COURT OP
STATE OFAPPEALS
VIA DI'
2017 FEB 27
10: 36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
In the Matter of the Dependency of: ) No. 75178-6-1
) (consol. with No. 75179-4-1)
E.N.M.(DOB: 1/23/14), )
) DIVISION ONE
Minor Child. )
)
BERTRAM MACKEY, )
)
Appellant, )
)
v. )
)
STATE OF WASHINGTON, ) UNPUBLISHED
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, ) FILED: February 27, 2017
)
Respondent. )
)
Cox, J. — Bertram Mackey appeals the order terminating his parental
rights to his daughter E.M. He argues that the Department of Social and Health
Services (Department)failed to offer or provide all reasonably available services
capable of correcting his parental deficiencies within the foreseeable future.
Because substantial evidence supports the trial court's relevant findings, we
affirm.
Bertram Mackey and Andrea Thompson are the parents of E.M., who was
born on January 23, 2014. E.M. has lived in the same licensed foster care home
since birth. Mackey and Thompson, who have been homeless since E.M.'s birth,
No. 75178-6-1 (consol. with No. 75179-4-1)/2
are engaged to be married. At the time of the termination trial in March 2016,
Mackey was living in a shelter that did not permit children and had made no
meaningful progress in obtaining employment or stable housing suitable for a
child.
During a contested dependency proceeding, the trial court determined that
Thompson was incompetent and appointed a guardian ad litem to represent her
interests. The court found E.M. dependent as to Thompson, concluding that her
extreme mental illness would place E.M. in danger if she were returned to
Thompson's care.
Dr. JoAnne Solchany diagnosed Thompson with "delusional disorder" and
recommended that she engage in treatment. Thompson declined to participate
in court-ordered treatment or acknowledge her mental health issues. The court
ultimately terminated Thompson's parental rights.'
Mackey suffers from amnesia and cannot remember events occurring
before October 2012. He entered into an agreed dependency order on May 19,
2014. The dispositional order required Mackey to complete a neuropsychological
evaluation with a parenting component and provided for two supervised visits per
week with E.M.
" The court's termination of Thompson's parental rights is not at issue in this
appeal.
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Mackey participated in a neuropsychological evaluation with Dr. Paul
Connor in the fall of 2014. Dr. Connor found no evidence of a cognitive disorder
that would prevent Mackey from successfully parenting his child. Dr. Connor
recommended that Mackey participate in a psychological or psychiatric
evaluation for possible personality disorders.
Dr. Dana Harmon conducted an extensive psychological evaluation in
April and May 2015. Dr. Harmon characterized Mackey as initially extremely
suspicious and guarded to the point of appearing "on the edge of being
delusional. . . if not fully delusional." He diagnosed Mackey with "Conversion
Disorder with Mixed Symptoms," a "cluster of unusual, rare symptoms that are
often associated with emotional distress as opposed to genuine health
problems." Dr. Harmon suspected that Mackey also suffered from paranoid
personality disorder and anxiety disorder. Dr. Harmon was unable to complete
definitive diagnoses because of Mackey's memory issues and the lack of medical
records to support Mackey's self-reported medical history.
Dr. Harmon was particularly concerned about Mackey's unwillingness to
recognize or deal with his own mental health issues. Mackey lacked "intrinsic
motivation" and viewed his mental health issues "as purely medical and did not
seem open to treatment except perhaps if it was part of a process of getting his
daughter back."
Dr. Harmon also found Mackey's inability to acknowledge Thompson's
severe confusion and mental health issues to be alarming. Despite the
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overwhelming evidence, Mackey refused to acknowledge Thompson's mental
illness, ascribing it to false accusations or a conspiracy.
Although he observed no major issues during one of Mackey's visit with
E.M., Dr. Harmon concluded that Mackey was unable meet E.M.'s needs as the
primary custodian:
My judgment was that he is not able to—or at least he was not able
to at the time I worked with him given all the multiple demands of
parenting and working with people in the community and medical
providers and managing the situation with [Thompson]. It seemed
[inaudible] past what he was able to do at that point.(21
Dr. Harmon recommended that Mackey receive psychiatric treatment and
therapy, a psychiatric medication evaluation, and family therapy. He believed
that a community health center could provide such services, but suggested that
the services would be most effective if Mackey worked with a psychiatrist rather
than a master's level clinician. At the termination trial, Dr. Harmon testified that
Mackey had a poor prognosis for progress through treatment because of his lack
of insight into his own deficiencies and his inability to recognize the risk that
Thompson's mental health issues posed to E.M.'s safety.
