In The Matter Of The Dependency Of: K.d.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

In the Matter of the Dependency of No. 80209-7-I

K.D., ORDER WITHDRAWING
AND SUBSTITUTING OPINION
A minor child.

On March 30, 2020, the appellant-mother filed a motion requesting that this court

remove her name from the case title, remove her child’s birthdate from the caption, and

change the case caption of the appeal to “In re K.D.” On March 31, 2020, the clerk of

the court denied the mother’s motion and on June 8, 2020, we denied her motion to

modify the clerk’s ruling. The mother filed a motion for discretionary review of the order

denying the motion with the Washington State Supreme Court.

On February 5, 2021, the Supreme Court granted the mother’s motion of

August 28, 2020 for discretionary review as to the confidentiality issue only and entered

an order on July 22, 2021 remanding to this court to remove the name of the parent and

to remove the birthdate of the child from the case caption to comply with RAP 3.4.

Pursuant to the order of the Supreme Court, the panel has determined that the opinion

shall be withdrawn and a substitute opinion filed. Now, therefore, it is hereby
No. 80209-7-I/2

ORDERED that the opinion filed on June 8, 2020, is withdrawn and a substitute

opinion shall be filed.

2
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

In the Matter of the Dependency of No. 80209-7-I

K.D., UNPUBLISHED OPINION

A minor child.

SMITH, J. — Danielle Graves appeals the juvenile court’s order terminating

her parental rights. She contends that the court violated the separation of

powers when it entered an order in the underlying dependency proceeding

directing the Department of Children, Youth, and Families to file a petition to

terminate the parent-child relationship. The mother also alleges a violation of her

due process right to an impartial tribunal because the same judge who entered

the order directing the Department to file a petition presided over the termination

fact-finding hearing. Finally, she argues that the Department did not meet its

statutory burden to terminate her parental rights because it failed to offer or

provide her with a psychological evaluation. We affirm. 1

FACTS

Danielle Graves is the mother of K.D. She struggles with a severe drug

addiction and used heroin throughout her pregnancy. K.D. was drug-affected at

1The mother also seeks modification of the clerk’s March 31, 2020, ruling
denying her motion to change the case caption and to use the parent’s initials in
the decision. The motion is denied.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80209-7-I/2

birth and has special needs. For approximately seven months following K.D.’s

birth, the Department of Children, Youth, and Families offered voluntary services

to both parents that were focused on addressing their substance abuse. 2

In May 2017, when K.D. was almost two years old, the Department filed a

dependency petition based on concerns about continuing drug use and after

receiving a report that the mother was involved in a domestic violence incident

with K.D.’s maternal grandmother while the grandmother was holding K.D. The

mother was actively using heroin and methamphetamine at the time. K.D. was

placed in the care of his paternal grandparents. Apart from a six-week period in

late 2017 when K.D. resided with his mother at a treatment facility, K.D. has

remained in his grandparents’ care throughout the dependency.

In August 2017, the court entered an agreed dependency order as to the

mother, finding K.D. dependent because he had no parent, guardian, or

custodian capable of adequately caring for him under RCW 13.34.030(6)(c). The

agreed-upon factual basis for the dependency was the mother’s substance

abuse. The mother acknowledged that her substance abuse “need[ed] to be

addressed by the services” outlined in the dispositional order and that those

services were “reasonable and necessary to address her parental deficiencies.”

The dispositional order required the mother to complete a drug and alcohol

evaluation, to participate in random urinalysis testing, to attend sober support

groups, and to complete a mental health assessment, a parenting assessment,

2 The father relinquished his parental rights during the 2019 termination
trial and is not a party to this appeal.

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No. 80209-7-I/3

and an anger management assessment. The order also required her to follow all

treatment recommendations of the evaluators and service providers and to

“[p]rovide documentation of Psychological evaluation.”

Throughout the dependency, the Department focused primarily on the

mother’s chronic substance abuse as her primary parental deficiency. In May

2017, after the Department filed the dependency petition, it provided the mother

with a referral for a substance abuse evaluation. That evaluation led to a

recommendation for inpatient treatment.

In August 2017, the mother entered a six-month inpatient treatment

program at Isabella House in Spokane. The program is tailored to pregnant and

parenting women and offers comprehensive services that include substance

abuse treatment, mental health treatment, and parent coaching. Soon after she

began the program, the Department arranged for K.D. to be placed with the

mother at Isabella House. However, approximately five weeks later, the mother

left the treatment program.

