Dependency Of K.o.

FILEti
COURT OF APPEALS 01V I rt)ortl. nrir,r
STATE OF WASHINGTON

2018 SEP $7 AM 9:03

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of
dob: 4/11/14, No. 77653-3-1

Minor Child,
K. 0.,
Appellant,
DIVISION ONE
V.
UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

Respondent. FILED:" September 17, 2018

SMITH, J. — K.O. appeals from the order terminating her parental rights to her

daughter K.H.O. She contends the Department of Social and Health Services

(Department)1 failed to offer or provide all necessary services capable of correcting

her parental deficiencies and failed to prove there was little likelihood her parental

deficiencies could be remedied in the near future. She also argues the Department

violated her due process rights by failing to provide adequate notice of her alleged

parental deficiencies. Because substantial evidence supports the relevant findings,

and K.O. fails to demonstrate a due process violation, we affirm.

1 As of July 1, 2018, the new Department of Children, Youth, and Families has assumed
the functions and duties of the Department of Social and Health Services related to child
welfare services. See RCW 43.216.906.
 •No. 77653-3-1/2
• :" v

•IL;
.
ie •

FACTS
K.O. is the mother of K.H.O.(born April 11, 2014). K.H.O. was three years old

at the time of the termination trial. K.O. has been married to K.H.O.'s father since

1995. During the dependency, the father initially participated in some services with

K.O., but then dropped out and stopped visiting K.H.O. in late 2015.2

K.H.O. has special needs, some of which require home treatment. She likely

suffers from childhood apraxia of speech, a motor disorder affecting how the facial

muscles form words. She may also have neurodevelopmental delays, but a final

diagnosis is not yet possible because of her age. K.H.O. has a wobbly gait and

apparent speech and developmental delays that require physical therapy,

occupational therapy, and speech therapy. When K.H.O. started attending

preschool, the school district developed an independent education program (IEP)for

her, parts of which must be implemented at home.

K.O. has a long history of involvement with the Department. Following several

dependencies that began in 1998, the court eventually terminated K.O.'s rights to all

seven of her other children. The terminations were based in part on the parents'

long-time drug and alcohol abuse and chronic neglect of the children, including the

children's unaddressed developmental delays and the presence of sanitation and

safety hazards in the home.

In an October 1999 psychological evaluation, Nicholas Wiltz, Ph.D.,found that

the filth and disarray in K.O.'s home were symptomatic of her personality pattern.

2 The court terminated the father's parental rights in a separate proceeding that is not
part of this appeal.

-2-
No. 77653-3-1/3

Although K.O.'s intellectual ability was low, Dr. Waz believed she had sufficient

intelligence to understand and develop parenting skills. But he concluded that K.O.

was unlikely to meet the children's needs in the future or benefit from Department

services.

Leslie Rawlings, Ph.D., conducted a psychological evaluation in 2003. Of

particular concern was K.O.'s inability to acknowledge parental deficiencies,

indicating that she had gained little from earlier services. Nor did K.O. acknowledge

any concerns about the neglect of her children. Dr. Rawlings concluded that K.O.

would be unable to provide a safe and sanitary living environment for her children.

In conjunction with a 2006 dependency for her daughter E.M.O., K.O.

stipulated that she may have a learning disability or other developmental disability

that interfered with her ability to adequately parent her children. In June 2008, K.O.

completed a neuropsychological evaluation with David White, Ph.D. White found that

K.O.'s cognitive disability would likely impair her parenting abilities, including limiting

her judgment and reasoning and her ability to understand the consequences of her

actions. White believed that K.O. would also suffer from a limited knowledge base

and a tendency to think in concrete terms. He expected that she would experience

difficulties in processing information quickly and understanding nonverbal

information. Although K.O. was participating in services, White was concerned about

her ability to follow through. K.O. stipulated to the termination of her parental rights

to E.M.O.

Shortly after K.H.O.'s birth on April 11, 2014, the Department attempted to find

the child and her parents. In a dependency petition filed on April 24, 2014, the

-3-
No. 77653-3-1/4

Department alleged that K.H.O. was at a significant risk of harm based in part on the

parents' prior termination history. The petition further alleged that K.O. had emotional

problems and symptoms of Post-Traumatic Stress Disorder(PTSD)and referenced

Dr. Wiltz's 1999 evaluation of K.O.'s parenting ability and a family member's

concerns about the parents' mental capacity to safely parent the children. The

Department located K.H.O. on May 21, 2014, and placed her in foster care, where

she has remained.

