IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Dependency of:
L.R., a minor child, No. 73763-5-
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STATE OF WASHINGTON, DIVISION ONE -J ^
DEPARTMENT OF SOCIAL AND
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Respondent,
LADONIA RAYFORD, UNPUBLISHED OPINION
Appellant.
FILED: March 7. 2016
Spearman, C.J. — LaDonia Rayford appeals an order terminating her parental
rights to her son, L.R. She contends the Department ofSocial and Health Services
(Department) failed to prove several statutory prerequisites to termination. We affirm.
Pretrial History
LaDonia is the biological mother of a son, L.R., born on March 26, 2010.
In April 2012, Child Protective Services (CPS) received a report of LaDonia walking
some distance ahead of two-year-old L.R. as he walked next to a busy street.
In June 2012, the Department began providing LaDonia with family services,
including services relating to her parenting skills and L.R.'s safety and supervision.
No. 73763-5-1/2
On August 10, 2012, the Department received a CPS referral indicating that L.R.
had arrived at daycare with rotten food in his diaper bag. At LaDonia's residence, CPS
and law enforcement personnel observed medications within L.R.'s reach and saw L.R.
holding one of her insulin syringes. They immediately removed L.R. from the home.
Shortly thereafter, the Department learned that L.R. had significant hearing and
speech disorders that LaDonia had not recognized. The disorders, which resulted in
significant developmental delays, were subsequently corrected with surgeries.
In September 2012, the court entered an agreed order of dependency.1 The
agreed factual bases for dependency included L.R.'s developmental delays and special
needs, LaDonia's neglect regarding L.R.'s safety and nutritional and medical needs, and
concerns about LaDonia's cognitive functioning.2 The dependency order required
LaDonia to engage in mental health counseling, medication management, parent
coaching, and a neuropsychological evaluation.
In April 2013, Dr. Tatayana Shepel completed a neuropsychological evaluation of
LaDonia. Dr. Shepel observed impairment or low functioning in LaDonia's verbal and
visual attention, verbal problem solving, visual perception, fine motor skills, and the
ability to understand and follow verbal instructions. LaDonia showed moderate to severe
impairment on tasks requiring both visual and verbal attention, visual problem solving,
and memory function. Because of these deficits, Dr. Shepel believed LaDonia "may
1A dependency order as to L.R.'s father was entered in February 2013. On July 11, 2014, the
court terminated the father's parental rights.
2 Exhibit (Ex.) 1.
No. 73763-5-1/3
have difficulty understanding and following new instructions and in situations where
there are high demands of her concentration, she may have more problems functioning
and have difficulty thinking things through before doing them." Ex. 20 at 6. She also
could "have difficulties scheduling activities" and "making decisions." ]d_, Dr. Shepel
testified that it is likely she will "need more time to learn new material and will be slower
in gaining new skills." Id. at 7.
LaDonia's responses to a personality assessment suggested she has "significant
thinking and concentration problems, accompanied by prominent hostility, resentment,
and suspiciousness." ]d. She also "may have limited social skills, with particular difficulty
in interpreting the normal nuances of interpersonal behavior that provide the meaning to
personal relationships." Id. at 8. Dr. Shepel concluded that, based on the personality
assessment profile, "Ms. Rayford is not a fit parent for her son; the stress of parenting
further exacerbates Ms. Rayford's personal, cognitive, and mental health deficits." ]d. at
12.
Dr. Shepel diagnosed LaDonia with schizoaffective disorder, learning disorder,
and an inattentive form of attention deficit disorder. She concluded LaDonia suffers from
"chronic mental illness and personality traits" that require ongoing mental health
counseling and psychiatric services. Ex. 20 at 14. Dr. Shepel stated that, "[a]t this time
reunification of [L.R.]... is not recommended given Ms. Rayford's mental and
emotional instability, deficient decision-making and executive function, the severity and
chronicity of impairments in adaptive functioning, and high risk for abuse and neglect."
Id. at 14. Shepel recommended several services, including behavior therapy and a life
No. 73763-5-1/4
skills coach. She emphasized, however, that LaDonia's prognosis for "becoming a safe
and fit parent for [L.R.] is poor." Id. at 13.
