In Re The Dependency Of D.r. Lan Tran, Appellant V. Dshs, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency
of:

Dv.R.,
DOB: 2/22/08,

Dn.R.,
DOB: 5/17/06,

F.R.,
DOB: 8/13/04,

Minor Children.

LAN TRAN,
Appellant,
V.
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

Respondent.

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No. 71354-0-|

(consolidated with 71355-8-1,
71356-6-l, 71357-4-1, 71358-2-I,
71359-1-I)

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 9, 2015

BECKER, J. — Lan Tran appeals from the order terminating her parental

rights to her three sons. She contends that the Department of Social and Health

Services (DSHS) should have provided trauma focused cognitive behavioral

therapy (TFCBT) for two of the children. Because substantial evidence supports

the trial court’s determination that DSHS offered or provided all services

No. 71354-0-1/2
reasonably available and capable of correcting Tran's parental deficiencies, we
affirm.
Lan Tran is the mother of three sons, FR, DnR, and DvR, who were nine,
seven, and five at the time of the termination trial in October 2013. 	Frank
Rudolph, the boys' father, pleaded guilty to assaulting Tran and FR, and the
couple divorced in 2009. 	The court terminated Rudolph's parental rights in April
2013. 	Tran also has two older sons, who were not parties to the dependency or
termination proceedings.
In 2011, Tran remarried and had a daughter, KN, with her new husband.
KN was the subject of an agreed dependency proceeding, but the court
eventually dismissed the dependency and returned KN to her parents' home.
Tran has assigned error to only two of the trial court's extensive findings of
fact. 	The unchallenged findings are verities on appeal. 	In re Dependency of
J.A.F., 168 Wn. App. 653, 667, 278 P.3d 673 (2012).
Beginning in 2009, Child Protective Services (CPS) investigated a series
of reports that Tran was leaving FR, DnR, and DvR unsupervised in dangerous
situations. 	CPS determined that Tran had repeatedly left the three boys with
neighbors, occasionally with insufficient food, diapers, or clothing. 	She
sometimes failed to pick them up at the appointed time. 	Tran acknowledged that
on one occasion, she left the children with others for more than 24 hours, while
she remained sick in her own apartment. 	Later, Tran began sending the children
to day care. 	But she repeatedly picked them up late and left them for more than
the allowed 10 hours per day.

No. 71354-0-1/3
In September 2009, CPS investigated a referral that the two oldest boys
were outside unsupervised on an apartment balcony. 	Upon arrival, the CPS
worker discovered that the three boys were in the care of a 12-year-old
babysitter, who said that the older boys would not listen to her. 	The apartment
manager reported that he had seen the boys hanging over the balcony.
DSHS offered Tran a safety plan and referrals for various services,
including mental health and domestic violence counseling, family preservation
services, day care, and public health nurse services.
On March 12, 2010, Tran entered into an agreed dependency and
disposition for the three boys. As part of the disposition, Tran agreed to
participate in family preservation services and follow any recommendations,
continue weekly mental health counseling and follow treatment
recommendations, participate in domestic violence victims counseling services,
obtain a psychological evaluation with parenting component, and follow an
action/safety plan that specified, among other things, procedures she should
follow when leaving the children with DSHS approved neighbors.
Dr. Joanne Solchany conducted Tran's psychological evaluation and
assessed her interaction with FR, DnR, and DvR. She diagnosed Tran with
dysthymic disorder, characterized by a pervasive depressed mood, persistent
low energy, fatigue, low self-esteem, difficulty making decisions, and difficulty in
caring for herself and the children without the help of others. 	After observing the
three boys together, Dr. Solchany noted that "together [they] create a demanding

