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L.Y.M. v. Mayo

The Court of Appeals of Washington, Division One
Nov 8, 2010
158 Wn. App. 1032 (Wash. Ct. App. 2010)

Opinion

No. 65059-9-I.

November 8, 2010.

Appeal from a judgment of the Superior Court for King County, No. 09-7-03904-4, Harry J. McCarthy, J., entered February 10, 2010.


Affirmed by unpublished opinion per Schindler, J., concurred in by Becker and Lau, JJ.


Cecilia Mayo appeals the decision to terminate her parental rights to the youngest of her five children, L.V.M. Mayo contends that insufficient evidence supports the trial court's findings that (1) the State offered or provided all necessary services, (2) there was little likelihood conditions could be remedied in the near future, and (3) termination was in the child's best interests. Because the trial court's findings are supported by substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent, and convincing evidence, we affirm.

FACTS

Cecilia Mayo is the mother of five children: S.W., born August 15, 1994; L.D.W., born November 18, 2001; D.L.M.W., born October 27, 2002; L.M.M.W., born July 17, 2007; and L.V.M., born July 7, 2008. The Department of Social and Health Services (DSHS) filed dependency petitions as to all five children, and the court found the children were dependent. Mayo has had extensive involvement with DSHS.

Lee Stanley Word is the father of the four younger children. His parental rights were terminated in February 2009 and are not the subject of this appeal.

Mayo has an extensive history of drug use. In July 2006, after Mayo was convicted of attempted possession of heroin, she failed to comply with probation requirements that she obtain a drug and alcohol evaluation and follow treatment recommendations. In July 2007, when L.M.M.W. was born, Mayo tested positive for opiates. Although she signed a voluntary agreement to place the baby at Pediatric Interim Care Center (PICC), and to provide random urinalysis (UAs), she failed to follow through with the UAs.

In October 2007, Mayo entered into an agreed dependency order as to her four children. The court ordered Mayo to complete random UAs and obtain a drug and alcohol evaluation. Although several social workers provided referrals, Mayo did not follow through with the court-ordered requirements.

L.V.M. was born on July 7, 2008. Mayo tested positive for opiates. DSHS placed L.V.M. in shelter care. At the review hearing the following day, the court found that Mayo had sporadically engaged in random UAs, but most of the UAs were positive for opiates, and she had not complied with court-ordered services.

In August 2008, Mayo completed a drug and alcohol evaluation. The evaluator recommended intensive inpatient treatment. Mayo entered inpatient treatment in October 2008. In November 2008, Mayo entered into an agreed dependency order as to L.V.M. Mayo admitted she suffered from polysubstance abuse which impaired her ability to parent.

In December 2008, the Department filed a petition to terminate Mayo's parental rights to the four older children, S.W., L.D.W., D.M.L.W. and L.M.M.W. The termination trial was scheduled to commence April 20, 2009. Because Mayo was scheduled for discharge from inpatient treatment in April 2009, the court agreed to continue the trial to August 2009. In April 2009, Mayo was discharged from impatient treatment with a referral to began intensive outpatient treatment.

At the request of DSHS, in February 2009, Mayo had completed a psychological evaluation with Dr. R. Eden Deutsch. Dr. Deutsch diagnosed Mayo with opioid dependence, major depressive disorder, and anxiety disorder. According to Dr. Deutsch, her depression made it difficult for her to process information and make decisions. He recommended mental health treatment, including a medication evaluation and counseling. Despite his conclusion that she was "probably not a good candidate for individual therapy," Dr. Deutsch also recommended that "it would be helpful for her to be in therapy and to try and deal with her issues."

From August 2008 to March 2009, Mayo received mental health treatment at Sound Mental Health (SMH) following a referral by DSHS social worker Xiao Yu Jackson. In March 2009, she lost her funding to continue at SMH. Mayo last met with her SMH counselor on March 5, 2009.

In May 2009, Jackson referred Mayo to therapist Parmah McAllister for counseling at Coleman Family Services. Mayo received counseling from McAllister through July 2009. McAllister assisted Mayo in trying to obtain housing and a GED, and discussed her drug problems. Mayo testified that she received mood-stabilizing medication to treat her depression, and had taken the medication since April 2009.

Dr. Deutsch updated his evaluation in July 2009 after Mayo completed inpatient drug and alcohol treatment. Dr. Deutsch specifically noted that Mayo was "seeing a difference in herself with the benefit of her treatment and classes."