The mother took K.D. when she left Isabella House and did not notify the

Department as to her whereabouts for several days. When he was returned to

the care of his grandparents, K.D. had sores in his mouth, an infection under his

fingernails, and experienced night terrors. He was referred for an assessment

which led to a recommendation for counseling.

The Department referred the mother for another substance abuse

evaluation in January 2018. The mother decided to enter Family Drug Treatment

Court (FDTC) in February 2018. In conjunction with that program, she entered

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another inpatient long-term drug treatment program at Evergreen Recovery

Center the following month. The program at Evergreen offers services for co-

occurring disorders and in addition to drug treatment, offers comprehensive

mental health treatment. A month into the program, the mother again abandoned

treatment and was discharged from FDTC. In its April 2018 order discharging

her from FDTC, the juvenile court directed the Department to file a termination

petition.

In July 2018, the Department referred the mother for another substance

abuse evaluation. Shortly after, the mother entered detox and then entered a

third long-term inpatient drug treatment program at Riel House in Yakima. Upon

admission, the mother was experiencing withdrawal and the treatment provider

diagnosed her with substance use disorders related to opioids, amphetamines,

and cocaine. Like the other treatment programs the mother attempted, Riel

House offers substance abuse treatment in conjunction with mental health

treatment and parenting education. Six weeks into the program, the mother

discontinued treatment.

In the meantime, in August 2018, the Department filed a petition to

terminate the mother’s parental rights. In the eight months leading up to the fact-

finding hearing, the mother did not reengage in treatment. She told the assigned

social worker in early 2019 that she intended to enter another long-term

treatment program but did not do so.

In addition to substance abuse treatment, throughout the dependency the

Department offered the mother services related to mental health, anger

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management, and urinalysis testing, and services to enable her to develop

parenting skills. Although the mother was permitted to visit K.D. twice per week,

she did not visit consistently. The Department also offered the mother housing

assistance. The mother described her living environment with her mother as

“toxic” and told the assigned social worker that she would not be able to stop

using drugs while living there. Nevertheless, the mother did not follow up on the

Department’s offer to provide housing resources.

The hearing took place over two days in May 2019. The mother did not

appear at trial. According to the mother’s attorney, she entered a detox program

on the eve of trial. K.D. was almost four years old at the time of the hearing and

had been out of his mother’s care for nearly two years. After considering the

testimony of 10 witnesses and more than 30 exhibits, the court entered over 100

findings of fact and conclusions of law and an order terminating the mother’s

parental relationship to K.D. The mother appeals.

Standard of Review

“Parents have a fundamental liberty interest in the care and welfare of

their minor children.” In re Dependency of Schermer, 161 Wn.2d 927, 941, 169

P.3d 452 (2007). To terminate the parent-child relationship, the State must

satisfy two statutory prongs. In re Dependency of K.N.J., 171 Wn.2d 568, 576,

257 P.3d 522 (2011). First, the State must establish the six elements of RCW

13.34.180(1) by clear, cogent, and convincing evidence. RCW

13.34.190(1)(a)(i). Evidence is clear, cogent, and convincing if it established the

ultimate fact in issue as “‘highly probable.’” In re Dependency of K.R., 128

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No. 80209-7-I/6

Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wn.2d

736, 739, 513 P.2d 831 (1973)). Second, the State must show by a

preponderance of the evidence that termination serves the best interests of the

child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232

P.3d 1104 (2010). “Whether a termination is in the best interests of a child must

be determined based upon the facts of each case.” In re Dependency of A.M.,

106 Wn. App. 123, 131, 22 P.3d 828 (2001). We place very strong reliance on a

trial court’s determination of what serves the child’s best interests. In re Welfare

of L.N.B.-L., 157 Wn. App. 215, 255, 237 P.3d 944 (2010).

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

determining whether the court’s findings of fact are supported by substantial

evidence and whether those findings support the court’s conclusions of law. In re

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

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

person of the truth of the declared premise.” In re Welfare of T.B., 150 Wn. App.

599, 607, 209 P.3d 497 (2009) (citing World Wide Video, Inc. v. City of Tukwila,

117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the

findings of fact are supported by substantial evidence “must be made in light of

the degree of proof required.” P.D., 58 Wn. App. at 25. In determining whether

substantial evidence supports the trial court’s findings, “this court does not weigh

the evidence or the credibility of witnesses.” In re Dependency of E.L.F., 117

Wn. App. 241, 245, 70 P.3d 163 (2003).

