In re the Welfare of J.B.

FILED

MAR 28, 2013

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

INRE THE WELFARE OF: ) No. 30039-1-111
) (Consolidated with
J.B., S.S., and J.S. ) Nos. 30040-4-111, 30041-2-111)
)
STATE OF WASHINGTON, )
)
Respondent, )
) UNPUBLISHED OPINION
v. )
)
J.S., )
)
Appellant. )

KORSMO, C. J. - The trial court entered a finding in this parental termination

action that necessary psychological services were not offered, but excused the failure due

to futility. We affirm the trial court, but in light of subsequent developments, we remand

this matter for any further proceedings the trial court deems necessary.
Nos. 30039-l-III, 30040-4-III, 3004l-2-III
In re Welfare of lB., S.S., and lS.

FACTS

Ms. J .S.l (Ms. S), the appellant, is the mother of three children: daughter lS. (born

2005); son S.S. (born 2007); and son lB. (born 2009). Her late husband is the father of

lS. and S.S., while lB. is the son of A.B., a man Ms. S started dating in early 2009.

Shortly after lB. was born, A.B. took a job in Spokane and decided to live with Ms. S

and her children. The group moved to Spokane from Idaho. Two weeks later Spokane

police twice responded to reports of domestic disputes between Ms. S and A.B. Both

adults were reported to be under the influence of intoxicants.

The children were removed from the home due to extreme chaos and placed in

shelter care; Ms. S and A.B. separated and she returned to Idaho. A dependency petition

was filed November 19,2009, and an order of dependency entered February 24, 2010.

The children eventually were placed with Ms. S's mother in Idaho.

Periodic reviews throughout the 2010 calendar year showed that Ms. S had not

been compliant with ordered treatment. A hearing order from January 12, 2011, showed

that Ms. S needed to: (1) undergo a 26-week anger management treatment; (2) comply

with recommendations from a psychological evaluation; (3) undergo random drug

testing; (4) engage in individual counseling; (5) engage in intensive out-patient chemical

dependency treatment; and (6) comply with parenting assessment recommendations.

1 We will use appellant's initials in order to protect the privacy of her children.
2
Nos. 30039-1-III, 30040-4-III, 30041-2-III
In re Welfare of J.B., S.S., and J.S.

After a lifetime of trauma, Ms. S was found by her evaluator to have major depressive

disorder, post traumatic stress disorder, marijuana and alcohol abuse in early full

remission, possible opiate abuse, a not otherwise specified personality disorder, and

mental strain resulting from numerous pressure sources. A parenting assessment found

Ms. S had parenting skills, but was unable to consistently utilize them due to her own

problems.

An evaluation calling for in-patient chemical dependency treatment was made

known to Washington's Department of Social and Health Services (DSHS) in April 2010.

Ms. S was on probation in Idaho due to 2008 controlled substances (marijuana) and

driving while under the influence (DUI) convictions. She was jailed in Idaho for most of

May 2010 due to a positive drug test for methadone use. Late in 20 10 she was arrested in

Idaho for another DUI, which constituted a violation of the terms of her probation. She

was jailed from October 2, 2010, through February 18, 2011, when the Idaho court

transferred her to an in-patient dependency treatment facility. She remained in that

facility until June 2011.

Meanwhile, DSHS filed a petition to terminate her parental rights in early

November 2010. 2 About a week before the termination trial, counsel for Ms. S moved

2DSHS also moved to terminate A.B.'s parental rights. After trial resulted in a
termination ruling, the trial court later reversed itself and granted a new trial due to an
invalid waiver of counsel. The results of the new trial are not revealed in this record, but
3
Nos. 30039-1-111, 30040-4-111,30041-2-111
In re Welfare of J.B., S.S., and J.S.

for a continuance of the trial due to Ms. S's progress in treatment. Counsel sought a

continuance until June when her program would be completed. The trial court denied the

continuance request.

