### FILED OCTOBER29, 2015 In the Office ofthe Clerk ofCourt W A StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE ) IntheMatter ofthe Welfare of ) No. 32770-I-III ) (consolidated with ) No. 32774-4-III, R.H., M.H., Z.H., K.H., and E.H. ) No. 32771-0-III, ) No. 32772-8-III, ) No. 32773-6-III) ) ) UNPUBLISHED OPINION SIDDOWAY, C.J. S.H. appeals the termination ofherparental rights withrespect to five ofherchildren, contending that (I)the Department ofSocial andHealth Services (Department) did notprovideherwith all services necessary to correctherparental deficiencies, (2) the State failed toprovethat herparental deficiencies could not be remedied in the nearfuture, and (3) thetrial courtdidnot find that she was currentlyunfit toparent. Becausethe evidencewas sufficientto support the trial court's findings and it implicitly found that shewas currentlyunfittoparent, we affirm.No. 32770·I·II1 (cons. 

### wi Nos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-111) 

### In the Matter of the Welfare ofR.H
FACTS AND PROCEDURAL BACKGROUND S.H. is the biological mother, and A.H., the biological father, often children. The oldest child was removed from the parents and adopted in 1993. The remaining nine childrenremained in the parents' custody until November 2012. Between 1996 and 2012, Child Protective Services received some 36 referrals concerningthis family, and the parents bothhad 27 "founded" findings againstthem. The Department's dependency petition filed in November 2012 alleged that "[t]he parents [had] demonstrated a longstanding and ongoing negligence and disregard for the health and safety oftheir children, which placesthe children at significant risk ofharm." PlaintiffsEx. 2 (P2) at 3. Itincluded an allegation that: Between May 2012 and August 2012 the
... children were caught a total ofnineteen times either stealing or destroying property from the local Fred Meyer
.... A consistenttheme in the shopliftingby the children [has] beenhunger and they were seeking out food to eat. Neither oftheirparents were home to either give them money to purchase food or to go and buy food for them. 

### Id. Thepetition summarized police reports as documenting an occasion in August 2012 when law enforcement returned one ofthe children to the family home and "itappeared thatthere was no adultpresent atthehome toprovide supervision. The house was almost bare with no food available. The inside ofthe home was filthy." P2 at 4. Itrecounted law enforcement's observation in a July 30, 2012 police reportthat "[t]here were bad

2No. 32770-1-III (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter afthe Welfare afR.H living conditions, mattresses onthe floor with no sheets or blankets and no food," 

### id., and
onMarch 27,2012, that law enforcementresponded to the family residence. The parents were out at a local night club and were not presentto supervise their children
.... When law enforcement arrived at the home they found no electricity and no food.
. . . The home was completelytrashed with feces on the floor, possessions scattered throughout the home with an overwhelming odorof urine, and rotten food was present. P2 at 6-7. Atthe time ofa shelter care hearing in November2012, S.H. and A.H.'s nine children ranged in age from 4 to 15. It was determined that all would be placed in shelter
care butthe possibility ofmoving the childrentothe maternal grandfather's care would be investigated. Eventually, the four older children entered into a guardianship with the maternal grandfatherthat was later dismissed. This appeal concerns the termination proceeding eventually commenced as tothe five youngest children. The court entered an agreed order ofdependency in January 2013. The children remained in foster care. S.H. participated in some services for the first two months ofthe dependency but failed toparticipate for the following four months. She contactedher therapist in January 2014, asked toresume treatment, andparticipated for overtwo months before disappearing atthe end ofSeptember 2013. TheDepartment filed a petition for termination ofparental rights on October 1, 2013, and trial was held in May 2014. A.H. failed to appear in person orby counsel and
3No. 32770-1-111 (cons. 

### wi Nos. 32774-4-111, 32771-0-111, 32772-8-111, 32773-6-111) In the Matter of the Welfare ofR.H.

an order ofdefault was entered against him. I S.H. also failed to attend the termination trial but a lawyer appeared to defend on her behalf. Atthe conclusion oftrial the court concludedthat the Departmenthad proved the required statutory elements by clear, cogent, and convincing evidence and thattermination ofthe parent child relationship was in the best interests ofthe children. It entered an orderterminating S.H.'sparental rights. She appeals. ANALYSIS "The fundamental liberty interest ofnatural parents in the care, custody, and management oftheir child does not evaporate simply because theyhave not been model parents orhave lost temporary custody oftheir child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Becauseparents have a fundamental liberty interest inthe custody and care oftheir children, the State may terminateparental rights'" only for the mostpowerful [of] reasons.'" In re S.J., 162 Wn. App. 873,880,256 P.3d470 (2011) (alteration in original) (quotingIn re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). Washington's termination ofparental rights statute responds to this constitutional command byproviding a two-step process before a court may terminate parental rights.