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No. 80209-7-I/7

Separation of Powers

The mother contends that the juvenile court invaded the prerogative of the

executive branch—here the Department—and thereby violated the separation of

powers when the court ordered the Department to file a petition to terminate her

parental rights. The issue of a trial court’s legal authority is a question of law we

review de novo. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21, 332 P.3d 1099

(2014).

The Department raises as a threshold matter whether the challenged April

2018 order entered in the dependency is reviewable in the mother’s appeal of the

order terminating her parental rights.

A termination proceeding is a new proceeding, rather than an extension of

the prior dependency action, because the “purpose of a dependency proceeding

and a termination proceeding are diametric.” In re Welfare of S.I., 184 Wn. App.

531, 540, 337 P.3d 1114 (2014). The mother did not appeal from the 2018 order,

or from any other order entered in the prior dependency matter. 3 In her appeal,

the mother thus attempts to collaterally challenge an order in an action that was

not the action in which the order was rendered. As such, her collateral challenge

can be maintained only on the basis of fraud that goes to the court’s jurisdiction.

Mueller v. Miller, 82 Wn. App. 236, 250-51, 917 P.2d 604 (1996); Batey v.

3 Because RAP 2.2 explicitly allows an appeal as of right only of an order
following a finding of dependency, it appears that the court’s order discharging
the mother from FDTC would be reviewable only under the discretionary review
standards of RAP 2.3.

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No. 80209-7-I/8

Batey, 35 Wn.2d 791, 798, 215 P.2d 694 (1950); Anderson v. Anderson, 52

Wn.2d 757, 328 P.2d 888 (1958).

The mother insists that the order entered in the underlying dependency

proceeding is properly before this court because the dependency and termination

matters are intertwined. And she argues that her appeal of the termination order

brings up for review the 2018 dependency order because the termination action

was premised on that order. We agree with the Department. Because the

dependency proceeding is legally distinct from the termination proceeding, the

April 2018 order entered in the dependency matter is not reviewable in the

mother’s appeal of the termination order.

But even if we assume that the 2018 order is properly before us, the

juvenile court’s 2018 order did not violate the separation of powers.

A fundamental principle of our constitutional system is that “the

governmental powers are divided among three branches—the legislative, the

executive, and the judicial—and that each is separate from the other.” State v.

Osloond, 60 Wn. App. 584, 587, 805 P.2d 263 (1991). Washington’s

constitution, much like the federal constitution, does not contain a formal

separation of powers clause. Osloond, 60 Wn. App. at 587. “Nonetheless, the

very division of our government into different branches has been presumed

throughout our state’s history to give rise to a vital separation of powers

doctrine.” See Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994).

In re the Salary of Juvenile Dir., 87 Wn.2d 232, 238-40, 552 P.2d 163 (1976).

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No. 80209-7-I/9

The purpose of the doctrine is “to ensure that the fundamental functions of each

branch remain inviolate.” Carrick, 125 Wn.2d at 135.

The validity of the separation of powers does not, however, “depend on

the branches of government being hermetically sealed off from one another.”

Carrick, 125 Wn.2d at 135. The separation of powers doctrine evolved side by

side with our constitutional scheme of checks and balances. In re Interest of

Mowery, 141 Wn. App. 263, 281, 169 P.3d 835 (2007). Harmonizing these

doctrines requires that “[t]he different branches must remain partially intertwined

if for no other reason than to maintain an effective system of checks and

balances, as well as an effective government.” Carrick, 125 Wn.2d at 135.

Separation of powers is thus grounded in flexibility and practicality and

“rarely will offer a definitive boundary beyond which one branch may not tread.”

Carrick, 125 Wn.2d at 135 (citing Juvenile Dir., 87 Wn.2d at 240). To determine

whether the separation of powers has been violated, the inquiry is not “‘whether

two branches of government engage in coinciding activities, but rather whether

the activity of one branch threatens the independence or integrity or invades the

prerogatives of another.’” Carrick, 125 Wn.2d at 135 (quoting Zylstra v. Piva, 85

Wn.2d 743, 750, 539 P.2d 823 (1975)). Our inquiry seeks to balance the value

of autonomy against the competing value of reciprocity. Wash. State Bar Ass’n,

125 Wn.2d 901, 913, 890 P.2d 1047 (1995).

To evaluate whether one branch of government is damaged by an

alleged incursion by another, courts may look to the history of the practice and

indication of toleration for coinciding activities. Carrick, 125 Wn.2d at 136. As

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the doctrine protects institutional interests, a “history of cooperation” between the

branches “militates against a finding of a separation of powers violation.” State v.

