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In re Welfare of H.S.3/9/1999
n eligibility criteria, which exists solely for the purpose of providing services to the mentally ill. The Department complied with the order and referred B.S. and L.S. to CAP twice.
The ADA was not violated. The ADA requires public entities to make reasonable accommodation for disabled persons. A.J.R., 78 Wn. App. at 230. The Act does not require public entities to provide the disabled with services not offered to others. 42 U.S.C. sec. 12132.
In addition to the denial by both B.S. and L.S. of the existence of any parenting problems, which is incompatible with successful treatment, CAP rejected B.S. and L.S. because of their long-term therapeutic needs and the length of time H.S. had already been out of the home. The admissions evaluator felt CAP would be able to recommend reunification only after long-term treatment. In the event H.S. were returned, reintegration would require individual therapy and ongoing monitoring. CAP could provide neither. Because of their mental illness, ongoing treatment with Adult Outpatient Services was perceived as more beneficial than the "insight-oriented group psychotherapy" offered through CAP. B.S. and L.S. refused the second CAP referral.
B.S. and L.S. are contending that they should be immunized from termination because the unavailability of a single offered service makes it impossible to prove RCW 13.34.180(4). But this case has been saturated with services from the beginning, establishing RCW 13.34.180(4) by clear, cogent and convincing evidence. It would defeat the purpose of the entire dependency and termination scheme if a single unsuccessful referral were sufficient to preclude a finding that all necessary and available services had been offered.
Little likelihood conditions will be remedied: If all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future are offered or provided and the parental deficiencies are not substantially improved within 12 months of the dependency order, a rebuttable presumption arises that there is little likelihood that conditions will be remedied so that the child can be returned to the parents. RCW 13.34.180.
B.S. and L.S. mistakenly believe the "conditions" of RCW 13.34.180(5) are limited to the facts of the original dependency, and if termination is not based on these precise facts, it must be reversed. They argue that the only grounds for H.S.'s dependency were the baby's failure to thrive, the mother's inappropriate sexual impulses, and the acute nature of the mother's mental illness at that time. Because RCW 13.34.040 limits the court's jurisdiction to these grounds, they contend that when the court found all of these conditions had been resolved, it lost jurisdiction. In re Welfare of Boatman, 73 Wn.2d 364, 367, 438 P.2d 600 (1968). A proceeding begun on one ground and continued on another, without any opportunity to define and contest the new allegations, constitutes a fundamental deprivation of due process. Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948); In re Detention of Cross, 99 Wn.2d 373, 384-85, 662 P.2d 828 (1983).
In the termination proceedings, they contend the "conditions" shifted to the alleged incapacity of the parents to provide for H.S.'s emotional and developmental needs. A dependency petition based on these "conditions," they argue, would have failed. They urge that they were wrongfully deprived of rights to their child without a showing that they are currently sufficiently "unfit" to permit a declaration of dependency under RCW 13.34.130.
B.S. and L.S. misinterpret the dependency statute. It is not necessary to re-establish t
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