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2013 JUL 29 AH 10: 28

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the 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UNPUBLISHED OPINION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 of Social 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 of evidence was admitted at trial in order to support each of these

findings. Accordingly, we affirm the trial court's order.
No. 69750-1-1/2

I

On the evening of November 1, 2010, a police sergeant from the

Snoqualmie Police Department found F.K.O., who was five years old atthe time,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 subsequently discovered Oldham standing alone

outside ofthe bowling alley. When he approached her, she informed him that

she was "waiting for a train to come by." However, no train trackswere located

in the vicinity and no train was due. The sergeant observed that Oldham's

speech was disconnected and that she verbally rambled at length. As a result,

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 an evaluation. That night, F.K.O. was

placed in protective custody.

The following day, Oldham was admitted to a mental health facility for

furtherstabilization and treatment. There, she was diagnosed with psychotic

disorder. However, upon discharge from the facility on November 5, 2010,

Oldham refused to receive any referrals to treatment providers, assistance with

mental health treatment, or medication.

1F.K.O. was born onApril 22, 2005. The whereabouts ofhis alleged father—whose

parental rights wereterminated in July 2012—remain unknown.

2Since F.K.O.'s birth, Child Protective Services had received numerous referrals,

including four from the Snoqualmie Police Department.

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No. 69750-1-1/3

On March 22, 2011, the trial court entered an order of dependency 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

of the services she was required to complete. Oldham acknowledged that her

involvement in these 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 of April 23, 2012, the trial court

once again found that Oldham had failed to avail herself of any court-ordered

services. The Department thereafter filed 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 in which she was diagnosed with psychosis, not otherwise

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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 with schizoaffective disorder. At this

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

wished to participate in court-ordered services. This was the first time that

Oldham demonstrated 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 care until [Oldham]

has participated in mental health treatment for a longer period of time."

Following a permanency planning hearing on October 8, 2012, the trial

court found that Oldham had been "compliant with what has been ordered but is

awaiting further service recommendations." That same day, the court entered an

order permitting the resumption ofsupervised visitations.

On October 5, 2012, Dr. Steve Tutty met with Oldham to conduct a

"Psychological Evaluation and Comprehensive Parenting Evaluation." In addition

to interviewing Oldham for purposes of the psychological evaluation, Dr. Tutty

observed Oldham interactwith F.K.O. At this 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

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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 of the 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 removed from Oldham's care for

approximately two years. He had been placed with foster parents and had grown

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 for approximately five months.

Moreover, she testified that she had been also receiving medication

management and had been taking parenting classes at Sound Mental Health.

Nevertheless, when asked if anything was necessary for her to do or complete in

the event that F.K.O. were permitted to return to her care, Oldham replied, "[n]o."

In histestimony, Dr. Tutty described schizoaffective disorderas a chronic,

lifelong condition involving the vacillation between depressive and psychotic

states. He testified that the disorder tends to impair judgment, insight, and

social, academic, and vocational functioning. According to Dr. Tutty, the

prognosis is poor for those diagnosed with schizoaffective disorder. The

condition can require years of support and treatment, including long-term

counseling. Moreover, Dr. Tutty explained that schizoaffective disorder can

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 proper pharmacotherapy combination to stabilize her condition. Oldham

would also require extensive mental health counseling and parenting training. In

addition, in order for visits to ensue, Dr. Tutty recommended thatOldham's

condition be stabilized for a period of sixmonths, and that she display adequate

parenting skills.

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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 of the

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 "near future"

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, the court determined that there was little likelihood

that conditions would be remedied such that F.K.O. could return to Oldham in the

near future. This was so because, throughout the dependency, Oldham had

been unwilling to participate in and successfully complete services offered to

correct her parental deficiencies. The court additionally found that, after overtwo

years ofdependency, Oldham was just beginning 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 that Oldham could not safely parent him in this time frame.

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No. 69750-1-1/8

The trial court also made the following 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 of correcting 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 of evidence was

introduced in support of each of these findings, her claim fails.

3Oldham assigns error to the following findings offact entered by the trial 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

ofthese assignments oferror with citation to the record and legal authority. Wedo not 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 on appeal. Fuller v. Emp't Sec. Dep't, 52Wn. App. 603, 605, 762 P.2d 367 (1988). Thus,

on appeal, we treatonly the following findings offact as in dispute: 2.11, 2.13, and 2.22.

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No. 69750-1-1/9

"Parents have a fundamental right to the care and custody of their

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 of A.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 of K.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

or provided and all necessary services, reasonably available, capable of

4The six termination factors are:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW

13.34.130;

(c) That the child has been removed or will, at the time of the hearing,

have been removed from the custody of the parent for a period of at 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 or provided and all necessary services,

reasonably available, capable of correcting the parental deficiencieswithin the

foreseeable future have been expressly and understandably offered or provided;

(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 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).

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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 of K.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 of law. In re

Dependency of P.P., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial

evidence' is evidence in sufficient quantity to persuade a fair-minded, rational

person ofthe truth ofthe declared premise." In reWelfare ofT.B., 150Wn. App.

599, 607, 209 P.3d 497 (2009). The determination ofwhether the findings offact

are supported by substantial evidence "must be made in light ofthe degree of

proof required." PJL 58Wn. App. at 25. Where, as here, the proof required is

clear and convincing, "thequestion on appeal is whether there issubstantial

evidence to support the findings in light ofthe highly probable test." PJ1, 58Wn.

App. at 25.

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No. 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 of Ramquist. 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 if the service would not have remedied the parent's deficiencies in

the foreseeable future, which depends on the age of the child." TJR., 108 Wn.

App at 164. Finally, "[w]here the record establishes that the offer ofservices

would be futile, the trial court can make a finding that the Department has offered

all reasonable services." M.R.H., 145 Wn. App. at 25 (citing In re Welfare of

Ferguson, 32 Wn. 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 deficiency in the foreseeable future.

The record unequivocally illustrates that the parental deficiency 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's ability to

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parent, as it impairs one's judgment, insight, ability to problem solve, and other

functioning. His evaluation also stated that Oldham's disorder likely 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 if he were to be placed with Oldham.

The evidence adduced at trial established that Oldham's mental health

condition demanded several years of ongoing support and treatment. For

example, Dr. Tutty's testimony and evaluation recommended that Oldham

receive extensive psychiatric treatment. This included individual counseling,

routine psychiatric visits, and case management for the next 12 months.

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 visits with F.K.O. were to be

deemed safe, Oldham would need to be stable for at least six months.

The evidence presented at the hearing also indicated that, given the

recommended timeframe needed for Oldham to improve her mental health

condition, she would not succeed in correcting her deficiencies 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 and parenting

deficits, "[i]t 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."

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No. 69750-1-1/13

At the time of the termination hearing, F.K.O. was over seven years old.

According to the CASA, it was imperative that he obtain stability and permanency

within two months following the hearing. Furthermore, the trial court made an

uncontested finding that the "near future" 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 in the record.

Despite the Department's efforts, Oldham did not express a willingness to

comply with court-ordered services until well over a year after the March 2011

disposition order was entered. Moreover, Dr. Tutty's evaluation, which confirmed

her diagnosis of schizoaffective disorder and called for extensive treatment, was

completed approximately one month before the termination hearing.

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No. 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 of the

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 by constitutional due process concerns. A.B., 168 Wn.2d at 920.

Contrary to Oldham's contention, 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 sought treatment. In his evaluation, Dr. Tutty stated 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." As a result, he

recommended against Oldham's reunification with F.K.O. at the time of the

evaluation or in the foreseeable future. Earwood agreed that Oldham posed a

risk to F.K.O. such that even unsupervised visits might place F.K.O. in danger.

Moreover, Oldham's testimony demonstrated that she did not fully grasp

the severity of her illness. She appeared to be dismissive ofthe fact that

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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 I know is that Itake medicine and I don't have

symptoms of an illness. It's a light disorder."

The CASA expressed her beliefthat Oldhamwas neither capable of

providing adequate care for F.K.O. nor able to meet his developmental, physical,

and emotional needs. She stated that Oldham did not comprehend how F.K.O.'s

life had been affected by her illness or how her absence had impacted him. The

CASA also expressed her belief that Oldham was unable to provide a stable

environment for F.K.O. She explained that, in addition to his need for

permanency and a decision, F.K.O. needed clear choices, specific expectations,

and certainty in his daily life. She did not believe that Oldham could meet these

needs.

Substantial evidence established that Oldham was not fit to parent F.K.O.

at the time ofthe termination hearing. Accordingly, the trial court did noterr by

so finding.

Affirmed.

We concur:

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