In March, 2014, the Department filed a petition to terminate LaDonia's parental
rights. Trial was originally set to begin in August 2014 but was repeatedly continued for
various reasons, including LaDonia's need for time to complete parent coaching
services. Trial commenced in June, 2015.3
Trial Testimony
Mental health counselor Carmela Martin testified that she was LaDonia's
parenting coach from December 2013 through February 2014. Martin testified that
LaDonia made significant improvement during that period. She stated in a report that
LaDonia "has the ability to effectively parent her son." Ex. 24 at 5. But she also
recommended additional coaching and testified that LaDonia was not yet ready for
unsupervised visits.
In an April 24, 2015 report to LaDonia's caseworker, Lisa Sibrava, Martin stated:
[Cognitive delays may or may not negatively affect her ability to parent.
This information can be best provided by a psychologist or psychiatrist
treating Ms. Rayford. In terms of her abilities to recognize threats to her
son's safety, she may still need instruction/intervention as she has
admitted that her own mental and emotional status can sometimes affect
her parenting.4
Martin's "biggest concern" at that time was whether LaDonia could provide for L.R.'s
basic needs, such as clothing, food, housing, electricity, medical care, and educational
3 In its final continuance order, the trial court stated, "unless mother is doing very well in new
service, it is extremely unlikely this case will be continued again." Clerk's Papers (CP) at 167.
4 Ex. 28 at 2.
No. 73763-5-1/5
care. jd. She stated that while LaDonia "demonstrates a willingness to search for stable
employment, housing, and medical care, it remains questionable as to whether or not
she will be able to provide for herself and still maintain the ability to see to it that [L.R.]
will receive all of his necessary services." jd.
Martin provided LaDonia with a second round of parent coaching and life skills
instruction beginning in March 2015. Martin did not know why it took over a year to start
the second referral. She testified that LaDonia completed only nine and a half of the
twelve hours provided in the second referral. Martin believed this was due, in part, to
LaDonia's health and family matters she needed to attend to.
Martin testified that LaDonia has a strong bond with L.R. and made significant
strides in her parenting skills. But Martin still had safety concerns involving LaDonia's
medications being in plain sight on a kitchen island. Also, LaDonia's issues with
depression and anxiety seemed to be worse during the second referral. When asked if
LaDonia was ready to reunify with L.R. in 2015, Martin said she "didn't believe so at the
time." Verbatim Report of Proceedings (VRP) (6/30/15) at 191. Martin did think LaDonia
could parent with accommodations, such as in-home help with life skills and house
management. On cross-examination, Martin conceded that she was not aware of any
program "that comes into somebody's home all day every day for six months and helps
out. . . ."VRP at 210-11.
Lisa Sibrava, LaDonia's caseworker since the spring of 2014, testified that she
knew of an in-home program similar to what Martin envisioned, but that program was
only available for imminent reunifications (i.e., within two weeks). Sibrava knew of no
No. 73763-5-1/6
similar service available to parents who were not within weeks of reunification. She
stated she would not refer a parent for such services if the parent had not yet reached
the level of unsupervised visits.
Sibrava testified that LaDonia had received drug testing, chemical dependency
treatment, mental health counseling, parent coaching, a neuropsychological evaluation,
and dialectical behavioral therapy. Sibrava attempted to obtain services for day-to-day
acts of living through the Division of Developmental Disability Administration. Those
services could have included "everything from assisted living to housing supports to
twice-a-week check-ins [.]" VRP at 246. But the services were available only if there
was ample evidence that LaDonia had suffered developmental delays since her
childhood. Unfortunately, LaDonia "couldn't remember where, what State, who, where
she went to school, what doctor she saw, what medication she took. And without that
evidence, we couldn't move forward." VRP at 246. Sibrava also testified that LaDonia
failed to follow through with referrals for occupational supports and assistance with
medication management. And while her visits with L.R. went well, LaDonia lost several
visitation contracts due to missed visits. Sibrava explained that if a parent misses three
visits without giving 24-hour notice, the contract is cancelled.