Chavez, 134 Wn. App. 657, 666, 142 P.3d 1110 (2006), aff’d, 163 Wn.2d 262,

180 P.3d 1250 (2008). These principles guide our analysis of the mother’s claim

that by ordering the Department to file a termination petition, the court

unconstitutionally invaded the prerogative and independence of the Department.

The court and the Department do not operate within mutually exclusive

spheres. In cases involving child welfare, there is a history of interdependence

and cooperation between the juvenile courts and the Department. Dependency

proceedings under the termination statute are remedial in nature and are

intended to protect children and, where possible, to reunite families. Schermer,

161 Wn.2d at 943; In re Dependency of A.L.F., 192 Wn. App. 512, 523, 371 P.3d

537 (2016). The Department has authority to provide services to parents in order

to meet the legislative objectives and to alleviate the problems that led to state

intervention. RCW 13.34.025; RCW 74.13.010, .031; A.L.F., 192 Wn. App. at

523. But the Department does not bear sole responsibility and authority to

intervene in the lives of families. In 1905, the legislature created separate

juvenile courts and added neglected children to the court’s jurisdiction. K.N.J.,

171 Wn.2d at 575. Eight years later, chapter 13.04 RCW, the predecessor to the

current termination statute, was enacted, establishing a “wide range of powers,

duties, and procedural guidelines and giving courts the authority to intervene”

when a child is found to be dependent. K.N.J., 171 Wn.2d at 575.

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Under chapter 13.34 RCW, the Department is responsible for case

management, but the juvenile court oversees dependency proceedings. The

court exercises its oversight role primarily through dependency review hearings.

K.N.J., 171 Wn.2d at 579. RCW 13.34.138(1) requires that the court review the

status of a dependent child at least every six months. The purpose of review

hearings is to evaluate the progress of the parent and determine whether it is

appropriate to continue court supervision. K.N.J. 171 Wn.2d at 579; In re

Dependency of A.W. 53 Wn. App. 22, 28, 765 P.2d 307 (1988). If a child is not

returned to a parent at a review hearing, the court must determine whether the

current long-term plan remains in the best interest of the child and whether

additional orders are required to move toward permanency. RCW

13.34.138(2)(c)(xii), (xiii). With respect to this determination, the legislature has

expressly provided that at the review hearing, the juvenile court may order the

filing of a petition to terminate the parent-child relationship. RCW

13.34.138(2)(d).

The dependency statute also allows the juvenile court to place a child with

a caregiver over the Department’s objections. RCW 13.34.130(1)(b)(i). And at

the time of the entry of the dispositional order, the court may order the filing of a

termination petition when there are aggravating circumstances, such that

reasonable efforts to reunify the family are not required. RCW 13.34.130(8),

.132(4).

In addition, when a child has been returned to a parent’s custody and then

subsequently removed, the court is required to conduct a review hearing to

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determine whether the permanent plan for the child needs to be changed,

whether a termination petition should be filed, or whether other action is

warranted. RCW 13.34.138(3)(c). The best interest of the child is the primary

consideration in the review hearing process. RCW 13.34.138(3)(c). The

permanency planning provisions also provide that the court “shall” order the

Department to file a termination petition if the child has been out of the home for

15 months of the most recent 22-month period and the court has not made a

“good cause” exception. RCW 13.34.136(3).

The mother’s argument is inconsistent with the provisions of Title 13

RCW. While the Department may file a termination petition without impetus from

the court, these provisions clearly allow, and sometimes require, the juvenile

court to order the Department to file a termination petition.

The mother suggests that all provisions authorizing the juvenile court to

order the Department to file a termination petition are unconstitutional. But she

relies on cases involving the encroachment upon the discretionary charging

decisions of criminal prosecutors. See State v. Rice, 174 Wn.2d 884, 896, 279

P.3d 849 (2012); State v. Agustin, 1 Wn. App. 2d 911, 921-22, 407 P.3d 1155

(2018). She advances no compelling argument that the Department’s authority

to initiate an action to terminate parental rights is “analogous to a charging

document instituting a criminal action” and that these authorities apply outside of

the context of criminal prosecutions. The mother fails to establish beyond a

reasonable doubt the unconstitutionality of any of the provisions of chapter 13.34

RCW. See In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015)

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(Statutes are presumed to be constitutional, and the burden falls to the

“challenger of a statute [to] prove beyond a reasonable doubt that the statute is

unconstitutional.”).