I Around the time ofthe first review hearing, allegations that A.H. sexually abused one ofhis children surfaced and a warrantwas issued for his arrest. A.H. could not be located, and he stopped participating in the dependency. 4No. 32770-1-111 (cons. wiNos. 32774-4-111, 32771-0-111, 32772-8-111,32773-6-111) In the Matter of the Welfare of R.H.
"The first step focuses on the adequacy ofthe parents and must be proved by clear, cogent, and convincing evidence," while "'[t]he second step focuses on the child's best interests and need be proved by only apreponderance ofthe evidence." In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010) (footnotes omitted); RCW 13.34.l90(l)(b). Only ifthe first step is satisfied may the court reach the second. Id. The first step-the demonstration ofparental inadequacy-requiredthe trial court in this case to find that the State had proved each ofsix statutory elements, some procedural and some substantive, and that an orderterminating parental rights was in the best interests ofthe child. RCW 13.34. 190(1)(a)(i), (b); .180(1). Due process further required that it find that S.H. was currently unfit to parent the children. A.B., 168 Wn.2d at 920.S.H. challenges the trial court's findings ofthe following substantive elements, required byRCW 13.34.180: (d) That the 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; and (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.



### 5No. 32770-I-III (cons. wINos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare ofR.H
She also argues that the trial court did not find, explicitly or implicitly, that she was an unfitparent. On review, "[t]he court's factual findings must be upheld ifsupported by substantial evidence from which a rational trier offact could find the necessary facts by clear, cogent, and convincing evidence." In reDependencyof K.S

## c., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). Evidence is substantial ifitis sufficient to persuade a fairminded person ofthe truth ofthe fact at issue. In re SJ., 162 Wn. App. at 881. "Clear, cogent and convincing evidence exists when the evidence shows the ultimate fact at issue to be highly probable." K.Sc., 137 Wn.2d at 925. "The trialjudge has the advantage of having the witnesses before him orher, and deference to the findings is ofparticular importance in deprivation proceedings." Id. We review, first, whether sufficientevidence supports the trial court's finding that all necessary services were expressly and understandably offered; second, whether sufficient evidence supports the finding that there is little likelihood that conditions will be remedied in the near future; and third, whether the court implicitly made the finding, requiredby dueprocess, that S.H. was currently unfit to parent. 1. Necessary services The State's burden ofproving it offered all necessary services capable of correcting the parental deficiencies within the foreseeable future requires proofthat it

6No. 32770-1-111 (cons. 

### wi Nos. 32774-4-111, 32771-0-111, 32772-8-111, 32773-6-111) 

### In the Matter of the Welfare of R.N
offered services "tailoredto each individual's needs." 

### In re Dependency ofTR., 108 Wn. App. 149, 161,29 P.3d 1275 (2001). At the shelter care hearing on November 15, 2012, the court's orderprovided for the following required services: The Department will make referrals for and the parents will participate in the below examinations, evaluations, or immediate services. Failure to comply with this order may result in contemptproceedings.
! Mother Father Service



### .....**~** Random UAIBA testing. Test until no THe and then upon reasonable suspicion
.**~** .Psychological evaluation by [Dr. Sean] Smitham or ! otherprovider approved bytheparties orordered by

the court and follow recommendations[] 

### wiDV prevention



### . '" 

## ..**~** Hands-on parent training by ShaunaHebner or otherprovider approved bythe parties or ordered by the court and follow recommendations. PlaintiffsEx. 3 (P3) at 7-8. The State made the appropriate referrals and S.H. participated in the psychological evaluation with Dr. Smitham. Dr. Smitham's recommendations included, among other things, nutritional stabilization and apsychiatric consult should nutritional stabilization prove ineffective, individual counseling, family counseling, a chemical dependency evaluation, a bonding assessment, and a domestic violence (DV) victim evaluation or 7No. 32770-1-111 (cons. 

