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### STATE CF WASMINQfOf. 

### 2013 JUL 29 AH 10: 28

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matter ofthe Dependency of F.K.O., DOB: 04/22/2005, a minor child. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. LINDSEY OLDHAM,Appellant. DIVISION ONE
No. 69750-1- UNPUBLISHED OPINION

FILED: July 29, 2013 Dwyer, J. — Lindsay Oldham appeals from the trial court's order terminating her parental rights to her son, F.K.O. Oldham asserts that the order must be reversed because the Department ofSocial and Health Services (the Department) did not prove that (1) all reasonably available, necessary services, capable of correcting her parental deficiencies within the foreseeable future, were offered or provided to her, (2) she failed to make substantial progress toward correcting her parental deficiency of mental illness, which affects her ability to parent, and (3) she was currently unfit to parent F.K.O. However, a sufficient quantum ofevidence was admitted at trial inorder to support each ofthese findings. Accordingly, we affirmthe trial court's order.No. 69750-1-1/2

I On the evening of November 1, 2010, a police sergeantfrom the 

## Snoqualmie Police Departmentfound F.K.O., who was five years old atthetime,1 wandering inside a bowling alleywithout parental supervision. F.K.O. appeared scared and confused. The police sergeant recognized F.K.O. from 

### approximately 40 previous police encounters involving F.K.O.'s mother, Oldham. The police sergeant subsequentlydiscovered Oldham standing alone outside ofthe bowling alley. When he approached her, she informed him that 

### she was "waiting for a train to comeby." However, notrain trackswerelocated 

### in thevicinity andno train was due. The sergeantobserved thatOldham's 

### speech was disconnected and that sheverbally rambled atlength. As aresult, he concluded that she was unable to care for F.K.O. and needed professional 

### attention. Oldham agreed to see a mental health professional, and was 

### subsequently admitted to a hospital for anevaluation. That night, F.K.O. was placed in protective custody. 

### The following day, Oldham wasadmitted to a mental health facility for furtherstabilization and treatment. There, she was diagnosed with psychotic 

### disorder. However, upon discharge from thefacility on November 5, 2010, Oldham refused to receive anyreferrals to treatmentproviders, assistance with mental health treatment, or medication. 1F.K.O. wasborn onApril 22, 2005. The whereabouts ofhis alleged father—whose parental rights wereterminated in July 2012—remain unknown. 2SinceF.K.O.'s birth, Child Protective Services hadreceived numerous referrals, including four from the Snoqualmie Police Department. 2No. 69750-1-1/3 On March 22, 2011, the trial court entered an order ofdependency and disposition as to Oldham. The disposition order set forth services in which she

was required to participate in order to correct her parental deficiencies. Oldham
was ordered to (1) complete a psychiatric evaluation for medication and follow treatment recommendations, (2) complete a psychological evaluation with a parenting component and follow all recommendations, (3) cooperate with the establishment of paternity, and (4) participate in family preservation and public health nurse services upon F.K.O.'s return home. Moreover, supervised visitation was ordered twice a week. Throughout the dependency, the Department repeatedly advised Oldham ofthe services she was required to complete. Oldham acknowledged that her involvement inthese services was essential to achieving reunification with F.K.O. Nevertheless, at a permanency planning hearing on October 31, 2011, the trial court found that Oldham had neither participated in the ordered services nor 

### engaged in visitations with F.K.O. On January 3, 2012, the trial court ordered a temporary suspension of visitations until Oldham could demonstrate her compliance with mental health treatment. As ofApril 23, 2012, the trial court
once again found that Oldham had failed to avail herselfofany court-ordered services. The Department thereafterfiled a petition on April 27, 2012, seeking termination of Oldham's parental rights. On June 19, 2012, Oldham was involuntarily committed to Western State Hospital for a 14-day competency restoration. A psychiatric assessment was 

### performed on Oldham inwhich she was diagnosed with psychosis, not otherwise
-3-No. 69750-1-1/4 

### specified, and prescribed antipsychotic medication. Shortly after her release from Western State Hospital, Oldham was involuntarily committed to Harborview Medical Center, where she was diagnosed withschizoaffective disorder. At this 

### time, she informed the Department's social worker, Timothy Earwood, that she 

### wished to participatein court-ordered services. This was the first time that Oldhamdemonstrated to Earwood a willingness to engage in the recommended
services. 

### On September 13, 2012, Sound Mental Health completed a 

### "Psychological/Psychiatric evaluation" ofOldham. The clinician diagnosed her with schizoaffective disorder. She recommended against F.K.O.'s return to 

### Oldham and suggested, instead, that F.K.O. "remain in foster careuntil [Oldham] hasparticipated in mental health treatmentfor a longer period oftime." Following a permanency planning hearing on October 8, 2012, thetrial courtfound thatOldham had been "compliantwith what has been ordered but is 

### awaiting further service recommendations." That same day, the courtentered an orderpermitting the resumption ofsupervised visitations. On October 5, 2012, Dr. Steve Tutty metwith Oldham to conduct a 

### "Psychological Evaluation and Comprehensive Parenting Evaluation." In addition tointerviewing Oldham for purposes ofthepsychological evaluation, Dr. Tutty observed Oldham interactwith F.K.O. Atthis point, F.K.O had notseen Oldham 

### for approximately 18months. He did not initially recognize her. In the written evaluation, dated October 11, 2012, Dr. Tutty diagnosed 

### Oldham with schizoaffective disorder, a condition "characterized by labile moods
-4-No. 69750-1-1/5 (severely depressed and euphoric/agitated states) and psychosis (e.g., delusional beliefs, auditory/visual hallucinations, paranoia, etc.) that markedly impair perception and problem solving." Dr. Tutty determined that Oldham's disorder was chronic and severe, and likely to have contributed to her past abuse and neglect of F.K.O. He considered Oldham to be at a high risk for future decompensation episodes, despite her recent engagement in treatment. Dr. Tutty also opined in the evaluation that Oldham remains at high risk with respect to the welfare of [F.K.O.] by virtue of her psychiatric pathology and aforementioned parenting deficits. It is highly unlikely, in this examiner's opinion, that she would be able to remediate her deficits within the time frame allowed the Department for establishing permanency. 

### Accordingly, Dr. Tutty's evaluation recommended against Oldham's reunification with F.K.O. at the time ofthe evaluation or in the foreseeable future. He further recommended that Oldham undertake "extensive psychiatric treatment 

### and parenting education to remediate [her] deficits." To stabilize her condition, 

### the reportsuggested that Oldham engage in case management, individual counseling, and routine psychiatric visits over the course of the following 12
months. 

### The termination hearing took place on November 13 and 14, 2012. At this 

### time, F.K.O. was seven years old and had been removedfrom Oldham's care for 

### approximately two years. He had been placedwith foster parents and hadgrown attached to them. The trial court made an uncontested finding that F.K.O. was adoptable and had prospects for adoption.No. 69750-1-1/6
Several witnesses testified at the termination hearing, including Oldham, Earwood, the Court Appointed Special Advocate (CASA), and Dr. Tutty. 

### According to Oldham's testimony, at the time of the hearing, she had been 

### consistentlytaking antipsychotic medication forapproximately five months. Moreover, she testified that she had been also receiving medication 

### management and had beentaking parenting classes at Sound Mental Health. Nevertheless, when asked ifanything was necessary for her to do or complete in 

### the event thatF.K.O. werepermitted toreturn to her care, Oldham replied, "[n]o." In histestimony, Dr. Tutty describedschizoaffective disorderas a chronic, 

### lifelong condition involving thevacillation between depressive and psychotic states. He testified that the disorder tends to impair judgment, insight, and 

### social, academic, andvocational functioning. According to Dr. Tutty, the 

### prognosis is poorforthose diagnosed with schizoaffective disorder. The condition can require years of support andtreatment, including long-term 

### counseling. Moreover, Dr. Tutty explained that schizoaffective disordercan adversely affect one's ability to parent. 

### Furthermore, Dr. Tutty averred that, before he could recommend reunification or a transition to reunification with F.K.O., Oldhamwould need to 

### find the properpharmacotherapy combination tostabilize her condition. Oldham 

### would also require extensive mental health counseling and parenting training. In addition, in orderfor visits to ensue, Dr. Tutty recommended thatOldham's condition be stabilized for a period of sixmonths, and that she display adequate parenting skills.
-6-No. 69750-1-1/7
Earwood testified that a substantial amount of time had passed in which Oldham failed to engage in court-ordered services or visitations with F.K.O. He recommended against unsupervised visits because Oldham, at the time ofthe termination hearing, suffered from a major mental illness and had only recently begun treatment. Earwood additionally opined that, in order to achieve reunification with her son, Oldham would need to make progress in her treatment and attain mental stability for at least one year. Finally, Earwood explained that F.K.O.'s needs included an established routine, reliability, a caregiver whom he could trust, and an environment that was less inclined to cause him anxiety. Diana Farrow, the CASA, testified that, because of his age and his acute


### awareness of the uncertainty surrounding his future placement, the "nearfuture" for F.K.O. was within two months following the termination hearing. Thus, it was 

### critical that F.K.O. be permanently placed in that time frame. Farrow also felt that itwas in F.K.O.'s best interests that Oldham's parental rights be terminated. 

### The trial court granted the Department's petition to terminate Oldham's 

### parental rights. In its findings, thecourtdetermined that there was little likelihood that conditions would be remedied such that F.K.O. could return to Oldham inthe


### nearfuture. This was so because, throughout the dependency, Oldham had 

### been unwilling to participate in and successfully complete services offered to correct her parentaldeficiencies. The courtadditionally found that, after overtwo 

### years ofdependency, Oldham was justbeginning to engage in mental health treatment. The trial court also determined that the near future for F.K.O. was 30 

### to 60 days, and thatOldham could not safely parenthim in this time frame.

-7-No. 69750-1-1/8 

### Thetrial court alsomade thefollowing contested findings:3 2.11 The Department has established that all the services ordered by the court in the dispositional order have been expressly and understandably offered or provided to the parents. The Department has also established that all necessary services, reasonably available, and capable ofcorrecting the parental deficiencies within the foreseeable future have been offered or provided to Ms. Oldham. 2.13 [Oldham] has not successfully engaged in services nor has she made substantial progress toward correcting her parental deficiency of mental illnesses, which affects her ability to parent. 2.22 [Oldham] is unfit to parent this child. Her testimony demonstrates that she is unaware of her role in [F.K.O] having been removed from her care and, perhaps understandably, her need to treat her mental health conditions. Oldham appeals.

Oldham first contends that the trial court erroneously found that the 

### Department had established that all necessary services, reasonably available and capable of correcting her parental deficiencies within the foreseeable future, were expressly and understandably offered or 

### provided to her. Because a sufficient quantum ofevidence was introduced insupport ofeach ofthese findings, her claim fails.

3Oldham assigns errorto thefollowing findings offact enteredby thetrial court: 2.11, 2.13, 2.14,2.15, 2.16,2.17, 2.19, 2.20, 2.22,2.23, and 2.24. However, she fails to support most oftheseassignments oferrorwith citation to therecord andlegal authority. Wedonot consider unsupported assignments oferror. RAP 10.3; Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549(1992). Furthermore, unchallenged findings offactare treated as verities onappeal. Fullerv. Emp't Sec. Dep't, 52Wn. App. 603, 605, 762 P.2d 367 (1988). Thus, onappeal, we treatonly thefollowing findings offact as in dispute: 2.11, 2.13, and2.22.

8-No. 69750-1-1/9
"Parents have a fundamental right to the care and custody oftheir children, and a trial court asked to interfere with that right should employ great care." In re Welfare of M.R.H.. 145 Wn. App. 10, 23, 188 P.3d 510 (2008). "[T]ermination of parental rights should be allowed '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) (internal quotation marks omitted) (quoting In re Welfare of A.J.R.. 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). To terminate parental rights, the Department must satisfy a two-step test. RCW 13.34.180(1), 13.34.190; In re Welfare ofA.B.. 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). First, the Department must prove, by clear, cogent, and convincing evidence, the six termination factors enumerated in RCW 

### 13.34.180(1).4 In re Dependency ofK.N.J., 171 Wn.2d 568, 576-78, 257 P.3d 522 (2011). One such factor requires the Department to prove that "the services ordered under RCW 13.34.136 have been expressly and understandably offered


### orprovided and all necessary services, reasonably available, capable of

4The six termination factors are: (a) That the childhas been found to be a dependent child; (b) That the court has entered a dispositional order pursuant to RCW 13.34.130; (c) That the child has been removed orwill, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding ofdependency; (d) That the services ordered under RCW 13.34.136 have been expressly and understandablyoffered orprovided and all necessary services, reasonably available, capable ofcorrecting the parental deficiencieswithin the foreseeable future have been expressly and understandably offered or provided; (e) That there is little likelihood that conditionswill be remedied so that the child can be returned to the parent inthe near future.... (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. RCW 13.34.180(1).
-9-No. 69750-1-1/10 correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided." RCW 13.34.180(1 )(d). These services "must be tailored to each individual's needs." In re Dependency ofT.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). "Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be 'highly probable.'" In re Dependency ofK.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (internal quotation marks omitted) (quoting In re 

### Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). The second step focuses on the child's best interests and is reached only ifthe first step is satisfied. A.B.,
168Wn.2dat911. 

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

### determining whetherthe court'sfindings offact are supported bysubstantial evidence and whether those findings support the court's conclusions oflaw. In re Dependency of P.P., 58Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial evidence' is evidence in sufficient quantity to persuade a fair-minded, rational 

### person ofthetruth ofthe declared premise." In reWelfare ofT.B., 150Wn. App. 599, 607, 209 P.3d497 (2009). Thedetermination ofwhether the findings offact


### are supported by substantial evidence "mustbe madein light ofthe degree of proofrequired." PJL 58Wn. App. at25. Where, as here, theproofrequired is clear and convincing, "thequestion on appeal is whether there is substantial 

### evidence to supportthefindings in light ofthe highly probable test." PJ1, 58Wn. App. at 25.

10No. 69750-1-1/11 Here, Oldham asserts that, although Dr. Tutty's evaluation recommended that she receive parenting education, the Department failed to offer her that service. The record does not support this contention, considering Oldham's own testimony that, at the time of the hearing, she had been taking parenting classes at Sound Mental Health. Termination was appropriate. 

### "[A] parent's unwillingness or inability to make use of the services provided
excuses the State from offering extra services that might have been helpful." 

### P. P., 58 Wn. App. at 26 (quoting In re Dependency ofRamquist. 52 Wn.App. 854, 861, 765 P.2d 30 (1988)). Moreover, even where the Department 

### "inexcusablyfails to offer a service to a willing parent.. . termination is 

### appropriate ifthe servicewould not have remedied the parent's deficiencies in the foreseeable future, which depends on the age of the child." TJR., 108Wn. 

### App at 164. Finally, "[w]here therecord establishes that theoffer ofservices would be futile, the trial court can make a finding that the Department has offered allreasonable services." M.R.H., 145 Wn. App. at 25 (citing In re Welfare of 

### Ferguson, 32Wn. App. 865, 869-70, 650 P.2d 1118 (1982), rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983)). 

### Here, the evidence demonstrated that the parenting education service would not have remedied Oldham's parental deficiencyin the foreseeable future. 

### The record unequivocally illustrates that the parentaldeficiency at issue was Oldham's mental illness. Oldham's history of hospitalizations and mental health 

### diagnoses supported this determination. Furthermore, Dr. Tutty's evaluation and testimony indicated thatschizoaffective disorder adversely affects one'sability to
-11

-No. 69750-1-1/12 

### parent, as it impairs one'sjudgment, insight, ability to problem solve, and other 

### functioning. His evaluation also stated that Oldham's disorderlikely played a role in her abusive and neglectful behavior toward F.K.O. Finally, Dr. Tutty's 

### evaluation reported that, because of her psychiatric pathology, F.K.O.'swelfare would be at risk ifhe were to be placed with Oldham. The evidence adduced at trial established that Oldham's mental health 

### condition demanded several years ofongoing support and treatment. For 

### example, Dr. Tutty's testimony andevaluation recommended thatOldham receive extensive psychiatric treatment. This included individual counseling, 

### routine psychiatric visits, and case managementforthe next 12months. 

### Moreover, Earwood testified thatreunification would require thatOldham remain in treatment and attain mental stability for at least one year. Notably, according 

### to Dr. Tutty's recommendations, even before visitswith F.K.O. were to be deemed safe, Oldham would need to be stablefor at least sixmonths. 