The juvenile court’s actions in this case were consistent with the authority

vested by the legislature. The court found K.D. dependent as to the mother in

August 2017 and held a review hearing in October 2017. At the review hearing,

the court made findings with regard to the mother’s compliance with the court’s

orders and her progress, and approved the plan to reunite K.D. with her. Shortly

thereafter, the court ordered K.D. to be placed with his mother at an inpatient

treatment facility, but then ordered K.D.’s removal again after the mother

abandoned treatment.

The court held another review hearing in January 2018 and, in accordance

with RCW 13.34.138(3)(c), changed the permanent plan for K.D. to a concurrent

plan of returning K.D. home or pursuing adoption. In April 2018, after the mother

entered FDTC and was then discharged from that program after quickly

abandoning another long-term treatment program, the court directed the

Department to file a termination petition. Four months later, the Department filed

the petition. At a review hearing in May 2018, the court changed the permanent

plan to a primary plan of adoption and alternate plan of returning home.

The decision of whether and when to file an action to terminate the parent-

child relationship under chapter 13.34 RCW is not the exclusive prerogative of

the Department. The juvenile court’s April 2018 order directing the filing of a

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termination petition is consistent with its authority under Title 13 RCW and did not

unconstitutionally encroach upon the authority of the Department.

Impartial Tribunal

The mother next claims she was deprived of her right to an impartial

tribunal because the same judge who ordered the Department to file a

termination petition in the dependency case presided over the termination fact-

finding hearing.

Due process requires “an impartial and disinterested tribunal in both civil

and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct.

1610, 64 L. Ed. 2d 182 (1980). Nevertheless, most issues of alleged bias

requiring judicial disqualification do not rise to a constitutional level. Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208

(2009) (citing Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S. Ct.

793, 92 L. Ed. 1010 (1948)). Because the states’ codes of judicial conduct may

provide more protection than due process requires, courts generally resolve most

disputes over disqualification without resort to the constitution; only rarely will due

process mandate disqualification. Caperton, 556 U.S. at 889-90. When

examining whether due process mandates disqualification, a court conducts an

objective inquiry, asking not “whether the judge is actually, subjectively biased,

but whether the average judge in [their] position is ‘likely’ to be neutral, or

whether there is an unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at

881.

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The United States Supreme Court has found an unconstitutional potential

for bias in violation of the due process clause only in specific, limited

circumstances. For instance, such circumstances may exist where a judge has

“a direct, personal, substantial pecuniary interest” in a case, Tumey v. Ohio, 273

U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927), where a judge overseeing a

criminal contempt proceeding had “previously served as grand juror in the same

case, or where the party charged with contempt ha[d] conducted ‘an insulting

attack upon the integrity of the judge carrying such potential for bias as to require

disqualification.’” Williams v. Pennsylvania, 136 S. Ct. 1899, 1912, 195 L. Ed. 2d

132 (2016) (Roberts, C.J., dissenting on other grounds) (quoting Mayberry v.

Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)).

Unconstitutional potential for bias may also exist where an individual with a stake

in a case had a significant and disproportionate role in placing a judge on the

case through the campaign process or where a judge had an earlier significant,

personal involvement as a prosecutor in a critical decision in the defendant’s

case. Caperton, 556 U.S. at 884; Williams, 136 S. Ct. at 1906.

The circumstances here do not compare to these “extreme” and

“extraordinary” scenarios that led the United States Supreme Court to conclude

that recusal was required. See Caperton, 556 U.S. at 887-88. The judge in this

case acted only in the capacity as a judicial officer. In that capacity, she entered

an order involving the mother in FDTC proceedings. Over a year later, when she

presided over the fact-finding hearing on the Department’s termination petition,

the judge promptly alerted the parties to her prior involvement. At the outset of