On December 15, 2014, K.O. entered into an agreed dependency order,

stipulating that K.H.O. was dependent under RCW 13.34.030(6)(c)(no parent

capable of caring for the child in circumstances such that the child is in danger of

substantial damage to psychological or physical development). K.O. agreed that she

had mental health issues requiring services, and the court ordered her to participate

in individual and couple's counseling. During the course of the dependency, the

court ordered K.O. to participate in numerous services, including a parenting

assessment, parenting classes, a life skills class, housing navigator services, and

Family Preservation Services (FPS).

Shortly after entry of the dependency order, the Department asked

psychologist Yie-Wen Kuan to evaluate K.O.'s ability to parent effectively and to deal

with "solutions to life issues"3 in light of her cognitive abilities and mental health

issues. After conducting a neuropsychological evaluation, Kuan diagnosed K.O. with

a mild intellectual disability and bipolar disorder. Kuan found that K.O.'s cognitive

limitations impaired her reasoning, judgment, planning, and problem-solving skills.

3 Exhibit (Ex.)64, at 1.

-4-
No. 77653-3-1/5

Noting K.O.'s long history of cognitive impairment and mental health issues, Kuan

found that K.O.'s prognosis for meeting K.H.O.'s developmental, medical, and

behavioral needs over time was "dismal."4 Kuan concluded that K.O. could safely

parent K.H.O. only with the assistance of a stable adult co-parent until K.H.O.

reached adulthood. Kuan did not recommend any services.

Following evaluations in June and October 2015, psychologist Ellen Walker

diagnosed K.O. with adjustment disorder with anxiety. Dr. Walker expressed concern

about K.O.'s inaction in attempting to find appropriate and stable housing and in

pursuing related goals for independence, including regaining her driver's license and

finding employment. Walker questioned whether K.O. was sufficiently motivated for

K.H.O.'s return, suggesting that her inaction and "lack of progress in these fairly basic

areas" indicated a possible preference "to be a part-time parent to her daughter."5

Walker felt that although K.O.'s cognitive limitations would present challenges

for parenting, they did not preclude K.H.O.'s eventual return home. But Walker

concluded it would not be possible to determine K.O.'s ability to safely parent until

she obtained appropriate housing and could demonstrate the necessary parenting

skills in the home.

Julie Sather, a licensed mental health counselor, conducted a parenting

assessment in April 2017. At the time of the evaluation, K.O. was still living with

K.H.O.'s father. She informed Sather that although she planned to obtain separate

housing to parent K.H.O., she planned to stay married to K.H.O.'s father. K.O.

4 Ex. 64, at 12.

5 Ex. 138, at 8.

-5-
No. 77653-3-1/6

acknowledged that she did not fully understand why her rights to her other children

had been terminated and was "still trying to figure that out."6

Sather was concerned that despite the length of the dependency, K.O. still

had not provided stable, appropriate housing for K.H.O. K.O. remained in denial

about a number of significant issues, including the seriousness of K.H.O.'s special

needs, the domestic violence in her relationship with K.H.O.'s father, and her own

childhood neglect and abuse. Nor could K.O. articulate why her parental rights to her

other children were terminated. Sather agreed with prior recommendations that

potential long term success for K.O. required her to secure the assistance of a

knowledgeable co-parent. Sather recommended that K.O. participate in Family

Preservation Services (FPS).

During most of the dependency, K.O. lived in her mother's home, along with

her husband. As a child, K.O. had suffered some abuse and neglect from her

mother. K.H.O.'s father was convicted of domestic violence for an incident involving

K.O. Because K.O. knew that the mother's home was not a suitable residence, she

never allowed the Department to inspect it. The Department assisted K.O. in

attempting to find suitable and stable housing.

Shortly before the termination trial, K.O. moved out of her mother's home and

moved in with Alice Platt, a friend from church. Platt assisted K.O. in finding

transportation for her appointments. But Platt was physically unable to assist K.O. in

controlling an active child, and K.O. acknowledged that the housing arrangement was

not permanent. K.O. also filed for divorce.