At the conclusion of a four-day trial, the trial judge made extensive oral findings

that later were reduced to writing. The court found that DSHS had not provided mental

health services. Nonetheless, the court concluded that all of the statutory factors had

been satisfied and that tennination was in the best interests of the children. Upon entry of

the written ruling, both parents appealed to this court. 3

While the appeals were pending, our commissioner granted Ms. S's motion to

supplement the record and permitted DSHS to respond with additional evidence of its

own concerning the children's current status. Ms. S presented evidence that she

successfully completed treatment, was discharged from her probation, and was working

as a manager at a Subway restaurant in Idaho. DSHS presented evidence that the

children had been adopted by their grandmother, had bonded with her, and were

perfonning at appropriate grade level in school.

in light ofa subsequent adoption, A.B.'s parental rights likely were tenninated. His case
is not before this court.
3 The father's appeal was dismissed as moot when the trial court granted him a
new trial. See footnote 2. The children's grandmother (now adoptive mother) also
moved to intervene in the appeal. We conclude that she has not shown that her interests
4
Nos. 30039·1·111, 30040·4-III, 30041-2-III
In re Welfare of J.B., S.S., and l.S.

ANALYSIS

Ms. S challenges the trial court's determination that the State met its burden of

proof on three of the statutory factors, the determination that termination was in the best

interests of the children, and the court's refusal to grant a continuance to learn the results

of the dependency treatment program. DSHS challenges the court's finding that it did

not provide all necessary services.

The termination of parental rights statute provides a two-step process: the first step

focuses on the adequacy of the parents, which must be proven by clear, cogent, and

convincing evidence, and the second step focuses on the child's best interests, which

need only be proven by a preponderance of the evidence; only if the first step is satisfied

may the court reach the second. In re Welfare ofA.B., 168 Wn.2d 908, 911,232 P.3d

1104 (20 I 0). When assessing the adequacy of the parents, RCW 13.34.180(1) lists six

elements that the State must prove. Of those elements, three are contested by Ms. S: that

the State provided all necessary services, that there is little likelihood that conditions will

be remedied in the near future, and that continuation of the parent and child relationship

were disparate enough from those of DSHS to justity intervention in this court, although
she is free to renew her request with the trial court upon remand.

5
Nos. 30039-I-III, 30040-4-III, 30041-2-III
In re Welfare of lB., S.S., and lS.

clearly diminishes the child's prospects for early integration into a stable and pennanent

home. RCW 13.34.l80(1)(d), (e), and (t).4

This court reviews factual findings for substantial evidence. In re Dependency of

A. VD., 62 Wn. App. 562,568,815 P.2d 277 (1991). The findings required by RCW

13034.180(1) to terminate a parent-child relationship must be established by "clear,

cogent, and convincing evidence." RCW 13.34.190(1)(a)(i). Where a party is required to

establish its case by "clear, cogent, and convincing evidence," this court incorporates that

standard of proof into its review. In re Trust & Estate ofMelter, 167 Wn. App. 285, 301,

273 PJd 991 (2012). Thus:

When such a finding is appealed, the question to be resolved is not merely
whether there is substantial evidence to support it but whether there is
substantial evidence in light of the "highly probable" test. In re Welfare of
Sego, 82 Wn.2d 736,739,513 P.2d 831 (1973); [In re Reilly's Estate], 78
Wn.2d [623,] 640[, 479 P.2d I (1970)] (recognizing that "[e]vidence which
is 'substantial' to support a preponderance may not be sufficient to support
the clear, cogent, and convincing" standard). We still view the evidence
and all reasonable inferences in the light most favorable to the prevailing
party, Woodyv. Stapp, 146 Wn. App. 16,22,189 Po3d 807 (2008) and, as
in all matters, defer to the trier of fact on issues of credibility. In re Welfare
ofL.NB.-L., 157 Wn. App. 215, 243, 237 Po3d 944 (2010).

Id.

With these basic principles in mind, we tum to the challenges raised by Ms. S.

4 The uncontested elements are (1) the children have been found "dependent"; (2)
a dispositional order was entered under RCW 13.34.130; and (3) the children have been
removed from the home for at least six months. RCW I 3.34.1 80(1)(a), (b), and (c).
6
Nos. 30039-1-111, 30040-4-111, 30041-2-111
In re Welfare of lB., S.S., and J.S.

Provision ofServices

RCW 13.34 .180( 1)(d) requires that the State prove that "all necessary services,

reasonably available, capable of correcting the parental deficiencies within the

foreseeable future have been expressly and understandably offered or provided." Ms. S

strenuously challenges the trial court's determination that this factor was satisfied,

particularly in light of the court's finding that some required services were not offered.