### The evidence presented at thehearing also indicated that, given the recommended timeframe needed for Oldham to improve hermental health 

### condition, she would not succeedin correcting herdeficiencies within the near 

### future, as determined by F.K.O.'s age and needs. Dr. Tutty's evaluation concluded that, because ofOldham's psychiatric pathology andparenting 

## deficits, "[i]tis highly unlikely, inthis examiner's opinion, thatshewould be able to remediate herdeficits within the time frameallowed the Departmentfor establishing permanency."

12No. 69750-1-1/13
Atthe time of the termination hearing, F.K.O. was over seven years old. According to the CASA, itwas imperative that he obtain stability and permanency within two months following the hearing. Furthermore, the trial court made an uncontested finding that the "nearfuture" for F.K.O. was 30 to 60 days. No witness testified that Oldham's parental deficiencies could be remedied in 30 to 60 days. Finally, although the parenting services might have aided Oldham in learning to better parent F.K.O., these services were not directly aimed at treating her mental health condition. Accordingly, clear and convincing evidence supported the trial court's finding that the Department met its obligations with regard to offering or providing all necessary, reasonably available services, capable of correcting Oldham's parental deficiencies. Nevertheless, Oldham assigns error to the trial court's finding that "[Oldham] has not successfully engaged in services nor has she made substantial progress toward correcting her parental deficiency of mental illnesses, which affects her ability to parent." This determination was similarly supported by substantial evidence inthe record. Despite the Department's efforts, Oldham did not express a willingness to 

### complywith court-ordered services until well over a year after the March2011 disposition order was entered. Moreover, Dr. Tutty's evaluation, which confirmed her diagnosis ofschizoaffective disorder and called for extensive treatment, was completed approximately one month before the termination hearing.

13No. 69750-1-1/14 Furthermore, Dr. Tutty's testimony made clear that Oldham's disorder impaired her ability to parent F.K.O. Accordingly, substantial evidence demonstrated that, at the time ofthe termination hearing, Oldham had not made significant progress in improving her mental illness. Nor could she do so in the requisite near future as determined by FKO's imminent need for permanent placement. Therefore, substantial evidence supported the trial court's findings.
Ill Oldham next contends that the trial court erroneously found that she was 

### presently unfit to parent F.K.O. Afinding of a parent's current unfitness is 

### required byconstitutional due process concerns. A.B., 168Wn.2d at 920. 

### Contrary to Oldham'scontention, ample evidence in the record substantiated the trial court's finding. 

### As discussed previously, Oldham's parental deficiency was related to her mental illness, for which, at the time of the termination hearing, she had only 

### recently soughttreatment. In hisevaluation, Dr. Tutty stated that "Oldham 

### remains at high risk with respect to thewelfare of[F.K.O.] by virtue of her 

### psychiatric pathology and aforementioned parenting deficits." As a result, he recommended against Oldham's reunification with F.K.O. at the time of the evaluation or inthe foreseeable future. Earwood agreed that Oldham posed a risk to F.K.O. such that even unsupervised visits might place F.K.O. indanger. 

### Moreover, Oldham's testimony demonstrated that she did notfully grasp 

### the severity of herillness. She appeared to be dismissive ofthe fact that
-14-No. 69750-1-1/15 remedial steps were necessary before F.K.O. could return to her care. For 

### example, when asked about her diagnosis, she replied, "I don't even knowwhat I have." She added that "[a]ll Iknow is that Itake medicine and Idon't have symptoms of an illness. It's a light disorder." 

### The CASA expressed her beliefthat Oldhamwas neither capable of 

### providing adequate carefor F.K.O. nor able to meet hisdevelopmental, physical, and emotional needs. She stated that Oldham did not comprehend how F.K.O.'s 

### life had been affected by herillness orhow herabsence had impacted him. The CASA also expressed herbeliefthatOldham was unable to provide a stable environment forF.K.O. She explained that, in addition to his need for 

### permanency and adecision, F.K.O. needed clearchoices, specific expectations, and certainty in his daily life. Shedid not believe that Oldham could meetthese
needs.

### Substantial evidence established that Oldham was notfit to parent F.K.O. 

### at thetime ofthetermination hearing. Accordingly, thetrial courtdid noterrby

so finding.
Affirmed.

We concur:

15