FILED JUNE 15, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Dependency of ) ) No. 37674-5-III Z.M.Y. ) (Consolidated with ) No. 37701-6-III) ) ) UNPUBLISHED OPINION )
STAAB, J. — A dependency case was initiated for Z.M.Y. in King County after her
older sister reported seeing the father masturbate under a blanket with Z.M.Y. in his
arms. Both parents agreed to the dependency, and Z.M.Y. was placed with the mother,
on the condition that the father have no unsupervised contact with Z.M.Y. Shortly after
the dependency order was entered, the family moved to Clarkston, and eventually the
dependency case was transferred to Asotin County. Z.M.Y. was removed from the
mother’s custody after the family, including the father, was found together in a hotel
room.
Eventually, the State filed a petition for termination of the parental rights of both
parents. The trial court granted the State’s petition for termination. Both parents appeal,
alleging that there is insufficient evidence to support the court’s finding that all ordered No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
and necessary services were provided to the parents, and it is in the best interest of the
child to terminate parental rights.
We affirm the termination order as against the Father, but reverse the court’s order
terminating the parental rights of the mother.
FACTS
A. Underlying Allegations
D.M. (mother) and G.Y. (father), are the parents of Z.M.Y. born in 2012. The
mother also has a teenage daughter, M.M. who is not related to the father and usually
lives in another State with her aunt and guardian.
In 2016, the family was in Seattle for medical treatment, when M.M. reported that
the father was masturbating in front of the children. Specifically, M.M. reported that
Z.M.Y. was awake and in the same bed as the father. M.M. said Z.M.Y. “appeared
unsure of what was happening” and M.M. took her out of the room while the father
continued to masturbate. Ex. P-3 at 2. M.M. reported, and the Seattle Police Department
confirmed, that the father is a registered sex offender due to a prior conviction for sexual
abuse of a child under sixteen years old.
As a result of M.M.’s allegations, the Department of Children, Youth, Families
(Department) filed dependency actions against both parents. The father denied the
allegation. The mother did not believe this incident occurred but said she was willing to
participate in a nonoffender parent program.
2 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
The court entered agreed orders of dependency as to the mother and father. At the
time, Z.M.Y. was just shy of her fourth birthday. Both dependency orders recommended
that Z.M.Y. remain in the mother’s custody, on condition that the father not live in the
home and not have contact with Z.M.Y. outside of court-ordered visits. King County had
previously entered a protection order prohibiting contact between the father and Z.M.Y.
that was to remain in effect until dismissal of the dependency or further order of the
court.
As part of the dependencies, both parents were ordered to complete specified
services. The father was ordered to complete a parenting assessment, establish paternity,
complete a sexual deviancy evaluation, submit to random urinalysis testing (UA’s),
complete a substance use evaluation and follow all treatment recommendations. The
father was also ordered to execute all releases of information to the Department relating
to the father’s past criminal sex abuse case. The father was to contact the Department to
arrange phone or in-person visits. The father was instructed to notify the Department if
he believed the services offered or provided were not adequate.
The mother was also ordered to complete services, including a parenting
assessment, establish paternity, complete Harborview’s “non-offending Parenting
Program or similar program,” and provide updates about her medical treatments if
anything changed. Ex. P-4 at 9.
3 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
A few months after the dependency orders were entered, the father, mother, and
Z.M.Y. moved to Clarkston, Washington. Concerned that the mother was allowing the
father to have unauthorized contact with the child, the assigned social worker, Avril
Desalme, requested a welfare check on the child. When law enforcement arrived at the
hotel where the mother and Z.M.Y. were staying, the father was found sleeping in the
room. The hotel clerk told law enforcement that the father was a frequent visitor. The
father was arrested and charged with violating the no-contact order. Z.M.Y. was
removed from the mother’s custody and placed in the custody of the child’s aunt, where
she has remained throughout the dependency.
B. Additional Allegations Against the Father
During the dependency, additional allegations against the father came to light. In
addition to the incident that provoked the dependency, M.M. testified that “sex was
always a topic when [the father] was around.” Report of Proceedings (RP) at 292. When
she was alone with the father, he would repeatedly tell her that the mother would not
have sex with him, tell her about sexual encounters with the mother, or tell M.M. how
beautiful M.M. was. The father also hit on M.M.’s friends by telling them their bodies
were beautiful and voluptuous. M.M. testified that the father made her feel
uncomfortable but never touched her inappropriately. When she tried to stand up to the
father, he got in her face and yelled at her, until the mother stepped in and pushed M.M.