No. 71354-0-1/4
environment and then none of their individual needs gets the attention they
deserve and need."
Dr. Solchany acknowledged that Tran seemed to love her children and
want the best for them. 	She concluded, however, that Tran's depressed mood
and low energy levels left her overwhelmed and frustrated by her inability to
attend to the demanding behavioral and emotional needs of the three active
children. 	Dr. Solchany recommended that Tran be evaluated for antidepressant
medication, engage a parenting coach, and seek regular overnight "respite" from
the three boys. 	Dr. Solchany concluded that at least one of the children would
suffer serious or dangerous consequences from their behavioral and emotional
issues unless Tran developed adequate parenting skills.
In March 2011, Tran remarried, and in July 2011, she gave birth to her
daughter KN. Although Tran generally participated in the required services, she
continued to leave the boys in potentially dangerous situations, including
dropping FR off at school up to 90 minutes before school started in the morning.
She continued to be late in picking up the boys from day care and, on at least
one occasion, left them overnight. 	In March 2011, FR returned home from
school to find the door to his apartment locked. 	FR went to the apartment
business center and was eventually transported to day care.
On April 4, 2011, the court granted DSHS's petition to remove the three
boys from Tran's home. 	The boys moved into a foster home, where they have
remained throughout the dependency and termination proceedings. 	Following
the boys' removal, Tran has participated in twice-weekly supervised visits. But

No. 71354-0-1/5
she has failed to make sufficient progress to increase the frequency of the visits,
which have generally remained chaotic as a result of Tran's inability to interact
with the boys or impose consistent discipline.
Therapist Cassandra Ellsworth performed a mental health assessment of
the children. 	She diagnosed all three with posttraumatic stress disorder (PTSD).
In addition, DvR suffered from separation anxiety and dissociative disorder.
Symptoms included aggressive behaviors, poor sleeping and eating habits, and
an inability to concentrate.
DSHS filed petitions seeking to terminate Tran's parental rights on
February 8, 2013. 	Following a 12-day trial, the trial court entered orders
terminating her parental rights to FR, DnR, and DvR on December 2, 2013.
To prevail in a petition to terminate parental rights, the State must prove
the six statutory elements of RCW 13.34.180(1) 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 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. . . .

No. 71354-0-1/6
(f) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration into a
stable and permanent home.
"Clear, cogent, and convincing evidence exists 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) (internal quotation marks omitted),
quoting In re Seqo, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). 	The deference
accorded the trial court's advantage of having observed the witnesses is
"particularly important in deprivation hearings." 	In re Welfare of Hall, 99 Wn.2d
842, 849, 664 P.2d 1245 (1983).
In addition to establishing the statutory elements of RCW 13.34.180(1),
the State must also prove, by a preponderance of the evidence, that termination
is in the best interests of the child. 	RCW 13.34.190(2).
On appeal, it is undisputed that sufficient evidence supports the trial
court's determinations that FR, DnR, and DvR were found to be dependent, that
the court entered the appropriate dispositional orders, that the boys were
removed from Tran's custody for at least six months following the dependency
findings, that there is little likelihood that conditions will remedied so that the
children can return to Tran in the near future, that continuation of the parent-child
relationship clearly diminishes the children's prospects for early integration into a
stable and permanent home, and that termination is in the children's best
interests. 	Nor has Tran challenged the court's findings that she is currently unfit
to parent the three children and that despite Tran's participation in court-ordered

No. 71354-0-1/7
services for four years, she has failed to make any meaningful progress in
correcting those deficiencies.
Rather, Tran contends that DSHS failed to satisfy its burden of providing
all necessary services under RCW 13.34.180(1)(d) because it did not refer FR
and DnR for "trauma focused cognitive behavioral therapy," despite the
recommendation of the Foster Care Assessment evaluator. 	She argues that
TFCBT could have helped the two older boys eliminate or reduce some of their
behavioral and emotional problems, which in turn, would have reduced the level
of chaos during Tran's visits with the children. 	Tran claims that had the boys
participated in TFCBT, she would have felt less overwhelmed and been "more
receptive" to correcting her deficiencies through parenting services.
Tran's arguments rest on the recommendation of social worker Anthony
Kliment, the Foster Care Assessment Program (FCAP) evaluator. 	Kliment
completed a standard FCAP evaluation of FR, DnR, and DvR in December 2012.
A standard FCAP evaluation focuses on the specific needs of a child in foster
care and attempts to determine what will assist the child to thrive in his or her
current setting. 	Kliment did not undertake a reunification FCAP evaluation.
Kliment recommended that all three boys remain in their current foster
placement and that FR and DnR receive mental health counseling. 	In particular,
Kliment recommended that FR and DnR receive TFCBT, which he characterized
as clinically proven to be effective in cases involving trauma, abuse, and neglect.
DSHS did not refer the boys for TFCBT.
-7-