### wiNos. 32774-4-111, 32771-0-111, 32772-8-III, 32773-6-III) In the Matter of the Welfare of R.N
services. The Statereferred S.H. to Linda Wirtz for family therapy to include hands-on parenttraining. S.H. argues that the State did not provide her with apsychiatric evaluation, domestic violence evaluation ortreatment, chemical dependency assessment ortreatment,
or a bonding assessment. Br. ofAppellant at 21-22. Because she was not offered all the services recommended by Dr. Smitham, she argues that the State failed to provethat she
was offered orprovided with the necessary services capable ofcorrectingherparental deficiencies. The State responds that S.H. "did not consistently participate in any ofthe services the Department offeredher and [ ] would nothave benefitted from still more services being offered." Br. ofResp't at 12. Regrettably, some parents facing the prospect oftennination oftheir parental rights are unable or otherwise fail to make use ofservices provided. Itis well settledthat the statutory requirement to offer orprovide corrective services does not contemplate an entirely one-way process, and "aparent'sunwillingness or inability to make use ofthe servicesprovided excuses the state from offering extra services that might have been helpfuL" In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988) (citingIn re Welfare of Ferguson, 41 Wn. App. 1, 6, 701 P.2d 513 (1985)). "Moreover, a parent's unwillingness or inability to make use ofthe services provided excuses the state

8No. 32770-1-III (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter of the Welfare of R.H
from offering extra services that might have been helpfuL" 

### Ramquist, 52 Wn. App. at 861 (citing 

### Ferguson, 41 Wn. App. at 6). Even where the Department inexplicably fails to offer services to a parent, termination will still be deemed appropriate ifthe services would not have remedied the parent's deficiencies in the foreseeable future. 

### In re Welfare of MR.H, 145 Wn. App. 10,25, 188 P.3d 510 (2008) (citing

### In re Dependency ofT.R., 108 Wn. App. 149, 164,29 P.3d 1275 (2001)). "Wherethe record establishes that the offer ofservices would be futile, the trial court can make a finding that the Department has offered all reasonable services." 

### Id. (citing

### In re Welfare of Ferguson, 32 Wn. App. 865, 869-70,650 P.2d 1118 (1982), 

### rev'don othergrounds, 98 Wn.2d 589, 656 P.2d 503 (1983)). We consider, then, whetherthe State was required but failed to offer apsychiatric evaluation, domestic violence evaluation ortreatment, chemical dependency assessment
ortreatment, and bonding assessment and, ifit did, whether its obligation to offer the services was excused or the offer would have been futile. 

### Psychiatric evaluation. In notes from a December 3,2012 sessionwith S.H., Dr. Smitham recommended adjustments to S.H.'s diet that might help S.H. "better manag[e] [her] energy and moods." PlaintiffsEx. 15 (PI5), (Dec. 3, 2012) at 7. He concluded that ideally, S.H. should follow the dietary recommendations for 6 to 8 weeks before psychiatric medication was considered. He added that "thepatient may benefit from a psychiatric consult ifthe above recommendations do not result in noticeable change after 9No. 32770-1-111 (cons. 

### wiNos. 32774-4-111, 32771-0-111, 32772-8-111, 32773-6-111) In the Matter of the Welfare of R.H.
6-8 weeks offollowing the recommendations consistently." 

### Id. In context, it is clearthat the purpose ofapsychiatric consult would be for the prescription ofmedication to address any problems with energy and mood managementthatdietary changes failed to resolve. In a note dated February 1,2013, based on evaluative sessions in December and January, Dr. Smithamrecommended a "[p]sychiatric consult (ifnutritional stabilization isn'tpossible)." P15, (Feb. 1,2013)at 2. After completing a psychological evaluation ofS.H. based on the December and January sessions, Dr. Smitham first saw S.H. for purposes ofindividual counseling on February 18,2013. At trial, Dr. Smitham testifiedthat at the time ofthe first individual therapy counseling session, S.H. was in the "precontemplative stage ofchange," meaning she was
unaware ofthe trauma and significance ofthe problem in terms ofhow she may have contributed to it. There is a lot ofblaming, a lot ofstatements that it was otherpeople's fault, not a lot ofself-awareness or acknowledging her role in that. So she didn't at thatpoint seemto be interested in making any sort ofchange. Report ofProceedings (RP) at 53-54. Dr. Smithamtestified that S.H. "no-showed" for the remaining three sessions scheduled for February. RP at 54. She also failed to appear for the first oftwo sessions scheduled for March 2013 but did attend and participate in the second.