6 Ex. 123, at 7.
No. 77653-3-1/7

As the trial court found, K.O. was cooperative, completed essentially all court-

ordered services, and regularly participated in extensive monitored visitation:
2.10 The mother was ordered to engage in individual counseling,
couples counseling, Project Aware, parenting classes, and
obtain a parenting assessment and psychological evaluation.
The mother presents as a pleasant, loving person who is
genuinely interested in regaining full custody of her child. During
this dependency, the mother has been cooperative and has
completed all required classes and evaluations, is engaged in
ongoing services, and has had regular visitation with [K.H.0.].
Visitation has moved from supervised visits of three hours, twice
per week, to monitored visitation for up to 17 hours per week.7

The Department filed a termination petition on October 13, 2015. After a

series of continuances, a five-day trial occurred in May and August 2017.

At trial, Dr. Kuan testified that K.O.'s recent move from her mother's home and

continuation with services did not change her evaluation. Kuan explained that K.O.'s

cognitive disability and mental health issues, lack of social support, and lack of

insight into the potential harm to the child remained and limited K.O.'s ability to

provide the necessary stability and permanence for K.H.O. Kuan was concerned that

K.O.'s cognitive limitations and mental health issues, when combined with the

inevitable stresses of everyday life, would make it even harder for her to respond to

K.H.O.'s needs.

Laura Durkin testified that she recently began providing FPS services to K.O.

in July 2017. At the time of trial, K.O. had completed seven sessions. Durkin

explained that although the general goal was reunification, the sessions focused

primarily on disciplinary techniques. Durkin described the techniques in the sessions

7 Clerk's Papers(CP)at 17.

-7-
No. 77653-3-1/8

as similar to those in parent coaching. K.O. did not appear to have any cognitive

difficulties that prevented her from benefitting from the sessions, and Durkin believed

K.O. had made some progress.

Dianne Herivel, a licensed therapist and mental health counselor, testified that

she has been counseling K.O. since about 2014. The counseling sessions involved

K.O.'s PTSD symptoms, stress management, communication skills, and life

management skills. Herivel had no concerns about K.O.'s cognitive abilities to

perform "basic functions for herself."8 Herivel's counseling sessions did not involve

parenting issues.

At trial, K.O. acknowledged that throughout most of the dependency, she

planned to parent K.H.O. together with her husband and only recently decided to

move out and divorce him. K.O. believed that her parental rights to her other children

were terminated because she did not follow through with services. She denied that

there were numerous sanitation and safety hazards, but acknowledged she should

have had the children tested for learning disabilities sooner and taken them to the

dentist.

The trial court found that the State satisfied its burden and terminated K.O.'s

parental rights. The court acknowledged that although K.O. clearly loved K.H.O. and

had made some progress, clear, cogent, and convincing evidence established that

K.O.'s cognitive disability and mental health issues would prevent her from providing

proper care within the near future:
2.21 At present, given her mental deficiencies and mental health
issues, the Department believes the mother needs independent,

8 Report of Proceedings(RP)(Aug. 8-7-2017) at 114.

-8-
No. 77653-3-1/9

stable housing and a long-term co-parent or support person who
can assist her in raising [K.H.0.1 daily until she reaches the age
of 18. Although they acknowledge she has worked hard, she has
not achieved these items.

2.22 The mother points to the fact that she did finally move out of the
family home and is seeking to divorce her husband. The mother
claims that she is making progress. In support of this claim she
points to the testimony of Laura Durkin, the FPS provider for the
mother and [K.H.0.], who noted no concerns about the mother's
cognitive abilities. She has no concerns about the mother taking
care of herself and no concerns as to the care of[K.H.0.] that
cannot be mitigated through a family safety plan. The mother
argues that the Court should simply impose the FPS
Reunification Plan.

2.23 The mother also points to the contrary conclusions reached by
Dianne Herivel, a licensed marriage and family therapist, as to
the mother's ability to make progress. Ms. Herivel testified that
she sees a lot of progress with [K.0.] in terms of her PTSD
symptoms, emotional dysregulation due to past trauma, and
flexibility in parenting skills. Although she offers opinions on the
mother's parenting skills, she admitted that she is not involved in
working with [K.0.] on her parenting issues. She notes that the
mother has expanded her social support network from Neighbors
in Need program to Esther's Place.

2.24 Although the Department acknowledges the mother has made
some progress, it has been so slow that she will not be capable
of parenting on her own within the next six months. Ian Krauter,
social worker, testified that although the mother has taken
numerous parenting classes, parenting assessments and the
like, these services have had very little impact on her parenting
skills. She learns a skill but cannot adapt it to the new situations
presented with an active, special needs child who is changing as
she grows.

2.25 During her time on the case, Sarah Shaffer, social worker, stated
the same concerns. She noted concerns about the mother's
parental judgment and lack of insight into the child's needs. She
found the mother has trouble remembering tasks. Ms. Shaffer
had to break lists down into small steps so that she could
manage them, which still did not work well. She concluded that
more services and additional time to complete them is not going
to change the situation. The AGAL [Attorney Guardian Ad Litern]

-9-
No. 77653-3-1/10

has met with all of the service providers and the mother and
agrees with the State. He offers that termination of the mother's
parental rights is in the best interests of the child.

2.26 The mother presently suffers from a psychological incapacity or
mental deficiency (here, a long term intellectual disability coupled
with bipolar disorder and PTSD), that is so severe and chronic as
to render the parent incapable of providing proper care for the
child for extended periods of time on her own. Although her
mental illness may be stable at present due to medication and
counseling, her cognitive deficits are permanent. These are not
conditions that she can cure, regardless of her best efforts. The
Court finds the testimony of Ms. Durkin and Ms. Herivel
unpersuasive in light of the extensive neuropsychological testing
results and opinions of the experts presented in this case. The
Court concludes that it has been proven by clear, cogent and
convincing evidence that there is no treatment that can
render the parent capable of providing proper care for the child in
the near future.9

K.O. appeals.
ANALYSIS

Standard of Review

Parents have fundamental liberty and privacy interests in the care and custody

of their children. In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298

(1995)(citing In re Dependency of J.B.S., 123 Wn.2d 1, 12, 863 P.2d 1344 (1993));

v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,71 L. Ed. 2d 599(1982).
Santoskv.

But this right is not absolute. See In re Welfare of Sumev,94 Wn.2d 757, 762, 621

P.2d 108 (1980); Santosky, 455 U.S. at 766-67. "When the rights of basic nurture,

physical and mental health, and safety of the child and the legal rights of the parents

are in conflict, the rights and safety of the child should prevail." RCW 13.34.020.

9 CP at 18-19.

-10-
No. 77653-3-1/1 1

Before terminating parental rights, Washington courts follow a two-step

process. First, the State must prove the six statutory elements of RCW 13.34.180(1)

by clear, cogent, and convincing evidence:
(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. .. ; and

(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.. . .

In addition, due process requires the trial court to expressly or impliedly find by clear,

cogent, and convincing evidence that the parent is currently unfit. In re Welfare of

A.B., 168 Wn.2d 908, 918-19, 232 P.3d 1104(2010).

If the court finds the State has met its burden under RCW 13.34.180(1), the

court then determines by a preponderance of the evidence if termination is in the

best interests of the child. RCW 13.34.190(1)(b); A.B., 168 Wn.2d at 911.

When reviewing the decision to terminate parental rights, we determine

whether substantial evidence supports the court's findings of fact by clear, cogent,

and convincing evidence. In re Parental Rights to K.M.M., 186 Wn.2d 466, 477, 379

-11-
No. 77653-3-1/12

P.3d 75(2016)(citing In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d

113(1999)). Clear, cogent, and convincing evidence exists when the evidence

shows the ultimate fact at issue is highly probable. In re Dependency of K.R., 128

Wn.2d 129, 141, 904 P.2d 1132(1995).

We defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d

60, 71, 794 P.2d 850(1990). Such deference is particularly important in proceedings

affecting the parent and child relationship because of "the trial judge's advantage in

having the witnesses before him or her." In re Welfare of A.W., 182 Wn.2d 689, 711,

344 P.3d 1186 (2015).

Notice of Parental Deficiencies

K.O. contends the trial court violated her right to due process when it failed to

provide adequate notice of her parental deficiencies. She argues that neither the

dependency petition nor the termination petition informed her that the Department

was relying on her cognitive disability and lack of insight into K.H.O.'s needs to

terminate her parental rights. See In re Dep. of A.M.M., 182 Wn. App. 776, 791-93,

332 P.3d 500(2014)(insufficient notice of parental deficiencies violates due

process).