Sibrava doubted that LaDonia could care for L.R.'s daily needs, stating in part:
We have a child with special needs and a mom who has pretty
significant limitations. Would [L.R.]'s educational services be
addressed? Because he has exceptional educational needs. Will his
medical issues get addressed safely and quickly? Will she be able to
identify risk? Will she be able to not only manage identifying risk to a
typical five-year-old but to specifically her son who has exceptional
need for supervision and care and medical assistance? Housing has
No. 73763-5-1/7
been an issue. She was able to obtain housing, but then was told
that she was going to lose it. She now has a short period of time
where she has HEN - this is the Housing & Essential Needs
Program -- back in place, but it's temporary, and she has no real. ..
plan of what's going to happen when she loses her housing again
that I'm aware of.
Her lights were recently turned off, her electricity. She
reported to me that her brother was able to pay for that to get it [sic]
back on, but there's still money that's owed. All of the typical things
that you have to do to be able to support a child, she's expressed
having a lot of difficulty doing those things.5
LaDonia told Sibrava "on multiple occasions that she would love it if she could have
[L.R.] return home, but that the current foster parents would still be her support system
and help her to parent despite [Sibrava] explaining to her that that's not. . . really an
option." VRP at 252.
Sibrava testified that there had been no rush to judgment in LaDonia's
termination. She noted that the original trial date had been continued for about a year in
order to give LaDonia "time to continue to try to do all of the services that the psych eval
had recommended, to give her the opportunity to complete everything that she needed
to ... be able to say she's really had the chance." VRP at 242. When asked if six more
months of services would change LaDonia's fitness to parent, Sibrava said:
I think that in this situation there is not a service that's available
that's going to remedy the limitations that this mother has. It's not for
her lack of desire or her lack of effort or her connection with her
child, it's just due to the limitations that are organic, that we can't fix
with a service. VRP at 256.
RP 249-50.
No. 73763-5-1/8
Sibrava testified that L.R. "would be at risk" if returned to LaDonia's care. She
had not seen significant improvement in LaDonia's ability to meet L.R.'s needs:
[S]he's struggling to just get through these services that she has to do
over such a long period of time with different people assisting her... ,
she's not been able to do that, then to add the stress of 24-hour
parenting and all of the things that come along with a child with special
needs, that's really concerning because he's going to have a lot of
appointments, especially starting school. VRP at 268
Sibrava conceded that there had been a six-month gap between the two parent
coaching referrals and explained that the delay was due to difficulty getting funding.
Sibrava testified that L.R. is adoptable and needs permanence and stability. And
because of his hearing, speech, and learning issues, he also needs more than usual
supervision and academic support. Although it was a difficult decision, she believed
that termination was in L.R.'s best interest.
Hope Drummond, a program manager at Alliance of People with Disabilities
(APD), testified that APD provides services, including independent living skills training,
for people with disabilities. Drummond testified that LaDonia had requested in-home
assistance, and that APD would need to refer her request to another provider.
Drummond, however, was unaware of any agency that could provide the daily, in-home
assistance at public expense. While Drummond at one point suggested that APD might
be able to provide the in-home services without a referral, she was unsure whether APD
had "the right qualification, the right certification, and if we need to be certified then we
need to know that " VRP at 332.
8
No. 73763-5-1/9
Drew Duplantis, a health care manager for Downtown Emergency Service Center
(DESC), testified that LaDonia was referred to DESC for a weekly mental health group
in September 2014. LaDonia did not complete the program and stopped attending in
February 2015. Duplantis testified that LaDonia made no progress in her treatment
plan. She failed to appear for appointments with a DESC psychiatrist and a follow up
appointment with an employment specialist. Duplantis testified that there had been four
months of group meetings available since LaDonia stopped attending them.
