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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of          )       No. 67537-1-I
A.M.H., dob 9/22/04, and                    )
A.D.H., dob 10/5/05,                        )       (Consolidated with No. 67538-9-I)
                                            )
                      Minor children,       )       DIVISION ONE
                                            )
STATE OF WASHINGTON,                        )
DEPARTMENT OF SOCIAL                        )
AND HEALTH SERVICES,                        )       UNPUBLISHED OPINION
                                            )
                      Respondent,           )
                                            )
               v.                           )
                                            )
L.H.,                                       )
                                            )
                      Appellant.            )       FILED:  June 4, 2012

       Schindler, J.  --  L.H. appeals the trial court's order terminating parental rights to

her two children, A.M.H. and A.D.H.  L.H. argues that the Department of Social and 

Health Services (DSHS) failed to offer or provide the necessary services capable of 
correcting her parental deficiencies.1 Because substantial evidence supports the 

       1 For the first time on appeal, L.H. also claims that the failure to appoint counsel to represent 
A.M.H. and A.D.H. violated due process.  In In re Dependency of M.S.R., ___ Wn.2d ___, 271 P.3d 234 
(2012), our supreme court held that the superior court has the discretion to appoint counsel where 
necessary, and that under the constitution, the statute RCW 13.34.100(6), and court rules, the "right to 
appointment of counsel is not universal," and the decision as to whether to appoint counsel is to be 
decided on a case-by-case basis.  M.S.R., 271 P.3d at 245-46.  Because L.H. did not ask the trial court 
to appoint an attorney to represent A.M.H. and A.D.H., we decline to consider this issue for the first time 
on appeal.  RAP 2.5(a). 

No. 67537-1-I (Consol. with No. 67538-9-I)/2

termination order, we affirm.

                                            FACTS

       L.H. is the mother and M.H. is the father of A.M.H., born on September 22, 2004,

and A.D.H., born on October 5, 2005.  The parents have an extensive history of drug 

and alcohol abuse and domestic violence.  The father was first arrested for domestic 

violence against the mother in May of 2002.  Since then, "numerous police reports . . . 

document high levels of conflict and no contact order violations." L.H. has sustained 

multiple broken ribs and head injuries.  A.M.H. and A.D.H. were exposed to the 

domestic violence between L.H. and M.H.

       In 2007, Dr. William McKee diagnosed L.H. with post traumatic stress disorder

(PTSD), major depression, panic disorder, and alcohol dependency.  In December 

2007, L.H. completed a substance abuse evaluation. L.H. reported an extremely high 

tolerance for prescription pain medication.  The evaluation concluded the mother was 

drug dependent and recommended a two-year intensive outpatient program.  In 2009, 

L.H. started using methamphetamine.  

       On June 20, 2009, L.H. used a baseball bat to destroy furniture in the family 

home and smash M.H.'s car.  When police arrived, L.H. was rocking back and forth and

mumbling to herself.  The father said that L.H. threatened to harm him and the children.  

L.H. was charged with domestic violence malicious mischief in the first degree.  A no-

contact order prohibited L.H. from contacting M.H. until July 2012.  L.H. violated this 

order immediately upon her release.

       On August 6, 2009, Child Protective Services removed A.M.H and A.D.H. from 

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No. 67537-1-I (Consol. with No. 67538-9-I)/3

the home and placed the children in foster care.  The children displayed significant 

mental health, emotional, and behavioral problems, including threats and acts of 

violence.  Four-year-old A.M.H. called the social worker a number of offensive names 

and attempted to push her down a flight of stairs.  A.M.H. threatened to kill a day care 

provider by breaking her legs with a baseball bat, then pouring gasoline in her mouth 

and lighting a match.  A.M.H. was diagnosed with PTSD, separation anxiety, and 

aggression.  Three-year-old A.D.H. was diagnosed with PTSD and engaged in 

inappropriate sexual touching. Both children required services which led to 

improvement in their behavior. The foster parents said that A.M.H. and A.D.H. were not 

toilet trained and required constant supervision and redirection.

       On October 28, 2009, the court entered an agreed order of dependency.  The 

court found A.M.H. and A.D.H. had no parent, guardian, or custodian capable of 

adequately caring for the child, such that the child is in circumstances which constitute 

a danger of substantial damage to the child's psychological or physical development

under RCW 13.34.030(5)(c).  

       The court found that L.H. and M.H. had an extensive history of domestic 

violence and numerous violations of no contact orders.  The court found that the 

mother had significant mental health issues, including major depression, PTSD, panic 

disorder, and alcohol dependency.  The court also found that L.H. had a history of 

substance abuse, including methamphetamine use, alcohol dependence, and high 

tolerance to prescription drugs.  

       The court ordered L.H. to obtain an updated drug and alcohol evaluation and

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No. 67537-1-I (Consol. with No. 67538-9-I)/4

psychological evaluation with a parenting component, and participate in individual 

mental health counseling and parenting classes.

       In November, DSHS social worker Bonnie Johannes sent L.H. a list of referrals 

for the court-ordered services, including a referral for a domestic violence assessment 

at Morgan Counseling.  

       In December, social worker Anne Sacquitne provided L.H. with referrals for the 

psychological evaluation, updated drug and alcohol evaluation, mental health 

counseling, and parenting classes.  Sacquitne again provided L.H. with a referral to 

Morgan Counseling for a domestic violence assessment.  L.H. told Sacquitne she was 

engaged in the program at the Domestic Abuse Women's Network (DAWN) and was 

attending a domestic violence support group on Tuesday nights, and another domestic 

violence support group in Wenatchee on Friday nights.  

       In April 2010, L.H. completed a combined mental health, drug, and alcohol 

evaluation with Robert Ewanio at Coastal Treatment Services Inc. Ewanio concluded 

that L.H. needed treatment for alcohol and drug dependence, bipolar disorder, PTSD, 

and possible borderline personality disorder.  Ewanio recommended weekly individual 

counseling sessions for at least a year.  In addition, Ewanio recommended 

psychotherapy with a therapist specializing in dependence on prescription medication

and other mental health issues.  L.H. entered the outpatient treatment program at 

Coastal to address her mental health and chemical dependency issues.  

       After cancelling a number of appointments, L.H. completed a psychological 

evaluation with a parenting component with Dr. Ellen McAtee in May.  Dr. McAtee 

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diagnosed L.H. with drug and alcohol dependence, as well as PTSD.  Dr. McAtee also 

diagnosed L.H. with dependent personality disorder with self-defeating personality 

traits, and borderline personality traits.  Dr. McAtee noted in her report that L.H. refused 

to release the results of the substance abuse evaluation.  Dr. McAtee found that L.H.'s 

"problems with substance abuse in addition to her psychological problems, including 

her need to be dependent on a man who was abusive to her, as well as her physical 

aggressiveness toward him, raises serious concern about her ability to parent her 

children."

       Dr. McAtee recommended inpatient chemical dependency treatment, followed by 

intensive outpatient treatment for one to two years.  Dr. McAtee also recommended 

long-term psychotherapy once or twice per week for a minimum of two years "to deal 

with the issues of dependency, self-centeredness, victimization, and the other problems 

that exist for her." Dr. McAtee concluded that L.H. should not attempt to work on 

parenting issues until she addressed drug dependence and mental health issues.

       Based on Dr. McAtee's recommendations, Sacquitne provided L.H. with a 

number of referrals.  L.H. told Sacquitne she was participating in domestic violence 

treatment at DAWN and Eastside Domestic Violence.  But L.H. would not sign a 

release to verify that she was engaged in these programs.  Sacquitne sent L.H. 

additional information about a free support group for parents who have been victims of 

domestic violence.  Sacquitne also referred L.H. to the Foster Care Assessment 

Program (FCAP).  FCAP referred L.H. to the Harborview Center for Sexual Assault and 

Traumatic Stress (Harborview).  

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No. 67537-1-I (Consol. with No. 67538-9-I)/6

       L.H. attended 10 counseling sessions at Coastal Treatment Services.  After 

cancelling a number of appointments and failing to comply with the requirement of 

urinalysis, L.H. stopped treatment at Coastal.  L.H. said that she was transferring to a 

different treatment program.  In August, Coastal discharged L.H. from the program, 

stating her prognosis was "[p]oor." L.H. then asked Sacquitne if she could attend 

substance abuse treatment at Recovery Centers of King County (RCKC) in Kent.  

Sacquitne said she could not refer L.H. because M.H. was engaged in treatment at 

RCKC.

       In September 2010, L.H. began trauma-focused cognitive behavioral therapy 

with social worker Shelly Griffiths at Harborview.  Griffiths focused on crisis intervention 

and helping L.H. to develop coping skills for dealing with PTSD and domestic violence.  

L.H. told Griffiths that in addition to the cognitive behavior therapy, she planned to see 

a psychiatrist she had seen in the past, "Dr. Nguyen." Throughout therapy with 

Griffiths, L.H. was in contact with M.H.  M.H. called L.H. from jail and wrote her letters.  

Griffiths informed L.H. that therapy should stop until L.H. was no longer in contact with 

her abuser.  L.H. assured Griffiths that she had stopped responding to M.H.'s attempts 

to contact her and asked to continue treatment.

       That same month, L.H. obtained a chemical dependency assessment at Sound 

Mental Health.  Mental health provider Monica Tolliver-Scott recommended inpatient 

treatment.  L.H. refused to participate in inpatient treatment and did not attend 

scheduled counseling sessions.  

       In October, Court Appointed Special Advocate (CASA) Cheryl Forbes went to 

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No. 67537-1-I (Consol. with No. 67538-9-I)/7

visit M.H. at his home.  M.H. had recently been released from jail.  Forbes found L.H. at

M.H.'s home.  L.H. was unresponsive and Forbes called for aid.  Police arrested M.H. 

for violating the no-contact order with L.H.  While M.H. was in jail, L.H. wrote him a 

letter saying she wanted to hear his voice, that she would send him money, and that 

she was trying to have the no-contact order lifted but that she did not want to see him

again. 

       Over the course of the 20-month dependency, L.H. visited A.M.H. and A.D.H. 

inconsistently, often arriving late or cancelling visits.  At times she appeared to be 

under the influence of drugs or alcohol.  On December 7, DSHS filed a petition to 

terminate the parental rights of L.H. and M.H.

       In January 2011, L.H. entered Providence Saint Peter Hospital for "detoxification 

from benzodiazepine" and was released two days later.  On January 26, L.H. entered 

inpatient treatment at Prosperity Counseling and Treatment Services Inc. L.H. denied 

using drugs but tested positive for amphetamine, methamphetamine, Oxazepam, 

hyrdrocodone, and hyrdromorphone.  L.H. left treatment two days later.  In February, 

L.H. obtained a chemical dependency assessment at New Traditions.  The assessment 

recommended inpatient treatment.  L.H. attended some outpatient sessions but refused 

inpatient treatment.

       In April, L.H. was three sessions away from completing the first portion of 

cognitive behavioral therapy treatment with Griffiths when she stopped attending 

counseling sessions. Griffiths terminated L.H. from the program in May.  Griffiths asked 

L.H. to contact her when she was ready to return to treatment. L.H. did not contact 

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No. 67537-1-I (Consol. with No. 67538-9-I)/8

Griffiths.

        The termination trial began on July 11.  The trial lasted six days. A number of 

witnesses testified, including L.H., M.H., Sacquitne, Dr. McKee, Griffiths, CASA Forbes, 

Ewanio, and care providers for A.M.H. and A.D.H.  The trial court admitted over 100 

exhibits.  

       Sacquitne testified that she was in contact with L.H. every month and believed 

L.H. was receiving domestic violence treatment. Dr. McKee testified that he urged L.H. 

to enter inpatient chemical dependency treatment and mental health therapy.  Dr. 

McKee testified that in January 2010, L.H. told him that she was participating in 

counseling for domestic violence. L.H. testified that she engaged in domestic violence 

treatment with several service providers.  "I've been to many places to get help for 

domestic violence.  I've gone to DAWN.  I've gone to East Side Domestic violence.  

And then I have been at Harborview . . . [a]nd Coastal."  

       On the third day of trial, M.H. relinquished his parental rights to the children.  

The CASA testified that throughout the dependency, she visited the children each 

month and had ongoing and frequent contact with the mother.  The CASA testified that 

the mother is not capable of providing adequate care for the children, nor will she be 

capable of doing so in the foreseeable future, and recommended termination.

       The court terminated L.H.'s parental rights to her children.  The court entered 

extensive and detailed findings of fact on the order terminating the parent-child 

relationship.  The court found that the mother was "not currently engaged in any 

services to address her parental deficits of substance abuse, untreated [PTSD], and 

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No. 67537-1-I (Consol. with No. 67538-9-I)/9

Bipolar Disorder." The court found that L.H. "was repeatedly discharged from her 

services either by her failure to accurately disclose information or because she failed to 

attend the services that were offered." The court concluded that the mother's failure to 

follow through with services for two years "demonstrates that she is not likely to follow 

through with services in the near future to address her parental deficits."  

       The court found that because the mother failed to address her significant 

chemical dependency and mental health issues, there is little likelihood that these 

conditions could be remedied within the near future of the children. The court found 

there is no dispute that L.H. is a victim of domestic violence and the "severity and 

duration of the mother's victimization is so significant that it is difficult to comprehend."  

But the court rejected the mother's claim that DSHS did not offer services to address 

her victimization. The court found that DSHS offered or provided all necessary 

services to L.H. but she failed to follow through with referrals and misrepresented her 

engagement in services.

              2.26   The mother reported that she was engaged in the 
       appropriate and offered domestic violence services at DAWN and 
       Eastside Domestic Violence.  The social worker relied upon the mother's 
       representations, which turned out to be false.
              2.27   The mother is a victim of domestic violence.  During the 
       pendency of the dependency she made very modest and inconsistent 
       effort to follow up on offered services for domestic violence victims and no 
       meaningful effort to avail herself of offered/ordered services for mental 
       health and/or substance abuse.
              . . . .
              2.63  The mother has not engaged with a psychiatrist.  The mother 
       repeatedly told providers she was aware of the need for psychiatric 
       services and had a provider she could go to.  The mother told Monica 
       Tolliver-Scott she was going to Dr. Nguyen at Valley Medical Center for 
       psychiatric intervention.  Ex. 60.  The mother also told other providers she 
       had not seen Dr. Nguyen while the dependency was pending.  

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No. 67537-1-I (Consol. with No. 67538-9-I)/10

       The court concluded DSHS established the statutory requirements to terminate 

parental rights by clear, cogent, and convincing evidence, and that termination was in 

the best interest of the children.  

                                          ANALYSIS

Standard of Review

       In order to terminate parental rights, the six statutory elements set forth in RCW 

13.34.180(1) must be established by clear, cogent, and convincing evidence.

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No. 67537-1-I (Consol. with No. 67538-9-I)/11

       RCW 13.34.180(1) sets forth the six elements:

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

       Evidence is clear, cogent, and convincing "when the ultimate fact in issue is 

shown by the evidence to be 'highly probable.' " In re Dependency of K.R., 128 Wn.2d 
129, 141, 904 P.2d 1132 (1995)2 (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 

513 P.2d 831 (1973)). Where the needs of the child and the rights of the parent 

conflict, the needs of the child must prevail.  In re Dependency of J.W., 90 Wn. App. 

417, 427, 953 P.2d 104 (1998).

       If DSHS establishes the statutory elements of RCW 13.34.180(1), the court must 

then consider whether termination of the parent-child relationship is in the best 

interests of the child.  RCW 13.34.190(1)(b). Whether termination is in the best 

interests of the child must be proved by a preponderance of the evidence and 

       2 (Internal quotation marks and citation omitted.)

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No. 67537-1-I (Consol. with No. 67538-9-I)/12

determined based on the facts of each case. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 

611 P.2d 1245 (1980).  Unchallenged findings are verities on appeal.  In re Interest of 

J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).

       The deference paid to the trial court's advantage of having the witnesses before 

it is particularly important in a parental termination proceeding.  Consequently, this 

court will not weigh the evidence or the credibility of the witnesses.  Sego, 82 Wn.2d at 

739-40.  "If there is substantial evidence which the lower court could reasonably have 

found to be clear, cogent and convincing, an appellate court should not disturb the trial 

court's findings." Aschauer, 93 Wn.2d at 695.  

       The only statutory element L.H. challenges on appeal is whether all necessary 

services reasonably capable of correcting her parenting deficiencies within the 

foreseeable future, have been expressly and understandably offered or provided as 

required under RCW 13.34.180(1)(d).  L.H. asserts DSHS did not provide or offer any 

domestic violence services.  

       DSHS has a duty to provide all necessary services tailored to each parent's 

needs.  In re Dependency of D.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004).  In 

determining whether adequate services have been provided, "the court may consider 

any service received, from whatever source, bearing on the potential correction of 

parental deficiencies."  D.A., 124 Wn. App. at 651-52.

       L.H. argues that because DSHS did not offer or provide necessary services to 

address domestic violence victimization, the parental rights termination order must be 

reversed.  The record does not support L.H.'s argument that she was not offered or 

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No. 67537-1-I (Consol. with No. 67538-9-I)/13

provided domestic violence treatment.   

       The record shows that L.H. was offered a number of services to address 

domestic violence and related mental health issues.  When DSHS initially referred L.H. 

for a domestic violence assessment, L.H. told DSHS social worker Sacquitne that she 

was engaged in domestic violence treatment at DAWN and a support group in 

Wenatchee.  L.H. later told Sacquitne she was engaged in domestic violence treatment 

at Eastside Domestic Violence. Sacquitne believed that L.H. was engaged in domestic 

violence services despite her refusal to sign a release of information.  Consistent with 

her representations to Sacquitne, at trial, L.H. testified that she received domestic 

violence treatment at DAWN and Eastside Domestic Violence.  L.H. also admitted that 

she received domestic violence treatment at Harborview.  The focus of cognitive 

behavioral therapy at Harborview was the domestic violence L.H. experienced and the 

resulting PTSD and major depression.  

       The record also shows that L.H. did not complete the treatment at Harborview.  

The court also ordered L.H. to follow Dr. McAtee's recommendations to engage in long-

term psychotherapy to address her mental health issues around dependency, self-

centeredness, victimization, and other mental health issues.  Nonetheless, L.H. did not 

do so. It is well established that additional services that might have been helpful need 

not be offered when a parent is unwilling or unable to make use of the services 

provided.  In re Interest of J.W., 111 Wn. App. 180, 187, 43 P.3d 1273 (2002).

       The cases L.H. relies on, In the Matter of the Dependency of T.L.G., 126 Wn. 

App. 181, 108 P.3d 156 (2005), and In re Welfare of C.S., 168 Wn.2d 51, 225 P.3d 953 

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No. 67537-1-I (Consol. with No. 67538-9-I)/14

(2010), are distinguishable.  In T.L.G., DSHS did not identify specific parental 

deficiencies and provide obviously needed mental health and anger management for 

over a year while waiting for a long-delayed psychological evaluation.  T.L.G., 126 Wn. 

App. at 203.  

       In C.S., although the mother was able to address her substance abuse, her 

parental rights were terminated based on her alleged inability to address her child's 

special needs.  C.S., 168 Wn.2d at 55.  Although DSHS provided the foster parents 

with training to effectively deal with C.S.'s special needs, DSHS did not offer the mother 

the same training.  C.S., 168 Wn.2d at 55-56.  

       Unlike in T.L.G. and C.S., DSHS timely offered L.H. an array of services to 

address her parental deficiencies, including domestic violence and related mental 

health treatment. The focus of counseling at Harborview was domestic violence.  

Recognizing that L.H. was a victim and perpetrator of domestic violence, Dr. McAtee 

concluded one to two years of intensive psychotherapy was necessary to address her

issues of dependency, self-centeredness, and victimization.  Ewanio recommended that 

L.H. engage in a dual treatment program to address mental health issues and drug 

dependence for at least a year.  L.H. refused these services while maintaining that she 

was receiving domestic violence treatment at DAWN and Eastside Domestic violence.  

Although L.H. was engaged in counseling at Harborview, she stopped going to 

counseling sessions and did not complete the program.  

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No. 67537-1-I (Consol. with No. 67538-9-I)/15

       In summary, substantial evidence supports the trial court's finding that DSHS 

provided all necessary services capable of correcting the domestic violence 

victimization suffered by L.H.

       We affirm the order terminating the mother's parental rights to A.M.H. and 

A.D.H.

WE CONCUR:

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