Termination proceedings must accord parents strict due process protections,

including "[n]otice, open testimony, time to prepare and respond to charges, and a

meaningful hearing before a competent tribunal in an orderly proceeding." In re

Dependency of H.W., 70 Wn. App. 552, 555 n.1, 854 P.2d 1100(1993)(quoting In re

Moseley, 34 Wn. App. 179, 184,660 P.2d 315 (1983)); see also In re Interest of

-12-
No. 77653-3-1/13

Darrow, 32 Wn. App. 803, 806,649 P.2d 858(1982). "The parents must be clearly

advised in adequate time to meet[the termination petition] to prevent surprise,

helplessness and disadvantage." In re Welfare of Martin, 3 Wn. App. 405, 410, 476

P.2d 134 (1970).

But contrary to K.O.'s suggestion, due process does not require that parental

deficiencies be expressly alleged in the dependency or termination petitions. Rather,

an appellate court looks to the entire dependency and termination record when

determining the adequacy of notice. See In re Parental Rights of F.M.O., 194 Wn.

App. 226, 231-32, 374 P.3d 273(2016). Generally,
termination is the endgame in lengthy proceedings where the parties
have wrestled over the needed services during the previous years and
there is no question what deficiencies are truly at issue. In most
instances they have already been the subject of repeated evaluations
and earlier court proceedings.[Footnote omitted].

Id. at 232.

Substantial evidence supports the trial court's findings that K.O. has some

cognitive impairment and mental health issues that impact the mother's parenting

ability and that impact constitutes the deficiencies. The record shows that over many

years, K.O. participated in multiple evaluations that noted her intellectual disability

and mental health issues and the limitations they placed on her ability to parent.

In the agreed order of dependency, K.O. acknowledged she had mental health

issues that required services. The termination petition identified K.O.'s parenting

deficiencies as the chronic neglect of her children that resulted in seven prior

terminations, mental health issues, and the lack of safe and suitable housing. The

petition also alleged that K.O. remained in denial about her mental health issues and

-13-
No. 77653-3-1/14

about the underlying issues that led to the dependency proceeding and the prior

parental terminations. The petition further alleged that K.O. did not understand

K.H.O.'s physical, mental, and developmental needs and was incapable of meeting

those needs. The evidence at trial established that the Department social workers

met regularly with K.O. and her attorney to discuss K.O.'s parental deficiencies,

develop specific goals and plans for reunification, and review K.O.'s participation in

services.

Significantly, prior to the termination trial, counsel for K.O. moved in limine "to

exclude evidence of parental deficiencies for which the mother was not provided

notice."10 The trial court reserved ruling on the motion and directed counsel to object

to any "specific evidence that you believe would be outside the scope of the notice."11

During opening argument, counsel for the Department asserted that K.O. "lack[ed]

insight"2 and was incapable of providing for K.H.O.'s emotional, physical, mental,

and developmental needs. The guardian ad litem stated the evidence would show

that because of her "cognitive deficiencies,"13 K.O. would require support from a co-

parent in order to safely parent K.H.O. During closing argument, counsel for the

Department summarized the evidence of how K.O.'s cognitive limitations affected her

ability to safely parent K.H.O. Counsel for K.O. raised no objection to any of these

10 RP (May10, 2017) at 8.
11 Id. at 9.

12 Id.

13 RP 1, at 16.

-14-
No. 77653-3-1/15

arguments or to the admission of evidence of K.O.'s intellectual disability or lack of

insight as outside the scope of the Department's notice.

Viewed in its entirety, the record demonstrates that the Department fully

notified K.O. of the parental deficiencies that could form the basis of termination,

including her lack of insight into K.H.O.'s special needs and the intertwined

relationship between her intellectual disability and her ability to safely parent K.H.O.

K.O. fails to establish a due process violation.

All Necessary and Available Services

K.O. contends that the Department failed to offer or provide her with all

necessary and reasonably available services capable of correcting her parental

deficiencies within the foreseeable future. See RCW 13.34.180(1)(d). In order to

meet this element, the Department must prove it offered services specifically tailored

to the individual's needs. In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d

1275 (2001).