Philip Rourke, the court appointed special advocate assigned to L.R., testified
that he attended some of LaDonia's visits with L.R. and that she clearly benefitted from
her parenting classes. Like other witnesses who observed the two together, Rourke
testified that LaDonia and L.R. had a strong, affectionate bond. Rourke, however, did
not believe it was in L.R.'s best interest to give LaDonia another six months to
participate in services. He testified that L.R. is bonded with his foster family and has
prospects for adoption. He had not seen as much progress from LaDonia in recent
months and doubted that another six months would make any difference. When asked
about LaDonia's request for another six months to a year of in-home services, Rourke
said that he knew of no such services and that, in any event, the requested services
were mainly assistance with concrete household "tasks that are still [going to be] there
at the end of the [services]." VRP at 136.
Rourke reluctantly recommended termination, stating:
[S]he has, I think, put a lot into trying to improve her parenting skills.
She's a delightful person and she has a great relationship with her son.
And in the current framework, they're doing very well together. I just
No. 73763-5-1/10
have questions about whether it would be possible for that relationship to
continue with the same quality if she were a full-time mom.
[W] have heard about her health problems, which I think are continuing
and significant, that make some days really hard days to get up and be
active. She had some difficulties maintaining her home to the condition
that she'd like it to be. And she has continuing mental health issues that
are only partially addressed.
I'm thinking about in particular the problem with depression that she
mentioned for which she's being medicated but has not pursued other
modes of therapy, and I think pretty clearly continues to suffer from that
problem.
I just think for somebody in her condition right now with her experience
that it is asking a lot to be a full-time parent, to take care of an active
young person and to work through the issues that she has at the same
time. And I think that sometimes it's hard for her - it would be hard for
her to keep her attention on what [L.R.] needs as much as she would
want to.
I think she's in a better position to keep him safe today than she was two
and a half years ago, but I'm still concerned and reflect some of the
concerns that Dr. Shepel stated in her report.
I think it's perhaps as much as anything attention to the detail of
childcare, of knowing where he is and what he's doing at almost any
given point in time, which I think at his age is less necessary than at two,
but it's still necessary.
10
No. 73763-5-1/11
I think I have some concerns about his safety. I have some concerns
about attending to his continuing needs on a regular, ongoing basis. I
have no concerns about her wish to do so, but I'm not yet convinced that
she's ready to have her full time and attention available for [L.R.].
[F]or me the ultimate in this situation is an open adoption, and I believe
that [L.R.] has a really excellent relationship both with his mother and
with his foster parents and that we really should recognize that this child
has three parents right at the moment and that we need to be creative
and come up with a way for that to continue.6
LaDonia testified that she had taken steps, including using a biohazard box, to
see that L.R. did not have access to her insulin syringes. She conceded she had missed
some visits and lost some visitation contracts. She testified, however, that there had
been no more problems since she moved closer to L.R. She also conceded that she
stopped going to mental health counseling but claimed that was due to a lack of
insurance coverage. The court did not find this explanation credible.
LaDonia also testified that she recently started counseling again and was
attempting to get in-home assistance from several sources. She believed she needed
"six months to a year" of in-home services before she would be ready to care for L.R.
full time. VRP at 44. She envisioned the service providing assistance with furniture,
clothes, toys, groceries and laundry.
6 VRP at 125-29.
11
No. 73763-5-1/12
The court granted the petition for termination and entered the following pertinent
findings of fact and conclusions of law:7
2.5 The dispositional order provided for the mother to cooperate with the
establishment of paternity, complete a neuropsychological evaluation and
follow any recommendations, participate in mental health counseling and
medication management and participate in parent coaching.
2.6 All 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 deficiencies
within the foreseeable future have been expressly and understandably
offered or provided.
2.7 The mother has been referred in person and in writing to various
agencies for
mental health counseling and medication management services.
2.8 Although available and offered, the mother has not engaged in
medication
management through Community Psychiatric Clinic or the Downtown
Emergency Service Center (DESC).
2.9 The mother has engaged in some sessions of Dialectical Behavior
Therapy (DBT) at DESC. She stopped attending this treatment on
February 20, 2015 and although DESC has attempted to contact her and
DCFS Social Worker Lisa Sibrava has spoken to her and informed her to
continue, she has not done so.
2.10 The court does not find the mother's testimony that she was
terminated from CPC or DESC because of insurance problems to be
credible.