DSHS argues that the record supports the court's determination despite the finding that

the department failed to "provide a mental health referral, or psychiatric treatment and

medication management to the mother.,,5

Ms. S expressly assigns error to finding V to the extent it determines that DSHS

had offered all necessary services, pointing to the internal inconsistency with the first

sentence (partially quoted above) of finding V.II. We agree that the record supports the

trial court's finding that DSHS did not provide a mental health referral or treatment, nor

did it arrange for medication management. The parties agree that Dr. Scott Mabee

recommended that Ms. S see a psychiatrist to determine what medications she needed.

This was never done; a DSHS social worker testified that she did not believe it was

necessary in light of the fact that a medical doctor was treating Ms. S with CymbaIta. Dr.

Mabee testified that Cymbalta was ineffective in view of Ms. S's other problems. This

5 Finding V.ll(first sentence); Clerk's Papers (CP) at 130.

7

Nos. 30039-I-III, 30040-4-III, 30041-2-III
In re Welfare of J.B., S.S., and l.S.

evidence was critical because Ms. S was required by the terms of the dependency order to

comply with the recommendations of her psychological evaluation, a ruling that therefore

required DSHS to offer or provide that service. Based on this evidence, the trial court's

finding that DSHS did not provide for medication management is supported by the

record.

Ms. S also argues that DSHS was required to offer in-patient dependency

treatment because her out-patient treatment program recommended it. However, the

court's dependency orders only required that Ms. S attend intensive out-patient drug

treatment, which she did until her funding ran out. Soon thereafter she was jailed when

urinalysis testing showed that she had used methadone. After she was released from

custody for that violation, there was a four-month period before she was jailed for her

second DUL During this time DSHS arguably could have done more to offer additional

dependency treatment services; the only efforts made were an attempt to qualify Ms. S's

Idaho treatment provider as an approved facility for reimbursement by Washington. The

trial court ultimately concluded that Ms. S's continued substance abuse during her

treatment rendered additional efforts on her behalf futile. Based on this record, we

cannot disagree.

The remaining question is whether the court's determination that all necessary

services were provided is supported by clear, cogent, and convincing evidence,

8

Nos. 30039-1-III, 30040-4-III, 30041-2-III
In re Welfare of lB., S.S., and 1.S.

particularly in light of the ruling that necessary mental health resources were not

provided. Finding of fact V.11 reads in its entirety:

The Department did not, however, provide a mental health referral, or
psychiatric treatment and medication management to the mother, which
was a clear recommendation from her psychological evaluation. These
services were available at certain periods of time through the Idaho system,
but the Court must find that that mental health treatment component was
not offered by [Department of Child and Family Services]. Nevertheless,
throughout the dependency the mother's continued chemical use and abuse
and involvement with the criminal justice system prevented any responsible
follow-through, with or without mental health medication management.
While the recommendation for medication management was not recognized
and offered by the department, the absence of that service did not materially
alter the results in this case. During periods of availability of Idaho mental
health services, the mother's abuse remained unabated.

CP at 130.

The failure to offer necessary services is excusable if the effort would be futile. In

re Welfare ofMR.H., 145 Wn. App. 10,25,188 P.3d 510 (2008). Without using that

particular word, the trial court essentially used that philosophy. Although DSHS erred,

the error was "harmless" under these facts. 6

The mental health problems afflicting Ms. S had been long standing, having roots

in her youth. Treatment had been attempted before the dependency action, including

involuntary commitment after her husband's death by apparent suicide. Despite the

6 While we analogize to "harmless error," we do not use that phrase in its technical
meaning.

9

Nos. 30039-1-111, 30040-4-111,30041-2-111
In re Welfare of lB., S.S., and J.S.

current on-going out-patient drug treatment, Ms. S was continuing to abuse substances

and going to jail for doing so. In view of all of these circumstances, the trial court

correctly concluded that the failure to timely offer psychological services did not

ultimately change the situation. While psychological treatment was necessary, it was not

a magic bullet that was going to immediately cure Ms. S in the midst of her substance

abuse, nor was it going to keep her out ofjail. Her longstanding problems were not going

to go away immediately, and the department's failure to act more aggressively during the

brief window it had during 2010 did not change that fact.

Although the department did not do all that it could have done to offer

psychological treatment, the trial court still found that DSHS had met its burden of

proving that it offered all necessary services. This is a close call, but we do not believe

that the trial court erred in concluding that the failure to act more aggressively during the

four-month window when Ms. S was not in jail did not affect the outcome. She was

given the necessary service of drug dependency treatment and it was not taking. She was

jailed for more drug use and eventually incarcerated for a much lengthier term due to

continued alcohol abuse. Whether or not she was receiving treatment for her mental

health issues, she would still have been jailed for the drug dependency failings and, thus,

remained unable to parent her children.

We uphold the trial judge's determination that this factor was proved.

10

Nos. 30039-l-III, 30040-4-III, 3004l-2-III
In re Welfare of lB., S.S., and 1.S.

Problems Remediable in the Near Future

RCW 13.34.180(1 )(e) requires proof that the parent's problems cannot be

remedied sufficiently to allow the child to return to the parent in the near future. Ms. S

argues that because of the failure to provide mental health services, DSHS cannot

establish this factor. In tum, respondent argues that the record supports the trial court's

determination. While this factor, too, is impacted by the failure to provide mental health

services, we believe the evidence supports the trial court's ruling.

What constitutes "the near future" depends upon the child's age and placement

circumstances. In re Welfare o/CB., 134 Wn. App. 942, 954, 143 P.3d 846 (2006). The

"near future" is a short period of time for a child in foster care in need of a pennanent

placement. Id. For a younger child, a shorter period constitutes the "near future" than it

does for an older child. Id.; In re Dependency o/P.D., 58 Wn. App. 18,27, 792 P.2d 159

(1990) (six months not near future for l5-month-old).

At the time of trial, lS. was nearly 6, S.S. was just over 3 Y2 years old, and lB.

was nearly 18 months. For the last 16 months, the two older children had been in the care

of their grandmother, and the younger child had been in her care for only a slightly

shorter period. Their ages all put this matter on the shorter end of the "near future"

spectrum. However, all had been together in their grandmother's care for an extended

11

Nos. 30039-I-III, 30040-4-III, 30041-2-III
In re Welfare of J.B., S.S., and J.S.

time rather than in foster care or other short-term care. This fact suggests that the "near

future" was somewhat less of an immediate concern.

When assessing this factor at trial, the trial court placed great emphasis on the

uncertain future Ms. S faced. 7 By the time of trial, she had been in custody and then at

in-patient drug rehabilitation for nearly seven months. Her Idaho probation officer

testified that she had two months remaining in her in-patient treatment, and then she

would face an Idaho judge. The probation officer was recommending that her probation

be revoked and that she serve two years in custody.

The court also focused on the fact that Ms. S had long-term mental health and drug

dependency issues that would not be cured in the short term. The court noted that it was

taking all of her energies to address those issues, so Ms. S simply could not "provide a

stable, reliable, healthy environment for her children while she is battling her mental

health and chemical dependency challenges." Finding V1.3; CP at 133.

Given the very real possibility that Ms. S would be incarcerated for another two

years, along with the ongoing dependency and mental health problems, the evidence

supported the court's determination that this factor was satisfied. There was "little

likelihood" that conditions would change to the point where the children could be

7 The trial court did not rely upon Ms. S's mental health problems because of the
failure to refer her to treatment for those problems.

12

Nos. 30039-I-III, 30040-4-III, 30041-2-III
In re Welfare of lB., S.S., and J.S.

returned to Ms. S "in the near future." RCW 13.34. 180(1)(e). The trial court's

determination was supported by clear, cogent, and convincing evidence.

Integration into a Stable Home

The final challenged statutory factor is RCW 13.34.180(1 )(f), which requires the

State to prove that the "continuation of the parent and child relationship clearly

diminishes the child's prospects for early integration into a stable and permanent home."

This factor was the focus of a recent Washington Supreme Court decision, In re

Dependency ofK.D.S., No. 86124-2 (Wash. filed Feb. 14,2013).

There the court rejected the argument that when the State proves factor (1)(e), that

there is little likelihood the parent's conditions would change in the "near future," it also

automatically proves factor (1)(f). Dependency ofK.D.S., slip op. at 13. The court noted

that the evidence necessary to prove the two factors would often overlap, so that evidence

which established one factor could also establish the other factor. Id. at 13-14. However,

evidence establishing one factor does not necessarily prove the other. Id. at 14.

In its analysis of this factor, the trial court focused on the fact that the children had

not been in Ms. S's care since November 2009, and that the impermanence of their

situation prevented the stability the children needed. Finding VIII; CP at 133. Given the

passage of 16 months since Ms. S had lived with them, the evidence sufficiently

supported the trial court's determination. The children had been living with their

13

Nos. 30039-1-111, 30040-4-111,30041-2-111
In re Welfare of lB., S.S., and lS.

grandmother nearly the entire period since they had been taken from Ms. S. Their chance

to find a permanent home depended upon timely resolution of her parental status.

We conclude that the evidence supported the determination that this factor had

been satisfied.

Fitness to Parent

The trial court also determined that the State had established a non-statutory

element-the parent's current unfitness to parent the children. This finding is required by

constitutional due process concerns. Welfare ofA.B., 168 Wn.2d at 920. However, the

finding can be implicit rather than explicit. Id. at 921; In re Dependency ofK.R., 128

Wn.2d 129, 141-42,904 P.2d 1132 (1995).

The trial court made an explicit finding that Ms. S was not currently fit to parent

her children. Finding VII; CP at 133. The court expressly noted that she had not made

sufficient progress in addressing her mental health and drug dependency problems, and

also was in custody in Idaho with an uncertain release date. Id. Again, the record

supports these determinations. Although DSHS was complicit in Ms. S's failure to

address her mental health needs, that fact does not detract from the overall finding that

there had been little progress to date. Ms. S continued to suffer from drug dependency

and was in custody as a result. She was not currently ready to resume parenting her

children.

14
Nos. 30039-l-III, 30040-4-III, 3004l-2-III
In re Welfare of J.B., S.S., and 1.S.

The record supports the trial court's express finding that Ms. S was not currently a

fit parent.

Best Interests ofthe Children

Having found that the State had established the six elements relating to Ms. S's

fitness as a parent, the trial court then found that it was in the best interests of the children

to terminate their relationship with Ms. S. RCW 13.34.l90(l)(b). This court reviews

whether the determination is supported by a preponderance of the evidence. Welfare of

A.B., 168 Wn.2d at 911. Ms. S contests this determination, but we again believe that the

evidence supports the court's ruling.

The trial court found that the children needed parents who were "fully engaged

and attuned to their needs and they needed them yesterday." Finding IX; CP at 134.

Unless they had "firm structure and stability," the children were "at risk of developing

long term emotional and physical inadequacies." Id.

No explicit factors guide a trial court's determination in this area as each case is

different. However, earlier decisions do inform our review. It is proper to consider the

bonds and attachments that the children had formed with their caregivers and the

potential for significant instability that would result after several years without custody.

Dependency ofA. V.D., 62 Wn. App. at 572. Furthermore, Ms. S's being in the custody

of the State of Idaho at the time of trial was also a permissible factor, just as long as it

15

Nos. 30039-1-III, 30040-4-III, 30041-2-III
In re Welfare of lB., S.S., and J.S.

was not the sole factor. In re Dependency ofJ. W., 90 Wn. App. 417, 432, 953 P.2d 104

(1998).

In A. V.D., the trial court found that it was in the child's best interests to maintain

contact with her father because the two had a good bond, but that it was also in the

child's best interests to terminate the parenting relationship so that the child could be

adopted into the stability of a permanent home provided by her grandparents. 62 Wn.

App. at 571-72. This court affirmed that decision because in spite of the positive parental

relationship, it was not in the child's best interests to have to wait in limbo for her father

to finish becoming fit. Id.

That is essentially the same issue here. Ms. S could be a good parent. However,

she was not fit to be a parent at the time of trial and had some ways to go to rectity the

situation, if she ever could. Her future also was uncertain. The children had already

established a strong bond with their grandmother throughout the dependency, and the

older children had even started on that bond for a few months in early 2008 while Ms. S

was receiving involuntary treatment following her husband's death. lB. had never

known his mother and the older children had been out of her care for 16 months.

Although it mayor may not be in the children's best interests to still have some contact

with Ms. S, it is more in their best interest to have permanency in the home of their

adoptive parentigrandmother.

16
Nos. 30039-I-III, 30040-4-III, 30041-2-III
In re Welfare of lB., S.S., and lS.

The trial court did not err in concluding that the best interests of the children

required termination of Ms. S's parental relationship. They needed stability rather than

uncertainty about the future.

Continuance Request

Ms. S also argues that the trial court violated her due process rights in denying her

continuance request. The essence of her claim is that if the trial court had waited two

more months, she would have shown completion of her in-patient treatment and the

subsequent successful conclusion of her Idaho criminal case. While we are skeptical that

this argument presents a true due process claim, we do not further address it in light of

our decision to remand the matter to the trial court.

RAP 12.2 provides in part that in deciding a case, this court may "take any other

action as the merits of the case and the interest ofjustice may require." This court, after

the briefing in this case, accepted new evidence from both sides. The mother presented

evidence that she had completed drug treatment, was released from custody, and had

found stable employment. The children, meanwhile, had bonded with their grandmother

and been adopted by her.

This evidence has never been provided to the trial court. The mother's

information arguably could have been presented in either a timely motion for

reconsideration or as the basis for seeking to set aside the judgment. CR 59; CR 60. In

17

Nos. 30039-l-III, 30040-4-III, 3004l-2-III
In re Welfare of lB., S.S., and J.S.·

the interest ofjustice, we think it should have been presented to the trial court and take

this opportunity to do so now.

Events occurring after trial could have an impact in many cases, but our interest in

finality ofjudgments and the prevention of on-going and open-ended trials means that

only in limited circumstances should trial courts consider posttrial developments in

setting aside a final judgment. See CR 60. Because of the trial court's finding that DSHS

did not provide adequate psychological services and the uncertainty facing Ms. S due to

the pending probation revocation, we think this might be one of those rare circumstances.

The failure to provide psychological services may have been less of a "harmless error" in

light of Ms. S's apparent success in addressing her dependency issues than the trial court

originally thought. Or it may not. Similarly, the abrupt end to Ms. S's Idaho criminal

conviction difficulties might have been significant evidence in the trial judge's

consideration of her current fitness to be a parent and whether there was a likelihood she

might be able to parent them in the near future. Or not.

Appellate courts do not find facts. Thorndike v. Hesperian Orchards, Inc., 54

Wn.2d 570, 575,343 P.2d 183 (1959). We similarly do not substitute our judgment for

that of the trier of fact. Id. Whether the facts are as the parties allege is for the trial judge

to determine, not this court. Id. Whether those facts are still the same as when they were

brought to our attention a year ago is still another matter. Thus, because those alleged

18

Nos. 30039-1-111, 30040-4-111, 30041-2-111
In re Welfare of J.B., S.S., and J.S.

facts could have impacted the outcome of the trial here, we remand for the trial court to

consider them.

Our remand should not suggest any particular result. The trial judge has complete

discretion, as in a reconsideration motion, on the proceedings to follow. It can accept

written or testimonial evidence, or none at all. It can hold a hearing or decline to do so.

It decides whether to give any weight to any evidence it considers. Even if it takes

evidence and enters findings of fact favorable to Ms. S, it might still decline to set aside

its judgment. A significant period of time has passed since the trial of this case and it

may simply be too late to modify the decision without doing significant damage to the

children. That calculation is left to the considered discretion of the trial judge who hears

this reconsideration argument. Or it may be that Ms. S no longer desires to pursue this

matter in the best interests of her children. These are all matters left to the considered

discretion of the trial judge. She has an opportunity to reconsider this case, but has no

obligation to do anything other than to advise the parties of what action is being taken.

CONCLUSION

The trial court made very thorough and thoughtful findings of fact in both oral and

written form. We uphold those findings in this appeal. We affirm the court's judgment

that the State had proved all of the factors set forth in RCW 13.34.180(1) by clear,

cogent, and convincing evidence. We likewise affirm the determinations that Ms. S was

19

Nos. 30039-1-III, 30040-4-III, 30041-2-III
In re Welfare of lB., 8.8., and l8.

not then fit to parent and that the termination of the parent-child relationship was in the

best interests of the children.

The judgment is affirmed. The case is remanded for any further proceedings the

trial court believes are proper in accordance with this opinion.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Korsmo, C.J.

WE CONCUR:

20