4 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
out of the way, saying the father would hurt her. Aside from pushing her away, the
mother never protected M.M., and the mother never told him to stop.
After being removed from her mother’s custody, Z.M.Y. was placed in the custody
of her aunt, Melissa Costa. Ms. Costa had known the father for years and knew of his
status as a registered sex offender. She testified at trial that over the years she had
witnessed the father make sexual advances toward every female in her family. In one
instance, the father, while naked from the waist down, chased Ms. Costa around until she
burned him with a cigarette. The father grabbed Ms. Costa by the throat and pushed her
against a door so she punched the father. In another instance, the father’s advances
toward Ms. Costa were so aggressive that she barricaded herself in a room until he fell
asleep. Ms. Costa had also witnessed the father masturbate in front of several family
members.
Although she never saw him act aggressively toward his daughter, Ms. Costa
frequently watched the ather touch himself and other people in front of the child. Ms.
Costa testified that she believed the father had sexually abused the child. She based her
belief on statements made by Z.M.Y. along with overly sexual behavior displayed by
Z.M.Y.
The child’s therapist also testified that she believed the father had abused Z.M.Y.
Heather Cochrell works for Quality Behavior Health in Clarkston and is the program
manager for the agency’s Community Sexual Assault Program (CSAP). Ms. Cochrell
5 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
conducted a mental health assessment on Z.M.Y. and was her assigned therapist before
Z.M.Y. moved into CSAP therapy. Ms. Cochrell testified that she believed the father had
sexually abused Z.M.Y. She based her opinion on the statements by the child and
Z.M.Y.’s uncharacteristically sexualized behavior. Ms. Cochrell testified that a child’s
sexual behavior “can be” an indicator of sexual abuse. RP at 397.
Concerned that Z.M.Y. was being abused, the therapists at Quality Behavior
Health contacted law enforcement. Officer Bryon Denny, a certified child forensic
interviewer with the city of Clarkston Police Department, was asked to participate in
several forensic interviews with Z.M.Y. The first interview occurred in June 2017,
shortly after the child was removed from the mother’s custody. Z.M.Y. initially indicated
that her mother had touched her butt, but then revised it to say that her father had touched
her butt. Z.M.Y. was unable to consistently relay details about this incident, indicating it
occurred inside, but later saying it occurred it the car. Z.M.Y. did indicate that the father
had touched her in the genital area and it “bleeded” but then pointed to her arm to
indicate where she was bleeding. RP at 131. Eventually, Z.M.Y. shut down, and Officer
Denny terminated the interview.
Officer Denny was contacted three months later after Z.M.Y. raised her hand in
school during a good touch/bad touch presentation and told the advocate that her father
“did a bad touch.” RP at 133. During this second interview, Z.M.Y. told Officer Denny
that “her daddy did yuckies in front of” her. RP at 133. Similar to the first interview,
6 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
Z.M.Y. had difficulty staying on track and engaged with the conversation. When asked
what “yuckies” meant, she pointed to her genitals and said “he was snoring and that both
eyes were open.” RP at 133. The incident occurred at night in a motel with the father,
mother, and M.M. when they went to see the doctor, but she did not know where it
occurred. She said the father was on the lower bed bouncing up and down and she saw
her father’s privates one time.
Two months later, Detective Jackie Nichols conducted a third forensic interview
of Z.M.Y. Again, Z.M.Y. wandered off topic and talked about seeing ghosts. She did
tell Detective Nichols that the “uckies” happened with her “real dad,” and put play dough
in her crotch to show where uckies were, but her statements were not clear. RP at 153.
Z.M.Y. went on to say that “her dad wanted to do uckies with her and that they had
jammies on and that they were under a blanket.” RP at 156. The uckies had not
happened with anyone else. While Detective Nichols believed this occurred in Seattle,
she was unable to identify where and when the crimes occurred. She did not believe she
had enough information to request criminal charges. Nonetheless, Detective Nichols
believed that the father had abused Z.M.Y.
The following year, in July 2018, Kimberly Belton was supervising a visit
between the father and Z.M.Y. While she generally stayed in another room during these
visits, she became concerned that the interactions were “becoming pretty touchy” so she
moved to the same room and sat in a chair across from the father. RP at 166. Z.M.Y.
7 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
was moving on and off the father’s lap, and Ms. Belton could see the child was becoming
uncomfortable. While the father was pulling Z.M.Y. back on his lap, it was clear that she
was trying to push away. Ms. Belton cued the father to let the child get off his lap, and
when Z.M.Y. got down, Ms. Belton realized that the father had a visible erection. As a
result of this incident, the father’s visitations were terminated until he could show
compliance with his sex offender treatment.