2.11 DCFS has arranged for and the mother has participated in one on
one Parent Coaching from Carmela Martin. This service has benefitted
the mother who was able to improve her parenting skills significantly. A
second round of parenting coaching, aimed to address her life skills was
started but not completed by the mother. It was started in March of 2015,
7 On appeal, LaDonia challenges findings of fact 2.13, 2.15, 2.16, 2.20, 2.24, 2.27-2.29, 2.31,
2.32 and conclusions of law 3.2 and 3.3.
12
No. 73763-5-1/13
the last day of service was April 23. The mother completed 9.5 hours of
the 15 hours that had been authorized.
2.12 Ms. Martin has indicated that the mother has difficulty managing her
day-to-day life and activities. She further states in terms of long-term
investment in [L.R.]'s emotional development, the mother would need
more intervention in order to continue to understand how to best provide
for [L.R.]. In terms of her abilities to recognize threats to her son's safety,
she still needs instruction / intervention as she has admitted that her own
mental and emotional status can sometimes affect her parenting. For
example, during the second referral, Ms. Martin discussed with the
mother, at least twice, the need to keep medication in a lock-box and not
on the counter. A lock box had been provided to Ms. Martin prior to the
filing of the dependency process by the Family Preservation worker.
Nonetheless, the mother, by the end of the service, had not corrected this
problem.
2.13 Ms. Martin does not believe the mother is able to parent
independently and would not yet recommend unsupervised visits. She
does believe that the mother and [L.R.] have a loving bond.
2.14 The mother believes she needs at least 6 months of working with
either a Family Preservation Service (FPS) specialist or an "in-home"
person who would help her with "cleaning, laundry and staying organized"
before she would be in a position to parent [L.R.] on her own. The mother
believes she would need this person to come daily and spend the day
assisting her.
2.15 There is no evidence that a service of an "in-home" person, such as
that described by the mother is available in this community at public
expense.
2.16 The mother has worked with the Alliance of People with Disabilities
since 2009, but that agency has not assessed her for disabilities nor
visited the mother in her home. To date they have not provided in-home
services. It is unclear to the court whether, in fact, this agency simply
refers clients to appropriate services in the community or provides the
services directly.
2.17 From the initial Department involvement with the mother, social
workers and service providers expressed concerns about the mother's
cognitive functioning and seeming inability to process and retain
information. In order to address this, the mother was referred to Dr.
13
No. 73763-5-1/14
Tatyana Shepel for a neuropsychological evaluation in November 2012.
This evaluation was completed April 20, 2013. Testing results found
significant neuropsychological deficits that might prevent her from
learning, retaining and applying new skills. Dr. Shepel noted that the
mother's test results show similarity to someone with frontal lobe system
dysfunction, meaning she has difficulty with self-monitoring, concept
formation and cognitive flexibility. She struggles with tracking of
information, sequencing steps and responding appropriately to changes in
her environment. The mother's decision making is impaired and she fails to
see the consequences of her choices. Dr. Shepel diagnosed the mother with
schizoaffective disorder based upon her paranoid delusions, transient
auditory hallucinations, hyper vigilance, social isolation and inappropriate
social interactions. In addition, she noted the mother has a learning disorder
and ADHD (per history).
2.18 Dr. Shepel made recommendations for services for the mother to
increase her own safety and stability, including:
• Her level of overall neurocognitive abilities suggests she will need a
supervised living environment.
• Services should be offered in one on one format when possible.
• She has chronic mental illnesses and personality traits that need to
be monitored and addressed in ongoing therapy and psychiatric services.
• Ongoing case management assistance with mental health services,
housing and medical care.
• DBT group therapy to learn methods to control impulsive behavior
and abstain from self-damaging behaviors.
• Random UAs
• Life Skills coach to help with organizational skills, budgeting, task
management, and home chores.
• Domestic violence program to develop safe boundaries.
2.19 Reunification was not recommended by Dr. Shepel based upon "the
chronicity and the severity of Ms. Rayford's overall neurocognitive, mental
health, personal, social, and occupational impairments." Dr. Shepel noted
she is not a fit parent and "the stress of parenting further exacerbates Ms.