10No. 32770-1-III (cons. wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare of R.H
S.H. then "dropped out" oftherapy until, in late July, she contacted Dr. Smitham to say that she would like to resume therapy. RP at 55. Dr. Smitham testified that he saw
a lot ofprogress during S.H.'s sporadic attendance ofsessions in July, August, and September.2 But he also testified that S.H. again stopped attending therapy after September and that he did not hear from her in October, November, orDecember. In January 2014, S.H. showed up at Dr. Smitham's office without advance notice and told him that she would again like to resume therapy. Although the State renewed its referral for S.H. to see him, S.H. cancelledthe appointment scheduled for February. Dr. Smitham had no other appointments with S.H. While S.H. is correctthat the State did not refer her for apsychiatric consult, Dr. Smitham's recommendation ofsuch a consultwas for the possible prescription of medication, on the condition that she first attempt to manage her energy and mood through nutritional stabilization. There is no indication in the record that she ever followed the nutritional recommendations, let alone reported to Dr. Smitham that she had complied with the recommendations and they ha4 failed to resolve complaints about her energy and mood. While Dr. Smitham's originally contemplated treatment steps failed to occur, the trial court could reasonably infer that it was because S.H. never complied with

2 S.H. attended two offour sessions scheduled in August and two offour sessions scheduled in September. 11No. 32770-I-II1 (cons. 

### wiNos. 32774-4-III, 3277I-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare of R.H.
the required first step ofattempting to manage her energy and mood through nutritional stabilization. The evidence does not support S.H.'s argument that hertreatment everreached the point at which apsychiatric consult was arguably necessary. Domestic violence victim counseling. S.H. argues that the State failed to provide herwith a domestic violence evaluation or services. The court's orderrequired the Department to make a referral for a "psychological evaluation by [Dr. Sean] Smitham
... 

### wiDVprevention." P3 at 7. The State did refer S.H. to Dr. Smitham for evaluation. During the few therapy sessions that S.H. attended, Dr. Smitham began to address the lingering effects ofdomestic violence in S.H.'s life. When she resumed sporadic treatment for a couple ofmonths in July 2013, Dr. Smitham'snotes indicate that the topics addressed included her attachment history and relationship history. Dr. Smitham's initial recommendations ofservices (labeled "tentative") included "DV victim evaluation and!0r services." PI5 (Feb. 1,2013)at 2. But apart from Dr. Smitham's own individual therapy sessions with S.H., no DV evaluation was ever performed nor were DV services provided. This is a case in which the trial court could reasonably conclude that any duty to offer DV services beyond those being providedby Dr. Smitham was excused, however. When S.H. demonstrated unwillingness to meaningfully pursue the individual therapy made available by the Department and that

12No. 32770-I-III (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare of R.H
included a DV component, the Departmentwas notrequired to offer additional DV services. Chemicaldependency. Duringher evaluation by Dr. Smitham, S.H. revealed that she smoked marijuana every day, and had done so for 20 years or more. His notes reflect her explanation that "I feel out ofmyselfwhen I'mnot smoking, 1don't feel like myself at all," and that "she is highly anxious without it." 

### PIS (Dec. 3, 2012) at 2 and (Feb. 1, 2013) at 1. Atthe termination trial, Dr. Smitham testified that S.H.'s "onetool for managing agitation by her own self-report was smoking marijuana. Sowe needed to give her some othertools." RP at 60. He characterizedher "long-standingpattern of substance abuse as her emotional kind ofcoping skill." RP at 69. While one ofMr. Smitham'srecommendations was that S.H. receive a chemical dependency evaluation, his notes reflect his ownbeliefthat she had an active chemical dependency. 

### PIS (Feb. 2, 2013) at 1-2 and (Feb. 18,2013)at 1. Her almosttotal noncompliance with the court ordered requirement that sheparticipate in random UAs
was further evidence ofdependency: between November 2012 and the termination trial in May 2014, S.H. only participated in four UAs, all ofwhich tested positive for THe. She
was recognized as out ofcompliance with the court's orderthat she provide random UAs at every dependency review hearing.

13No. 32770-I-III (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare of R.H
There is no evidence in the record that the State referred S.H. for a chemical dependency assessment3 but, as the State points out, "[h]er long history ofmarijuana use
was already known to the Department." Hr. ofResp't at 13. S.H. argues on appeal that treatment ofher chemical dependency issues would have "furthered [her] progress in other services to make it possible to remedy her deficiencies and reunite with her children,"pointing outthatthe order from the dependency review hearing in July 2013 required that she complete a "CD Treatment/Assessment." Hr. ofAppellant at 26; PlaintiffsEx. 6 (P6) at 4. The reference to "treatment" in the order appears tohavebeen in error; the service is listed as one that had been "previously ordered" but "not yet been successfully completed," yet no prior orderhad required chemical dependency treatment. Dr. Smitham's notes and testimony reflect his opinion that S.H.'s marijuana use was a "coping" mechanism or "tool" for dealing with her anxiety. Since the individual therapy he was providing was with aview to the underlying source ofher anxiety and providing her with othertools, there is nothing in the record to suggest that some other sort ofchemical dependency treatment
was necessary.

3 In opening argument the State argued that S.H. "hasrefused to complete a chemical dependency assessment, although that has been recommended by the Department, particularly given her lack offollow-through with the urinalysis testing, but she has declined to participate in that through the various court orders and through her attorney." RP at 7. We find no evidence in the record to support that claim. 14No. 32770-1-II1 (cons. 

### wi Nos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter o/the Welfare o/R.H
S.H.'s almost total noncompliance with the court ordered UAs and her infrequent and sporadicparticipation in individual therapy further demonstrate her unwillingness to make use ofthose services addressed to chemical dependency that had been orderedby the court. Again, "aparent's unwillingness or inability to make use ofthe services provided excuses the State from offering extra services that might have been helpful." 

### Ramquist, 52 Wn. App. at 861. 

### Bondingandattachment evaluation. S.H. contends that the State's failure torefer her for a bonding and attachment assessment preventedher from receiving additional services and information that "wouldhave aided the court in its assessment ofwhether the mother could remedy the relationship withher children in the children's near future." Br. ofAppellant at 27. At the outset ofthe dependency, the court ordered hands-onparenttraining for S.H., as well as family visitation. Afterhis initial psychological evaluation, Dr. Smitham recommended that S.H. receive a parenting assessment and a bonding assessment. The State referred S.H. to Linda Wirtz for family therapy and hands-on parenttraining. One goal Ms. Wirtz had for the family therapy sessions was that "[t]he children [would] demonstrate behaviors ofa secure attachment with theirmother and overcome their anxiety about their mother's availability and events that led to theirplacement." PlaintiffsEx. 16 (PI6) (February 1,2013) at 2.

15No. 32770-I-III (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter of the Welfare of R.H.
Itwas reported at a review hearing in March 2013 that S.H. had participated in the hands-on parenttraining thattook place during the family visits. Butby the end of March, S.H. was frequently missing visits and Ms. Wirtz discharged her becausethe missed visits were difficult on the children. S.H. attempted to resume the hands-on training and visits in July 2013 with limited success. Her last attendance at family therapy was in September 2013. S.H.'s demonstrated inability orunwillingness to consistently attend the visits being observed by the family therapist providing hands-on parenting training excused the State from offering a bonding and attachment assessment. Bonding and attachment were clear objectives ofthe family therapy and individual counseling opportunities that S.H. treated so dismissively. The State was notrequired to offer an additional service when S.H. was continually failing to participate intwo closely related services. 

### II Finding thatdeficiencies cannot be remedied in the foreseeablefuture Ifthe State offers orprovides all necessary services reasonably capable of correctingparental deficiencies within the foreseeable future and the parent does not substantially improve within a year ofthe dependency order, a presumption arises that the State has demonstrated RCW 13.34.180(l)(e)'s requirement thatthere is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. 

### In re Welfare ofTB., 150 Wn. App. 599,608,209P.3d 497 (2009). "Aparent's
16No. 32770-1-II1 (cons. 

### wiNos. 32774-4-111, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter of the Welfare ofR.H 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. "A determination ofwhat constitutes the near future depends
on the age ofthe child and the circumstances ofthe placement." 

### In reDependencyof T.L.G., 126 Wn. App. 181,204, 108 P.3d 156 (2005). The Department social worker assigned to this dependency proceeding expressed her opinion that the near future for S.H.'s five youngest children was "now," and testified: 1think that [S.H.] has been dealing with these deficiencies for many, many years. And we have been at this dependency for 18 months now, and she'smade no measurable progress. 1think it would be well into the future-up until she's-is absolutely able to address her own personal trauma, where she does seem willing or able to do. So 1don't see in the foreseeable future she will be able to makethe progress she needs for her children. RP at 176-77. S.H. implicitly concedes that this testimony would be sufficient ifthe State had offered the necessary services, but challenges the State's (and its witnesses') underlying assumption that those services had been provided. Br. ofAppellant at 30-31 ("[T]he social worker's testimony
...presupposes that the mother was offered all necessary services to combat [her] personal issues.
. .. Without adequate provision ofservices, the social worker's testimony regarding the children's near future does not support the termination order"). We have already held that the State met its burden ofproving that 17No. 32770-1-III (cons. 

### wi Nos. 32774-4-111, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter of the Welfare ofR.H
its obligationto provide necessary services was met or excused. That holding is dispositive ofthis assignment oferror as well. 

### Ill. Current unfitness "[A] parent has a due process right not to have the State terminate his orher relationship with a natural child in the absence ofan express or implied finding thathe or she, at the time oftrial, is currently unfit to parent the child." 

### In re Welfare of A.B., 168 Wn.2d at 918. To meet its burden to prove currentunfitness in a termination proceeding, the State must prove by clear, cogent, and cOllvincing evidencethat the parent's deficiencies pre-yent him orher from providingthe child with "basic nurture, health, or safety." 

### In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014). The trial court in this case made no explicit finding that S.H. was currently unfit to parent her children. "[W]hen an appellate court is faced with a record that omits an explicit finding ofcurrentparental unfitness, the appellate court can imply or infer the omitted finding if-but only if-allthe facts and circumstances in the record
... clearly demonstrate that the omitted finding was actually intended, andthus made, by the trial court." 

### In re Welfare of A.B., 168 Wn.2d at 921. S.H. argues that the trial court's oral ruling does not reflect a beliefon the part of the court that she was currently unfit. She also argues that certain statements by the trial court in announcing its ruling improperly shifted the burden ofproof, requiring her to prove that she was a fit parent. She points to the court's statement-afterobserving that 18No. 32770-l-III (cons. 

### wiNos. 32774-4-III, 3277l-0-III, 32772-8-III, 32773-6-III) In the Matter of the Welfare ofR.H
the final issues in the case included "whether at this point in time the mother is unfit to be
a parentto herchildren"-that: You know, it is hard for me to draw any conclusions. But it is difficult for me when she'snot here. I can'tpenalize her for that in that sense. But, you know, certainly I would expecther, ifshe really wanted to parent these children, to be here to tell me that, absent her being in the hospital somewhere, or injail. And Counsel has indicated that she's not going to tell me where she's at, and that's fine, but absent me having some reason that she is not here, I have to assume that she has the ability to behere. I don'thave any other way to view it. Andhernot beinghere obviously has some impact upon this case. RP at 316-17. Ifthis was the sum total ofthe court's explanation, followed by, "I therefore find her unfit," there might be some merit to S.H.'s argument. Butwhen considered as a whole, the foregoing statements merely conveyed the court's concern that S.H.'s failure to appear and present evidence in her own behalfleft it without any evidence to counter the State's evidence ofher currentunfitness. The court continued: Butmore than that, by far more than that, isjustthe fact that it appears that she has in effect not decided to do the hard work, and has sort ofgiven up, ifyou will, andjustwalked away; incredibly sad as that is. There is obviouslyno way thatI can basedon that find thatshe is a fitparent, given the deficiencies that existed, given the fact that I don't have a record ofthose here. So itwouldbe impossible to make that finding. RP at 316-17 (emphasis added). The court's statements that "[t]here is obviously no way that I can ... find that she is a fit parent" and "itwould be impossible to make that finding" indirectly butexplicitly convey its beliefthat S.H. was currently unfit toparent her children. And thatbeliefwas 19No. 32770-1-II1 (cons. 

### wiNos. 32774-4-III, 32771-0-III, 32772-8-III, 32773-6-III) 

### In the Matter of the Welfare afR.H.
based not on a failure orproofby S.H. but onthe State's evidence ofherhistory offailing totake advantage ofoffered services, indicating that she had "given up" and "justwalked away." RP at 317. Affirmed. A majority ofthepanel has determinedthis opinionwill notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

# dzdhm~t~k- Siddoway, C.J. 

### {J WE CONCUR:

Lawrence-Berrey, J.

20