K.O. argues that the Department failed to provide her with services through its

Developmental Disabilities Administration (DDA)and failed to tailor the services that

it did offer to her specific cognitive limitations.

K.O. first contends the Department failed to make reasonable efforts to

provide her with services through the DDA. She argues that had she qualified for

DDA, the Department could have provided greatly expanded services tailored to her

specific needs.

But K.O. failed to raise any issue in the trial court about the DDA or the

additional services that it provides. The only evidence in the record shows that a

-15-
No. 77653-3-1/16

Department social worker helped K.O. apply for DDA services and that the

application and K.O.'s appeal were both denied. Under the circumstances, the

record on appeal is insufficient to permit meaningful review of K.O.'s contentions

regarding the Department's efforts or the relevance of DDA services. See Bulzomi v.

Dep't of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996(1994)("insufficient

record on appeal precludes review of the alleged errors")(citing Allemeier v.

University of Wash.,42 Wn. App. 465, 472-73, 712 P.2d 306 (1985)).

Similarly, K.O. raised no challenge in the trial court to the adequacy of the

offered services or suggested that they were not tailored to her specific needs. Nor

did she allege there were other specialized services that would have better

addressed her parental deficiencies.

The evidence was undisputed that K.O. participated for years in all court-

ordered and recommended services, including parenting classes and coaching.

None of the service providers suggested the services or service goals were

inappropriate in light of K.O.'s limitations or identified any services or providers that

would have better addressed K.O.'s parental deficiencies. The Department social

workers were aware of the relevant evaluations and regularly met with K.O. to

address her progress and adjust goals and techniques as necessary.

Because K.O. failed to raise the issues of DDA services and tailoring in the

trial court, the record is insufficient to permit appellate review.

K.O. also contends the Department failed to provide services that would have

enabled her to gain insight into her parental deficiencies. The record fails to support

this contention.

-16-
No. 77653-3-1/17

During the course of the lengthy dependency, K.O. participated actively and

repeatedly in all court-ordered services, including counseling, evaluations, parenting

classes, and individualized parent coaching. The Department encouraged K.O. to

learn about K.H.O.'s special needs by assisting her to participate in K.H.O.'s medical

appointments. To accommodate K.O.'s learning style, Department social workers

would meet regularly with her and her attorney to develop a reunification plan and

review K.O.'s progress with specific tasks and goals. When K.O. encountered

difficulties understanding or completing tasks and goals, the Department attempted to

restructure them into smaller, more manageable segments. The record amply

demonstrates that the Department offered services to enable K.O. to gain an insight

into her parental deficiencies.

Substantial evidence supports the trial court's finding that the Department

offered or provided all necessary and reasonably available services capable of

correcting parental deficiencies within the foreseeable future in accordance with

RCW 13.34.180(1)(d).14

Little Likelihood that Conditions Will Be Remedied in the Near Future

K.O. contends the Department failed to prove there is "little likelihood that

conditions will be remedied so that the child can be returned to the parent in the near

future." RCW 13.34.180(1)(e). The focus of this requirement is whether the

14 Because the Department offered or provided all necessary and reasonably available
services, we need not address K.O.'s contention that the Department failed to prove that the
provision of other services would have been futile. See In re Parental Rights to B.P., 186
Wn.2d 292, 316, 376 P.3d 350(2016)(a parent is entitled to all services available to address
a barrier to reunification unless the Department shows that providing the services would be
futile).

-17-
No. 77653-3-1/18

identified deficiencies have been corrected. See In re Welfare of M.R.H., 145 Wn.

App. 10, 27, 188 P.3d 510 (2008). What constitutes "near future" necessarily

depends on the specific circumstances of each case, including the child's age and

placement circumstances. In re Welfare of C.B., 134 Wn. App. 942, 954, 143 P.3d

846 (2006); see also In re A.W., 53 Wn. App. 22, 32, 765 P.2d 307(1988)("Although

1 year may not be a long time for an adult decisionmaker, for a young child it may

seem like forever").

RCW 13.34.180(1)(e) also provides:
A parent's failure to substantially improve parental deficiencies within
twelve months following entry of the dispositional order shall give rise to
a rebuttable presumption that there is little likelihood that conditions will
be remedied so that the child can be returned to the parent in the near
future. The presumption shall not arise unless the petitioner makes a
showing that all necessary services reasonably capable of correcting
the parental deficiencies within the foreseeable future have been clearly
offered or provided.
In determining the likelihood that parental deficiencies will be remedied in the near

future, the trial court may also consider whether there is "[a] psychological incapacity

or mental deficiency of the parent that is so severe and chronic as to render the

parent incapable of providing proper care for the child for extended periods of time or

for periods of time that present a risk of imminent harm to the child,. . ." RCW

13.34.180(1)(e)(ii).

K.O. contends the trial court erred in applying the rebuttable presumption.

She argues the Department failed to establish that she did not make substantial

progress after entry of the dependency order.

Service providers and Department social workers acknowledged that K.O.

made some minimal, discrete progress while participating in certain services. But the

-18-
No. 77653-3-1/19

evidence, including a parenting evaluation shortly before the termination trial,

established that during the three-year dependency, K.O. failed to make substantial

progress in rectifying her parental deficiencies. K.O. continued to demonstrate a lack

of insight into K.H.O.'s special needs and an inability to apply skills to new situations.

She denied or minimized the circumstances leading to the termination of parental to

her other children and made only belated efforts to find stable and appropriate

housing and an adequate support network.

K.O. reliance on the testimony of Dianne Herivel, K.O.'s counselor, is

misplaced. Herivel acknowledged that K.O. made "great progress in her ability to

address stressful situations and gain confidence in self-advocacy."16 But as the trial

noted, Herivel's counseling did not address K.O.'s parenting deficiencies.

K.O. also contends that insufficient evidence supports the trial court's finding

that her long-term intellectual disability and mental health issues are "so severe and

chronic" as to render her "incapable of providing proper care for the child for

extended periods of time on her own."16 Cognitive impairment and mental health

issues do not, without more, constitute proof that a parent is unfit. In re Welfare of

A.B., 181 Wn. App. 45, 65, 323 P.3d 1062(2014). The relevant issue is whether

such circumstances directly affect the ability to parent. Id.

The trial court considered a long history of evaluations that diagnosed K.O.

with cognitive impairments that limited her ability to safely parent K.H.O. During the

dependency, Dr. Kuan diagnosed K.O. with a mild intellectual disability, bipolar

16 RP 2, at 111.

16 Findings of Fact(FF) 2.26, CF at 19.

-19-
No. 77653-3-1/20

disorder, and PTSD. Kuan found that K.O.'s cognitive disability limited her ability to

solve problems, adapt to new and complicated situations, and exercise judgment.

K.O.'s lack of insight and empathy also placed her child at risk. Kuan believed that

K.O. could not safely parent K.H.O. herself and would require the full-time assistance

of another adult until K.H.O. turned 18. Kuan concluded that K.O.'s prognosis for

meeting K.H.O.'s developmental, medical, and behavioral needs over time was

"'dismal.'"17

Ellen Walker, who evaluated K.O. in 2015, felt that K.O.'s cognitive limitations

do not necessarily preclude reunification, but concluded it was not possible to

determine K.O.'s ability to safely parent K.H.O. until she was able to demonstrate

parenting skills in a stable and appropriate home setting. In this context, Walker

stressed her concern about K.O.'s inaction in attempting to find a stable home or

pursue goals that would foster independence, such as restoring her driver's license

and seeking employment.

Julie Sather, who evaluated K.O. shortly before the termination trial, also

expressed concern about K.O.'s failure, despite the lengthy dependency, to provide

appropriate housing for K.H.O. Sather also noted K.O.'s continuing lack of insight

into K.H.O.'s special needs and her denial and minimization of issues relating to her

parenting deficiencies. Sather agreed that K.O. would require a long-term co-parent

to successfully parent K.H.O.

Substantial evidence supports the finding that K.O.'s intellectual disability and

mental health deficiency are so severe and chronic as to render her incapable of

FF 2.17, CP at 18.

-20-
No. 77653-3-1/21

providing parental care for long periods of time and that there is little likelihood that

conditions will be remedied so that K.H.O. can be returned in the near future.

The order terminating K.O.'s parental rights is affirmed.

WE CONCUR:

-21-