Rayford's personal, cognitive and mental health deficits." Dr. Shepel noted
the mother struggles with taking care of her own needs and she most likely
will not be able to take care of some basic needs of her son.
2.20 Although the mother requested a second neuro-psych evaluation, there
is no basis for finding that such service would be necessary or appropriate.
She has not completed the individual counseling, medication management
and DBT services recommended in the first evaluation, so there is no reason
14
No. 73763-5-1/15
to believe a second evaluation would lead to a different result, particularly
given the nature and long-term existence of her issues.
2.21 In late 2013, the mother agreed to engage in urinalysis testing. She was
referred to Sterling Reference Labs. The mother completed this service
successfully. There is no reason to believe the mother has a current
substance abuse issue.
2.22 Throughout the Department's involvement with this family, assigned
social workers have met with and provided the mother with numerous verbal
and written service referrals to providers for mental health assessment and
treatment, domestic violence victim advocacy, drug and alcohol evaluation,
urinalysis testing, parenting classes and housing resources. The mother has
also been provided with transportation assistance including bus tickets and
an Orca card.
2.23 After removal from his mother's care, [L.R.] had several evaluations
for his hearing and speech. The Department arranged for [L.R.] to have
necessary medical procedures including a surgery for ear tube placement
and another to address his ankyloglossia (being tongue tied). Both
conditions greatly interfered with [L.R.]'s speech development. The
mother was unaware of any concerns. He had been fitted with hearing
aids, but recent testing has shown that his hearing has improved to the
near normal levels and he no longer uses the hearing aids. [L.R.]
receives ongoing speech therapy. He remains behind same-age peers;
however, he is rapidly increasing his speech and language skills with
continued services and consistent care at home.
2.24 [L.R.] has been out of the mother's care for over two and a half
years. Although she made some progress during the first part of the
dependency, she has plateaued and made no real progress in over a
year. The mother's chronic and severe cognitive deficits and mental
health concerns make it difficult for her to take care of her own basic
needs. She is unable to protect [L.R.] and keep him safe.
2.25 Although the court recognizes that it takes extraordinary effort for
the mother to attend visits (three buses to get to the visitation and four to
get home), it is of concern to the court that the mother has lost at least
three visitation contracts because of missed visits. Her visits in the past
few months had been much more consistent, however, the contract was
again recently cancelled because of missed visits. Even acknowledging
that the mother has health and family concerns that are challenging, it is
very significant that she could not make visitations with [L.R.] a higher
15
No. 73763-5-1/16
priority. The mother gave inconsistent explanations for her recent
visitation problems.
2.26 DGFS has attempted to tailor offered services to accommodate Ms.
Rayford's specific deficiencies and delays, including the services
contained in the disposition order and those recommended by Dr. Shepel
2.27 There is little likelihood that conditions will be remedied so that the
child can be returned to the mother in the near future.
2.28 Continuation of the parent and child relationship clearly diminishes
the child's prospects for early integration into a stable and permanent
home.
2.29 [L.R.] is both adoptable and has prospects for adoption. He would
be at risk if placed in the mother's care at this time.
2.31 The child's mother is unfit to parent this child.
2.32 Termination of the parent-child relationship between the child and the
mother is in the child's best interest, even recognizing the close bond that
exists between the mother and [L.R.]. [L.R.]'s need for permanency cannot
be achieved without termination, and this need far outweighs consideration
of their existing bond.
III. Conclusions of Law
3.2 Termination of the parent-child relationship between the above-named
minor child and the mother is in the child's best interest.
3.3 The foregoing findings of fact and the allegations of RCW 13.34.180 and
.190 have been proven by clear, cogent and convincing evidence unless
otherwise noted.
LaDonia appeals.
DECISION
Parental rights are a fundamental liberty interest protected by the United States
Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L .Ed. 2d 599
16
No. 73763-5-1/17
(1982). To terminate parental rights, the State must satisfy a two-step test. First, it must
prove the following statutory elements by clear, cogent, and convincing evidence8:
(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 deficiencies within 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 the 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). Ifthe trial court finds that the State has met its burden under RCW
13.34.180, it may terminate parental rights if it also finds by a preponderance of the
evidence that termination is in the "best interests" of the child. RCW 13.38.040(2). On
review, unchallenged findings of fact are considered verities. In re Interest of J.F., 109
Wn. App. 718, 722, 37 P.3d 1227 (2001). Challenged findings will be upheld "[i]f there is
substantial evidence which the lower court could reasonably have found to be clear,
cogent and convincing . . . ." In re the Welfare of Aschauer, 93 Wn.2d 689, 695, 611
P.2d 1245(1980).
8"Clear, cogent and convincing" means highly probable. In re Welfare of M.R.H., 145 Wn.App.
10,24, 188 P.3d 510 (2008).
17
No. 73763-5-1/18
LaDonia contends the Department failed to prove elements (e) and (f) above by
clear, cogent, and convincing evidence. We disagree.
Likelihood That Conditions Will Be Remedied in the Near Future
RCW 13.34.180(1 )(e) requires the Department to prove that "there is little
likelihood that conditions will be remedied so that the child can be returned to the parent
in the near future." LaDonia contends the Department did not satisfy this requirement.
Relying primarily on the testimony of Carmela Martin, LaDonia argues that her parenting
"had improved significantly," that such improvement undermined "the court's adoption of
Dr. Shepel's generally poor prognosis for improvement," and that she "could eventually
parent full-time, provided that certain accommodations were in place." Brief of Appellant
at 16-17. These arguments ignore the rule that this court defers to the trier of fact on
matters involving conflicting testimony, credibility, and the weight or persuasiveness of
the evidence.9 They also ignore important portions of Martin's testimony and the court's
findings.
While Martin did testify, and the court found, that parent coaching improved
LaDonia's parenting skills "significantly,"10 there was evidence that most of the
improvement occurred during the first of two coaching referrals and that her
improvement had plateaued. More importantly, parenting skills were just one of several
deficiencies undermining LaDonia's parental fitness. For example, Martin herself
9 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
10 Finding of fact 2.11. CP at 252-53.
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recognized the importance of LaDonia's cognitive difficulties, noting that they "may or
may not negatively affect her ability to parent" and that "[t]his information can be best
provided by a psychologist or psychiatrist." Ex. at 28. That information was, in fact,
provided by Dr. Shepel and adopted by the court in the unchallenged findings.
As previously noted, Dr. Shepel concluded that LaDonia's "decision making is
impaired," that "she fails to see the consequences of her choices," and that she suffers
from "schizoaffective disorder based upon her paranoid delusions, transient auditory
hallucinations, hyper vigilance, social isolation and inappropriate social interactions." Ex.
at 20. Dr. Shepel further concluded that LaDonia could not parent L.R. given "the
chronicity and the severity of Ms. Rayford's overall neurocognitive, mental health,
personal, social, and occupational impairments." Dr. Shepel noted that LaDonia
"struggles with taking care of her own needs and she most likely will not be able to take
care of some basic needs of her son." CP at 253-54.
In addition, Martin testified that LaDonia's issues with depression and anxiety
seemed to worsen during the second referral for parent coaching. And despite noting
LaDonia's improvement with parenting skills, even Martin did not think she was ready to
reunify with L.R. While Martin thought she could parent L.R. with accommodations such
as in-home help, she did not indicate when or whether LaDonia would be able to parent
without such accommodations. Nor did she know of a service that could provide the in-
home accommodations LaDonia required.
Even assuming LaDonia could improve and eventually parent L.R. without
accommodations, she fails to address the court's finding under RCW 13.34.180(1 )(e)
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No. 73763-5-1/20
that there is little likelihood her conditions "will be remedied ... in the near future."
(Emphasis added). Findings of fact 2.27, CP at 253-54. RCW 13.34.180(1)(e) is
concerned with the correction, not just the improvement, of parental deficiencies, and
the correction must occur "in the near future." In re Dependency of DA, 124 Wn. App.
644, 656, 102 P.3d 847 (2004). What constitutes "'the near future'" depends on the
child's age and placement circumstances. In re Welfare of C.B., 134 Wn.App. 942, 954,
143 P.3d 846 (2006) (quoting InreT.L.G., 126 Wn. App. 181, 108 P.3d 156 (2005)).The
"near future" is a short period of time for a child, like L.R., who is in foster care and in
need of a permanent placement, jd.; See In re Dependency of T.R.. 108 Wn. App. 149,
164-66, 29 P.3d 1275 (2001) (one year is well beyond the foreseeable or near future for
six-year-old child). Thus, "what is perhaps eventually possible for the parent must yield
to the child's present need for stability and permanence." T.R., 108 Wn. App. at 166.
LaDonia points to nothing in the record demonstrating that she could remedy her
parental deficiencies in L.R.'s near future. In fact, there is clear and convincing
evidence to the contrary. LaDonia's caseworker and Dr. Shepel regarded her cognitive
deficits as organic and essentially irremediable. The CASA also did not believe
additional services would remedy LaDonia's deficiencies in the near future. The fact
that LaDonia still did not have unsupervised visitation despite three years of services
strongly indicated that any future progress toward reunification would be extremely
slow. In short, LaDonia's chronic cognitive deficits and mental health concerns,11
11 Findings of Fact 2.24, CP at 255.
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No. 73763-5-1/21
together with L.R.'s special needs, young age, and adoptability support the court's
finding that LaDonia's parental deficiencies could not be remedied in the near future.12
Diminishing Prospects for Early Integration Into a Permanent Home
LaDonia next contends the Department failed to prove "[t]hat the continuation of
the parent and child relationship clearly diminishes the child's prospects for early
integration into a stable and permanent home" as required by RCW 13.34.180(1 )(f).
Subsection (f) is chiefly concerned "with the continued effect of the legal relationship
between parent and child, as an obstacle to adoption; it is especially a concern where
children have potential adoption resources." In re Dependency of A.C., 123 Wn. App.
244, 250, 98 P.3d 89 (2004). The subsection also emphasizes a limited time frame for
establishing permanency for a child by use of the phrase "early integration" into a stable
and permanent home. Here, clear and convincing evidence supports the court's
findings that L.R. has prospects for adoption, that he needs permanency, and that his
prospects for early integration into a permanent home are diminished by continuing the
parent/child relationship.
12 In re Welfare of C.B., 134 Wn.App. 942, 953, 143 P.3d 846 (2006), cited by LaDonia,
is distinguishable. In C.B., the mother, whose primary deficiency related to drug use, completed
her chemical dependency programs and presented evidence from her counselors and friends
that her prognosis was good and that she was a different person. Even the State conceded that
the mother had completed all drug treatment programs, and the trial court found that she "would
likely improve." Her only outstanding service was anger management, which she was scheduled
to begin shortly after the termination hearing. She would be completely done with services in
four months. The appellate court reversed an order terminating the mother's rights, holding that
the Department failed to prove there was little likelihood her conditions could not be remedied in
the near future. The record in this case is substantially different. LaDonia had not completed all
services at the time of termination, had plateaued after initial progress with parenting skills,
suffered from severe and chronic cognitive deficiencies, had ongoing mental health concerns,
had not achieved unsupervised visitation, and had a school age child with special needs.
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No. 73763-5-1/22
Finally, LaDonia contends the Department did not carry its burden under RCW
13.34.190 of proving by a preponderance of the evidence that termination was in L.R.'s
best interest. In re Welfare of S.V.B., 75 Wn. App. 762, 775-76, 880 P.2d 80 (1994)
(best interest element must be proven by a preponderance of the evidence). LaDonia
contends the State failed to carry its burden because it failed to satisfy RCW
13.34.180(1 )(e) and (f). But as discussed above, we conclude the Department carried
its burden under RCW 13.34.180(1). LaDonia also points out that "the CASA was
hesitant to recommend termination based on the loving relationship between Rayford
and her son." Br. of Appellant at 19. But while termination was clearly a difficult
decision for all concerned, the consensus, which included the CASA, was that
termination was in L.R.'s best interest. The Department carried its burden.
Affirmed.
f -y-
WE CONCUR:
^OJ^CT-
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