Initially, treatment providers refused to accept Mackey because he denied
having any mental health issues. The Department eventually identified
Community Psychiatric Clinic(CPC)as a possible resource. CPC rejected
Mackey after he denied needing treatment. After the Department social worker
2 Report of Proceedings(March 23, 2016) at 259.
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intervened, however, CPC accepted Mackey. In November 2015, Mackey began
mental health therapy with Britt Alvy. Alvy, who has a master's degree in social
work, is a "licensed independent clinical social work associate" who works under
the supervision of a licensed mental health professional.
In December 2015, Mackey participated in a psychiatric evaluation with
Dr. Carrie Sylvester at CPC. Dr. Sylvester diagnosed Mackey with dissociative
amnesia and mild cognitive impairment. Dr. Sylvester determined that Mackey
did not need medication and recommended that he continue therapy with Alvy.
Alvy developed a treatment plan to assist Mackey in gaining insight into,
among other things, his mental health issues. The goals of the treatment plan
included trust- and relationship-building. By the time of the termination trial,
Mackey had completed nine therapy sessions. Alvy found that although Mackey
currently might have some understanding that others were concerned about
Thompson's delusional and extreme behavior, he did not find her behavior
concerning. Alvy was still in the initial stages of building a therapeutic
relationship with Mackey and was unable to predict how long she would need to
complete Mackey's treatment. She believed a minimum of several more months
were necessary.
Marissa Camp,the Department's social worker assigned to E.M., testified
that Thompson's untreated mental health issues impaired her ability to make safe
and appropriate decisions involving E.M.'s care. In Camp's meetings with
Mackey, he characterized Thompson's behavior as "weird," but attributed it
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primarily to stress. Mackey did not believe Thompson had mental health
deficiencies and he intended to continue his relationship with her. Camp
expressed great concern that Mackey would be unable to recognize Thompson's
unsafe behavior or to protect E.M. if necessary. Camp was unaware of any
services that could change Mackey's current views about Thompson's ability to
safely parent E.M.
Camp was also concerned about Mackey's untreated mental health issues
and parenting abilities. She stressed that Mackey could not even begin to
address his parenting skills until his mental health issues were stabilized. Dr.
Harmon's evaluation indicated that Mackey would need to have stable mental
health for at least six months before he would benefit from a parenting class or
coaching. Camp concluded that Mackey would be unable to overcome his
parental deficiencies anytime soon:
I believe that he intends to go—or he intends to remain in a
relationship with Ms. Thompson. I don't believe that that
relationship will end. I believe that that relationship in and of itself
is detrimental to [E.M.'s] health, safety, and welfare. I think he has
untreated or unmanaged mental health needs that he has little, if
any, insight into that affects his day-to-day functioning.[3]
Mackey testified that he had been in a relationship with Thompson for
three years. He maintained that he had never observed her experience
delusions, but thought it was "possible." Mackey initially testified that he would
3 Report of Proceedings (March 21, 2016) at 105.
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have no concerns about Thompson providing unsupervised care for E.M. He
later testified that he was "surprise[d]" about some of the information he learned
at trial and was beginning to understand some of the concerns that others had
about Thompson. But Mackey acknowledged that he still planned to marry
Thompson and denied that he had "mental health issues that need to be worked
on."
The evidence was undisputed that Mackey's weekly visits with E.M. were
generally appropriate, although he sometimes failed to engage with E.M. as a
parent and brought appropriate supplies and snacks only to a small percentage
of the visits. Carolyn Frimpter, E.M.'s guardian ad litem, observed no parental
deficiencies and found Mackey to be "warm and engaging with [E.M.]" Frimpter
was concerned, however, by Mackey's refusal, despite encouragement, to
exercise his right to visit E.M. twice each week. Mackey claimed that his failure
to take advantage of a second weekly visit was the result of "miscommunication."
The trial court found that the Department had satisfied its burden and
terminated Mackey's parental rights. The court found clear, cogent, and
convincing evidence that the Department had offered Mackey all necessary
services, reasonably available, capable of correcting his parental deficiencies
within the foreseeable future. In particular, the court found that Mackey's
treatment at CPC with Alvy was appropriate and as effective as possible under
the circumstances.