Mayo told McAllister that she intended to access additional mental health treatment through Therapeutic Health Services (THS) or Rainier Beach Medical Center. In August 2009, Mayo told Jackson that she had completed a mental health evaluation at THS and wanted to receive mental health services there. Jackson told Mayo to pursue treatment at THS, and to have THS contact Jackson if the agency required additional consent forms. Mayo later acknowledged that she scheduled an appointment with a mental health specialist at THS in November 2009, but missed the appointment. Mayo also testified that she scheduled an intake appointment at Rainier Beach Medical Clinic for mental health services, but never completed the intake.

Despite having received a referral from the Department prior to her April 2009 discharge, Mayo did not begin intensive outpatient drug and alcohol treatment at THS until June 16, 2009. Once enrolled, she did not fully participate in outpatient treatment, relapsed, and began selling cocaine.

In June, a dependency guardianship was entered as to S.W. and an agreed order terminating Mayo's parental rights was entered as to L.M.M.W. On July 30, DSHS filed a petition to terminate Mayo's parental rights to L.V.M. On August 4, trial commenced on the Department's petition to terminate Mayo's parental rights to L.D.W. and D.L.M.W. On August 21, the court terminated Mayo's parental rights to D.L.M.W. and L.D.W.

Mayo acknowledged that after her parental rights to L.D.W. and D.L.M.W. were terminated, she stopped participating in court-ordered services. "[B]asically when I didn't get my kids back I just kind of stopped doing everything." She testified, "I did everything the department asked me to do . . . and I still didn't get any of my kids back. So a person tends to get discouraged and stop doing everything."

Following Mayo's relapse, Dr. Deutsch updated his evaluation again in August 2009. Dr. Deutsch recommended that Mayo re-enter inpatient drug and alcohol treatment. THS counselor Brenda Grayson also recommended an additional year of inpatient treatment. Grayson scheduled an intake appointment, but Mayo did not attend. Mayo stopped having any contact with Grayson, and was discharged from THS in September 2009. After the termination trial in December 2009, the court terminated Mayo's parental rights to L.V.M.

ANALYSIS

Mayo challenges the trial court's findings that the State offered or provided all necessary services, and that termination was in L.V.M.'s best interests.

Mayo assigns error to the trial court's findings that her parental deficiencies could not be remedied in the near future as required by RCW 13.34.180(1)(e) and that "continuation of the parent-child relationship would be detrimental" to L.V.M. Because Mayo does not provide specific argument on these points, she has, accordingly, waived these claims of error. See Brown v. Vail, 169 Wn.2d 318, 336, n. 11, 237 P.3d 263 (2010), citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(a)(6).

In order to terminate a parental right, DSHS must prove the six statutory elements of RCW 13.34.180 by clear, cogent, and convincing evidence, and must show that termination is in the best interest of the child by a preponderance of the evidence. In re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963 (1998).

RCW 13.34.180(1)(a-f) provides, in pertinent part, that DSHS must prove:

. . . .

(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 . . .;

. . . .

(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) ( quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). If the State proves these six elements, the court then must also consider whether termination is in the best interest of the child. RCW 13.34.190(1)(a), (2).

The deference paid to the trial court's advantage in having the witnesses before it is particularly important in parental termination proceedings. In re Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). This court will not disturb the trial court's findings of fact supported by substantial evidence. In re Welfare of S.V.B., 75 Wn. App. 762, 768, 880 P.2d 80 (1994). Unchallenged findings are verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).

The first three statutory elements of RCW 13.34.180 were undisputed at trial and are unchallenged on appeal: L.V.M. was found to be dependent, the court entered dispositional orders, and L.V.M. had been removed from Mayo's care for at least six months prior to the termination trial. In addition, Mayo does not challenge the trial court's finding that continuation of the parent-child relationship clearly diminishes L.V.M.'s prospects for early integration into a stable and permanent home.

Mayo also does not challenge the majority of the trial court's findings of fact, including the following:

1.24 The mother lacks credibility regarding her drug use.

. . .

1.43 The mother underreported and minimized her drug use to Dr. Deutsch.

1.44 In August 2009, Dr. Deutsch concluded that the mother's concentration was impaired and she would make little effort into introspection. Dr. Deutsch also significantly concluded that the mother has problems integrating information and changing her behavior which would be necessary to make use of drug treatment or mental health counseling.

1.45 Dr. Deutsch also concluded that the mother had the ability to parent while she was engaged in inpatient treatment and had adequate parenting skills; however, the mother's continued drug use was a detriment to her ability to appropriately parent.

1.46 The mother's behavior and involvement with services during this dependency is consistent with the results of the personality testing completed by Dr. Deutsch. The mother has demonstrated immaturity, impulsiveness, risk taking, bad judgment and a tendency to be somewhat self-centered and blaming others for her problems as identified in the mother's MMPI-2 profile. The mother has demonstrated an inability or unwillingness to seek help; she is often depressed, morose and disengaged as identified by the mother's MCMI-III profile.

. . . .

1.54 The mother has a longstanding serious drug addiction that has spanned over several years.

1.55 The mother has not addressed or fully participated in treatment to address her longstanding serious drug addiction.

1.56 The mother's engagement in drug treatment has been woefully inadequate as she remains in the powerful grip of addiction.

. . . .

1.63 Between May 2009 and July 2009 the mother appeared depressed to her counselor, Ms. McAllister. The mother was on mood stabilizers during this time frame.

. . . .

1.71 Dr. Deutsch recommended that the mother demonstrate six to twelve months of stability evidenced by negative and consistent random urinalysis testing, stable lifestyle and engagement in mental health and drug treatment services. Dr. Deutsch also recommended that it would be closer to a year of sobriety before placement of the child should be considered given the mother's lengthy drug history and failed treatment attempts.

. . . .

1.79 The child would be at serious risk and jeopardy if placed with the mother due to her ongoing drug use.

Adequacy of Services Offered or Provided

Mayo asserts clear, cogent, and convincing evidence does not support the finding that DSHS offered or provided all necessary services. In specific, Mayo contends that DSHS failed to offer or provide mental health counseling. We disagree.

DSHS has an obligation under RCW 13.34.180(1)(d) to offer and provide services capable of correcting parental deficiencies within the foreseeable future. DSHS must, at a minimum, provide a list of agencies or organizations that offer the court-ordered services. In re Dependency of D.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004). It is well-established that if a parent is unwilling or unable to make use of the services offered or provided, DSHS is not required to offer other services that might have been helpful. In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001).

The trial court found:

1.12 The mother was offered or provided additional services in the dependency of her other children . . . beginning in October 2007 through August 2009. The services offered to the mother included random urinalysis testing, drug and alcohol evaluation and treatment, and mental health services. . . .

1.13 Services ordered under RCW 13.34.130 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 to the mother, including drug and alcohol evaluation and treatment, random urinalysis testing, psychological evaluation with parenting component and mental health services in this dependency.

1.14 The services were offered numerous times to the mother and were capable of correcting her parental deficiencies. The mother clearly understood what services were offered to her.

. . . .

1.39 The mother engaged in mental health services at Sound Mental Health from August 2008 through March 2009. The mother engaged in mental health services with Parmah McAllister from May 2009 to July 2009. The mother has not been engaged in mental health services since at least September 2009 and only recently set an appointment for mental health counseling through THS. The mother also receives medication to manage her diagnosed depressive disorder.

. . . .

1.62 The mother has failed to follow through in [any way] with ongoing counseling to address her diagnosis of depression as recommended by Dr. Deutsch.

. . . .

1.73 The rebuttable presumption pursuant to RCW 13.34.180(1)(e)(i) applies to this case. The mother's use of intoxicating substances has rendered her unable to parent for extended periods of time and she has and continues to be unwilling to receive and complete treatment and has multiple failed or delayed treatment attempts.

1.74 The mother's parental deficiencies of drug addiction and untreated mental health have existed for some time and continue to exist despite the opportunity and wealth of services offered to her. The mother would need to demonstrate at least one year of sobriety and stability before she could be in a place to be a healthy and appropriate caregiver for [L.V.M.]. One year is too long for [L.V.M.] to wait in the slim hope that [L.V.M.'s] mother will make the necessary changes to parent [L.V.M.].

Mayo challenges the court's findings to the extent that the findings suggest DSHS offered or provided services that were adequate and tailored to her needs. She alleges that her mental health issues interfered with her ability to benefit from or assimilate the drug treatment she was provided, and that simultaneous treatment of both problems was needed. She contends that the Department was required to offer treatment consistent with Dr. Deutsch's recommendations, and that no mental health referrals or funding was provided following Dr. Deutsch's evaluation. We note that Mayo took a contrary position at trial, asserting that there was a high likelihood L.V.M. could be returned to her care because "the mother has had some mental health counseling," that she "benefitted from and made some progress during the sessions" with McAllister, and that Mayo had scheduled an appointment to re-start counseling.

But the record shows that DSHS offered or provided mental health treatment consistent with Dr. Deutsch's recommendations. Dr. Deutsch's trial testimony indicates that he recommended a medication evaluation and counseling. Specifically, he testified that Mayo's depression "could be eased with some treatment including medication" and that "it would be helpful for her to be in therapy and to try and deal with her issues." Mayo engaged in mental health services at SMH from August 2008 through March 2009, and engaged in counseling with McAllister from May 2009 to July 2009. It is also undisputed that Mayo received medication to manage her diagnosed depressive disorder.

Dr. Deutsch's written recommendations are not of record on appeal.

Dr. Deutsch's testimony also indicates that Mayo was receiving treatment consistent with his recommendations when she worked with McAllister. Dr. Deutsch testified: "[M]y impression was that she had [engaged in mental health treatment], that she was on medications and that she was in counseling." In addition, in Dr. Deutsch's August 2009 updates to his evaluation, he reviewed McAllister's treatment summaries and did not indicate that McAllister's treatment was in any way inadequate. Instead, he recommended only that Mayo change to more intensive drug and alcohol treatment. The record supports the conclusion that Mayo was offered and received the very treatment Dr. Deutsch recommended.

The evidence also supports the trial court's finding that Mayo "chose to stop all services in August 2009 and continue[d] to use drugs." Mayo candidly testified that she stopped cooperating with the Department and abandoned her mental health and drug/alcohol services because she was discouraged. DSHS social worker Jackson corroborated Mayo's testimony, confirming that she lost contact with Mayo after that date. This evidence amply demonstrates that Mayo was no longer amenable to recommended assistance, and supports the trial court's finding that Mayo was unable or unwilling to seek help. At the August 2009 termination trial, Mayo acknowledged that "she understood what she needed to do to have her children returned to her care," and admitted that the Department "has provided her with the services she needed to remedy her parental deficiencies." At that time, she claimed "she needed no further services to remedy her deficiencies. . . ."

Exhibit 12 is the Findings of Fact, Conclusions of Law, and Order of Termination of Parent-Child Relationship Following Fact-Finding Trial from the termination trial concerning L.D.W. and D.L.M.W. Mayo appealed the termination of her parental rights to L.D.W. and D.L.M.W. This court affirmed in June 2010.

Mayo told McAllister that she was receiving medication from Rainier Medical Center and was involved with a mental health counselor at THS. Mayo's THS outpatient counselor Grayson testified that she made a referral for the mother to the mental health program at THS, and that she reported attending her assessment. Mayo told her social worker that she had arranged for mental health counseling at THS. Mayo also testified that she scheduled an intake appointment at Rainier Beach Medical Clinic for mental health services but never completed the intake. Thus, the record supports the findings that Mayo was offered these services and knew how to access them, but simply failed to follow through.

Mayo contends that her case is analogous to H.W., and that reversal is required because she did not receive adequate assistance accessing services. In H.W., the parent in question was developmentally disabled. H.W., 92 Wn. App. at 421. DSHS failed to offer any services from the Division of Developmental Disabilities (DDD), but assumed the parent lacked the ability to acquire information needed to allow her children to return to her care. H.W., 92 Wn. App. at 428-29. This court reversed the termination order, holding that the State failed to meet its burden by not offering DDD services. H.W., 92 Wn. App. at 429-30. But here, unlike in H.W., Mayo knew how to access the services she claims she was not offered, but chose not to avail herself of them.

The trial court's finding that Mayo "failed to follow through . . . with ongoing counseling to address her diagnosis of depression" is supported by the evidence, as is the finding that she failed to take advantage of all of the services offered to her. Substantial evidence supports the trial court's findings that DSHS offered or provided all court-ordered and necessary mental health counseling services capable of correcting parental deficiencies in the foreseeable future.

Best Interests of the Child

Mayo argues that because the trial court erred in finding that DSHS proved each of the statutory elements required for termination, termination was not in the child's best interests. But because the finding is supported by substantial evidence, and DSHS proved each of the statutory factors in RCW 13.34.180, the court did not err in concluding that termination of Mayo's parental rights is in the child's best interests.

We affirm.

WE CONCUR:


Summaries of

L.Y.M. v. Mayo

The Court of Appeals of Washington, Division One
Nov 8, 2010
158 Wn. App. 1032 (Wash. Ct. App. 2010)
Case details for

L.Y.M. v. Mayo

Case Details

Full title:In the Matter of the Dependency of L.Y.M. THE DEPARTMENT OF SOCIAL AND…

Court:The Court of Appeals of Washington, Division One

Date published: Nov 8, 2010

Citations

158 Wn. App. 1032 (Wash. Ct. App. 2010)
158 Wash. App. 1032