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the termination fact-finding hearing, the judge informed the parties that she had

presided over FDTC during the time when the mother participated, that the

mother’s name was familiar, and that she remembered no details about the

mother’s case. Neither party raised any objection or sought recusal after being

apprised of these circumstances. 4

Our decision in In re Dependency of A.E.T.H., 9 Wn. App. 2d 502, 446

P.3d 667 (2019), does not advance the mother’s claim on appeal. The juvenile

court’s impartiality was compromised in that case by the misconduct of

employees of the guardian ad litem program who were “working against” the

parents. A.E.T.H., 9 Wn. App. 2d at 517-18. This case involves no allegations of

misconduct. And the court’s order discharging the mother from the FDTC

program and directing the Department to file a petition was not “working against”

the mother. The court was simply balancing its responsibilities under the statute

to facilitate the provision of resources and assistance to the parents to enable

reunification while, at the same time, protecting the welfare of the child and

moving the case toward permanency. While the court directed the Department to

file a termination petition, efforts to provide the mother with substantial services,

including long-term inpatient substance abuse treatment, continued and the court

approved K.D.’s return home as an alternative long-term plan for him. The

4 The mother clarifies in her reply brief that the issue is not simply whether
the prior involvement of the judge created an unconstitutional risk of bias, but that
unconstitutional bias arose from the fact that “the Superior Court (as a governing
body)” adjudicated the matter after having issued an order directing the
Department to initiate the termination proceeding. But none of the cases she
relies on support her argument that the alleged “structural” flaw she describes
results in a violation of the due process right to an impartial tribunal.

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court’s order does not demonstrate or give rise to an inference of unconstitutional

bias. The mother fails to establish a violation of her due process right to an

impartial tribunal.

Services

Finally, the mother claims the evidence does not support the court’s

determination that the Department met its burden under RCW 13.34.180(1)(d)

because the Department failed to offer her a psychological evaluation.

Parents must be offered all reasonably available and necessary services

capable of correcting parental deficiencies within the near future. RCW

13.34.180(1)(d). Such services must be individually tailored to the needs of the

parent. In re Dependency of D.L.B., 188 Wn. App. 905, 920, 355 P.3d 345

(2015), aff’d, 186 Wn.2d 103, 376 P.3d 1099 (2016). But the Department need

not provide additional services where the record establishes that such provision

would be futile. In re Parental Rights to K.M.M., 186 Wn.2d 466, 480, 379 P.3d

75 (2016). Where a parent is unwilling or unable to make use of the services

already provided, offering additional services would be futile. K.M.M., 186 Wn.2d

at 483.

The mother claims that a psychological evaluation was a court-ordered

service the Department was required to provide. We disagree. No court order,

directly or impliedly, required the mother to obtain a psychological evaluation.

Based on her representation to Department employees that she completed a

psychological evaluation in 2017, the dispositional order and subsequent review

hearing orders directed the mother to “provide documentation” of the evaluation

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to the Department. Although the mother never provided documentation to the

Department, she did not change her position that she had, in fact, already

completed an evaluation and had obtained the results.

Even when a service is not court-ordered, it may still be considered a

necessary service that the Department should have brought to the attention of

the trial court prior to termination. RCW 13.34.180(1)(d); In re Dependency of

T.L.G., 126 Wn. App. 181, 200, 108 P.3d 156 (2005). The mother contends that

even if a psychological evaluation was not court-ordered, it was a necessary

service because a psychological evaluation is more extensive than a mental

health assessment, which the Department was ordered to provide. The mother

asserts that such an evaluation could have shed light on her inability to

successfully complete drug treatment and could have offered appropriate

treatment options to “overcome her pattern” of quickly withdrawing from

treatment.

But a necessary service is a service that is “‘needed to address a

condition that precludes reunification of the parent and child.’” K.M.M., 186

Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332

P.3d 500 (2014)). A psychological evaluation does not fall within this definition

because an evaluation would not have enabled reunification. The purpose would

have been to direct the mother toward appropriate treatment. The mental health

treatment that followed from the evaluation, not the evaluation itself, was the

service necessary to address a condition precluding reunification. Here, the

mother does not identify a mental health or other supportive service that would

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have been helpful that the Department failed to offer. The mother offers nothing

beyond speculation to support the claim that another psychological evaluation

would have led to different treatment recommendations. It is undisputed that the

Department offered mental health services to the mother, both in conjunction with

long-term inpatient drug treatment and independently, and that for the most part,

she failed to engage in those services. And the mother does not challenge the

court’s finding that during the dependency, she firmly expressed her view that

she “needed to focus on her drug addiction and get sober” before she would be

able to address any underlying mental health issues.

There is no evidence in the record to suggest that a psychological

evaluation, or any other available service, was capable of correcting the mother’s

parental deficiencies within the child’s foreseeable future. The foreseeable future

for K.D. was six months. Substantial evidence supports the trial court’s

determination that the Department expressly and understandably offered all

reasonably available and necessary services as required by RCW

13.34.180(1)(d).

We affirm.

WE CONCUR:

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