No. 71354-0-1/8
Cassandra Ellsworth, who provided counseling for both FR and DvR,
stated that TFCBT usually involves "ten to twelve sessions and is heavily focused
on creating coping skills for the client and walking through a trauma narrative and
successfully decreasing their triggers until they are no longer symptomatic of
trauma." 	Kliment believed that TFCBT could alleviate the boys' symptoms of
PTSD, such as sleep difficulties, difficulties in concentrating, behavior issues,
and problems involving acting out and avoidance.
Ellsworth, who was FR's first therapist and a certified TFCBT provider,
attempted to use "the very beginning pieces" of TFCBT in her sessions, such as
persuading FR to identify and discuss the underlying trauma. 	But FR was not
receptive to the techniques. 	Therapist Christina Hanson, who was not certified
for TFCBT, provided counseling services to FR after Ellsworth. 	Hanson testified
that TFCBT might have, although "not necessarily," facilitated the boys in
reaching their treatment goals more quickly had she been a certified provider at
the time. Dr. Solchany acknowledged that TFCBT was "definitely a good mode
of treatment" and very effective in certain cases but stressed that itwas not the
only method for treating PTSD in children.
Even ifTFCBT was an appropriate method of treatment for FR and DnR,
nothing in the record suggests that successful treatment would have had any
effect on Tran's ability to correct her parental deficiencies.
Although all three boys were still participating in therapy at the time of the
termination trial, they had all made substantial progress and met significant
-8-

No. 71354-0-1/9
treatment goals without TFCBT. The sleep and food related problems were
generally resolved, and all three boys were doing relatively well in school. 	The
court-appointed special advocate (CASA) testified that the boys' behavior in their
foster home had improved to the point that they were not experiencing any
particular difficulties.
Nonetheless, despite more than two years of twice-weekly supervised
visits, Tran failed to demonstrate any significant progress in her ability to provide
structure or discipline during the visits or interact in a positive manner with the
children. 	Connie Lewis, who supervised the visits, testified that the visits
remained "very chaotic for the most part." 	Tran often remained passive and
unwilling or unable to take control of the changing circumstances. 	Lewis would
sometimes have to step in and help control the children or end the visit.
Moreover, Tran's parental deficiencies involved more than her difficulties
in controlling and interacting with the children during the visits. 	The evidence
also established Tran's profound inability to recognize the consequences of her
chronic neglect of the boys and her failure to supervise them, her inability to
recognize or respond to their special needs, her failure to apply the lessons of
numerous parent-coaching sessions, her failure to recognize the dangers posed
by continuing abusive relationships, and uncertainties about the strength of her
support network. 	Lewis, the CASA, and social workers agreed that Tran would
not be able to safely parent the three boys, in addition to her daughter KN,
without supervision. 	The trial court's finding that the boys' return to Tran's

No. 71354-0-1/10
unstructured care would likely result "in regression and exacerbation" of their
previous symptoms is unchallenged.
Given the undisputed severity of Tran's parental deficiencies and her
failure to make any meaningful progress despite four years of services, nothing in
the record supports an inference that FR's and DnR's participation in TFCBT
would have facilitated Tran in correcting her parental deficiencies. 	Substantial
evidence supports the trial court's determination that all services reasonably
available and capable of correcting Tran's parental deficiencies were offered or
provided.
Affirmed.
WE CONCUR:
J 	.
-10-