Mackey appeals.
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Termination of Parent-Child Relationship
"Parents have a fundamental liberty and property interest in the care and
custody of their children." Before terminating parental rights, Washington courts
must follow a two-step process. First, the Department must prove the following
six statutory requirements 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 . ..from the custody of the
parent for a period of at least six months pursuant to a finding of
dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all
necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided;
(e)That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future....
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable
and permanent home.(51
4 In re Welfare of K.J.B., No. 91921-6, slip op. at 5(2017)(citing U.S.
CONST. amends. V, XIV; WASH. CONST. art. I, § 3; Santoskv v. Kramer, 455
U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
5 RCW 13.34.180(1); see also In re Welfare of A.B., 168 Wn.2d 908, 911,
232 P.3d 1104(2010); RCW 13.34.190.
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Second, if the Department proves the six termination factors, the court
then determines, by a preponderance of the evidence, if termination is in the
child's best interests.6
When the trial court has weighed the evidence, our review is limited to
determining whether substantial evidence supports the court's findings of fact
and whether those findings support the court's conclusions of law.7 Clear, cogent
and convincing evidence exists when the evidence shows the ultimate fact at
issue to be highly probable.8
RCW 13.34.180(1)(d)
On appeal, Mackey challenges only the trial court's finding under RCW
13.34.180(1)(d) that the Department offered or provided all reasonably available
services capable of correcting his parental deficiencies. He argues that the
court-ordered treatment provided through CPC was inadequate because the
therapist had only a master's degree.
Mackey's arguments rely primarily on the testimony of Dr. Harmon, who
evaluated Mackey in April and May 2015. During his trial testimony, Dr. Harmon
expressed a "concern" about the training and skill of "people in places like CPC"
to treat severe mental illness. He explained that "my sense is that Mr. Mackey
6 RCW 13.34.190(1)(iv)(b).
7 In re Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990).
8 In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132(1995).
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perhaps is beyond the skill level of most of the clinicians at a place like CPC" and
that he would have more confidence in the judgment of a psychiatrist.
Mackey maintains that had the Department provided mental health
services by a "qualified professional," he would likely have gained insight into the
consequences of Thompson's mental illness and into his own mental health
issues. Such insight, in turn, would have been a major factor in correcting his
parental deficiencies.
But Dr. Harmon's trial testimony must be viewed in context. His general
comment about having more confidence in the judgment of a psychiatrist was
made during cross examination after hearing that the CPC therapist had not
made a particular diagnosis. Dr. Harmon acknowledged that a community-based
facility could provide appropriate treatment for Mackey. Dr. Harmon did not
review Alvy's qualifications or her specific treatment goals and the therapy that
she was providing to Mackey. Nor did he criticize Mackey's treatment at CPC as
inadequate or identify any specific alternative treatment capable of rectifying
Mackey's parental deficiencies within the foreseeable future. Dr. Harmon
acknowledged that Mackey's prognosis for treatment was poor.
Moreover, consistent with Dr. Harmon's evaluation, Dr. Sylvester, a
psychiatrist, conducted a psychiatric and medication evaluation at CPC in
December 2015. She diagnosed Mackey with dissociative amnesia and
determined that he did not need psychiatric medication. Based on her
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evaluation, Dr. Sylvester recommended that Mackey continue his therapy with
Alvy.
Mackey asserts that Dr. Sylvester's evaluation is not persuasive because
she spent only a few hours with him and did not testify to explain the basis for her
diagnosis. But these contentions involve credibility determinations that this court
cannot review. An appellate court defers to the trier of fact on issues of
conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence.' 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."10
Despite overwhelming evidence and the Department's ongoing efforts,
Mackey steadfastly refused to acknowledge the parental risks associated with
Thompson's mental illness or his own mental health issues." Substantial
evidence supported the trial court's findings that Alvy's treatment was as effective
as possible under the circumstances and that the Department provided all
9 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990).
10 In re Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).
11 See In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275
(2001)("When a parent is unwilling or unable to make use of the services
provided,[the Department] is not required to offer still other services that might
have been helpful.").
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necessary services capable of correcting Mackey's parental deficiencies within
the foreseeable future.
We affirm the order terminating Mackey's parental rights.
WE CONCUR: