiliary aid under appropriate circumstances. Id. at 2. The Departmentused written materials to communicatethe basic information regarding the service appointments to J.V., and then always providedthe services

9Like with the ADA issue, J.V. cites no authority that would allow this court to reverse a termination order on the basis thatthe Department failed to complywith an agency policy. 28

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V-A


### themselves through an interpreter-another appropriate auxiliary aid under the policy. Again, the record makes clearthat J.V. is sufficientlyproficient in written English to have comprehended Ms. Cracker's e-mails and service letters, which told herwhen and where she needed to be at her appointments. In doing so, the Department fulfilled its obligation to "provide effective communication" underthe policy. Id. 

### at 6. Second, J.V. argues thatthe Departmentviolated the policy when it failed to timely comply with the trial court's order, dated July 26, 2013, which required the Departmentto provide J.V. with a smartphoneby the October 10, 2013 review hearing. The record reflects, and the trial court found, that Ms. Crocker did not ignore the trial court's orderto get J.V. a smartphone and tried hard to obtain one, but had trouble obtaining one because ofreimbursement issues with the Department's voucher system. J.V.'s trial counsel eventually got her a smartphone in November 2013. In its oral ruling, the trial court criticized how the Departmenthandled the smartphone situation, and noted that bureaucratic issues within the Departmentregarding how it would pay for J.V.'s smart phone did not excuse the Department from its obligation to follow its own administrative policy.Nevertheless, the trial court found that "[t]he cell phone issue did not create a barrierto the mother engaging in the services." CP at 192. Substantial evidence supports
29

### No. 32948-8-111; 32949-6-111; 32950-0-111; 32951-8-111 In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A


### the trial's court's finding. Ms. Crockertestified thatthe purpose ofgetting J.V. a smart phone with relay capabilities was that so J.V. could use it in case ofan emergency, and also so that J.V. could set up her own service appointments ifshe wanted to do that. However, Ms. Crocker still set up all ofJ.V.'s appointments in orderto make it easier on J.V., and then Ms. Crocker and J.V. exchanged e-mails regarding the times J.V. needed to be at the appointments. Moreover, the record shows that J.V. already had a separate functional cell phone that she regularly used throughout the entire time that Ms. Crocker attempted to gether a smartphone. Finally, J.V. argues thatthe Departmentviolated the policy when it gave her an application for the relay phone-whichwas in written English-and expectedherto be able to complete it. However, J.V. never attempted to fill outthe two-page application,
even though Ms. Crocker offered to help her. We conclude that the Department did not violate Administrative Policy 7

### .20 because the Department and J.V. were able to effectively communicate by text and byemail throughout the entire dependency. We further conclude thatthe Department's failure to timely obtain a smart phone for J.V. did not create a barrierto J.V. engaging in services.



### 30No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A
4. Likelihood for remedying parental deficiencies in near future J.V. finally argues thatbecause the Department did not offerproper services, it failed to prove under RCW 

### 13.34.180(1)(e) that little likelihood existed thatherparental deficiencies would be remedied so her children could be returned to her in the near future. The Department mustprove "[t]hatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future." RCW 

### 13.34.180(1)(e). The focus ofthis element is whether the identified deficiencies have been corrected. 

### MR.H., 145 Wn. App. at 27. Ifthe parent is unable to resolve his
orher deficiencies within 12 months afterthe child has been declared dependent, the statute's rebuttable presumption applies and the burden ofproduction shifts to the parent, although the Department must still prove it is highlyprobablethe parentwould not improve 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 whether [the Department] has satisfied RCW 13.34.180(1)(e)." 

### Id. Even ifsome evidence suggests thatthe parents may eventually be capable ofcorrectinghis orher deficiencies, termination is still

31

### No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A 

### appropriate where the deficiencies will not be corrected within the foreseeable future. In
re Welfare of A.G., 

### 155 Wn. App. 578, 590, 229 P.3d 935 (2010). The trial court found that [t]here is little likelihood that conditions will be remedied so thatthe children can be returnedto the mother in the near future. Dr. Wilson found that in order for any change in the mother, she would need at a minimum long term individual therapy along with supportive living arrangements and to be drug free. The mother has not maintained a relationship with her children during the past two years ofthe dependency matters, and has not seen her children for over 8months. She has very little, ifany, motivation to change. CP at 195. The trial court concluded that the parent-child relationship had not improved in spite ofall the efforts Ms. Crocker made, that J.V. did nottake advantage ofany ofthe
numerous services the Department offered, and therefore the Department established RCW 13.34.180(l)(e) by clear, cogent, and convincing evidence. Substantial evidence supports the trial court's finding. As discussed above, the Department offered all necessary services to J.V. that were tailored to J.V.'s disability, but she was unwilling to make use ofthem in the 27 months her children were in out-ofhome care. When progress has not been made in 12 months following dependency, a rebuttablepresumption rises that little likelihood exists conditions will be remedied so that the child can be returned to the parent in the near future. Because J.V. failed to

32No. 32948-8-111; 32949-6-111; 32950-0-111; 32951-8-111 In re Term. of ParentalRights to MA., E.A., R.A., R. V.-A produce evidence rebutting the presumption, substantial evidence supports the trial court's RCW 13.34.180(1)(e) finding. J.V. argues that the witnesses simply regurgitated the language ofRCW 13.34.180(1)(e), and this was insufficient to support the trial court's factual finding
.

.However, the Department's witnesses did notparrotthe language ofthe statute-they

gave specific reasons as to why they believed little likelihood remained for remedying conditions in the near future. The GAL specifically testified that she did not thinkthe children could be returned to J.V. in the near future because J.V. repeatedly no-showed at appointments the Department scheduled, continued to pursue domestic violence relationships with J.A., lacked motivation to change herself, and would not take responsibility for what she needed to do. Ms. Crocker identifiedJ.V's lack offollow through with services. Similarly, Dr. Wilson testified that "[i]tprobably would not be in the near future, most likely would be on a long term basis because ofthe cognitive deficits thatwere demonstrated." RP at 321. Dr. Wilson was referring to his earlier diagnoses thatJ.V. has poorjudgment and insight, has below average intelligence and borderline intellectual functioning, has bipolar disorder, and has a significant deficit in functioning. Dr. Wilson testified that J.V.'s motivation to change was very low, and that she wouldhave a
33No. 32948-8-III; 32949-6-III; 32950-0-III; 32951-8-III 

### In re Term. of ParentalRights to MA., E.A., R.A., R. V-A
difficulttime severing herselffrom her domestic violence relationship. This evidence far exceeds a simpleparroting ofthe required standard. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Lawrence-Berrey, J. WE CONCUR: 

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