Two months after the father’s last visitation, Officer Denny observed a fourth
forensic interview of Z.M.Y. conducted by an interviewer from Partners with Family and
Children in Spokane. Officer Denny testified that during the interview, Z.M.Y. said “she
couldn’t see her dad anymore because it was private” and that “it was a private part he
used on her,” but then Z.M.Y. changed the subject. RP at 136. Officer Denny testified
that Z.M.Y. “said that he touched her on her privates and then pointed to her genital area.
[Z.M.Y.] said he did it because he could when he couldn’t,” then she changed the topic
again. RP at 136. Z.M.Y. said she told the mother what happened, and she did not
believe her, but her foster mom did. Z.M.Y. said the touching happened once, the father
used his hand, clothes were on, and the touching was outside of the clothes. Z.M.Y.
demonstrated the touch with an open hand. Z.M.Y. said the father touched her butt, but
pointed to her genitals; she said it felt bad when he did this. Z.M.Y. said there was more
that happened, but she did not want to talk about it. Ms. Williams asked Z.M.Y. if she
8 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
could come later to talk about it, Z.M.Y. agreed, so another interview was scheduled for
October 3, 2018.
At the fifth forensic interview, Z.M.Y. told the interviewer that she did not have
visits with the father anymore because he did bad things. Z.M.Y. again said he touched
her privates over her clothes. She said the father came to Z.M.Y.’s bed while the mother
was sleeping. The mother woke up and asked the father what he was doing, and he
responded, “nothing you need to know.” RP at 137. Z.M.Y. said the mother did not see
what the father was doing. Z.M.Y. said this all happened at her house and that it was just
one time. She said the father never showed Z.M.Y. his privates and Z.M.Y. never saw
him touch his own privates. Z.M.Y. said there was nothing more to talk about.
When Ms. Williams asked Z.M.Y. about what happened at the motel, Z.M.Y. said
“Daddy wasn’t doing good things,” and she could not talk about it because it was private.
RP at 137-38. Z.M.Y. said this was different from what they already talked about. After
the interview, Officer Denny and Ms. Williams spoke, and it was their belief that “clearly
something happened.” RP at 138. However, unless she made more disclosures, it would
not be productive to do more interviews until Z.M.Y. had time in counseling and had
grown up a little.
C. Additional Allegations Against the Mother
Throughout the dependency, the primary allegation against the mother had been
her failure to recognize the danger posed by the father and the mother’s failure to protect
9 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
Z.M.Y. from the father. While the mother was apparently asleep when M.M. witnessed
the father masturbating near Z.M.Y., M.M. testified at trial that the mother later told
M.M. that she should not have reported the incident and blamed M.M for the
dependency. When the father would get aggressive with M.M., the mother would not
protect M.M. or tell the father to stop.
As noted above, Ms. Costa, the mother’s sister, witnessed numerous instances of
the father conducting himself in a sexually inappropriate manner in front of Z.M.Y. The
mother would not stop the father from acting this way in front of Z.M.Y. When this
behavior was pointed out to the mother, she would minimize the father’s behavior and
assure Ms. Costa that the father would never do anything to Z.M.Y. Ms. Costa believed
the mother was in denial and would always protect the father over Z.M.Y.
Therapist Heather Cochrell testified that she did not believe the mother would
protect Z.M.Y. Z.M.Y. reported in therapy that when she told her mother what the father
had done to her, the mother told Z.M.Y. to tell the father to stop, but did nothing more to
protect Z.M.Y.
Social Worker Bologova testified that the mother made it clear that she was not
living with the father and was not allowing him contact with Z.M.Y., but was then found
in a hotel room with the father and Z.M.Y. in violation of the order on dependency.
Asotin County Social Worker Desalme testified that she was also concerned about
the mother’s unwillingness to protect Z.M.Y. from the father. Ms. Desalme told the
10 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
mother that she was concerned about returning Z.M.Y. to the mother if she was in an
active relationship with the father. The mother told Desalme that she did not think
therapy would help because the father did not do anything wrong. RP 16.
Over the course of the dependency, the mother and father’s relationship was off
and on. During that time, the mother would vacillate between believing the father had
not abused Z.M.Y. and wanting nothing to do with the father. In 2020, after the mother
declared that she was not in a relationship with the father, Desalme learned that the two
had married a few months earlier.
D. Termination Proceedings
In April 2019, three years after the dependency was entered, the State filed for
termination of the parents’ rights. Trial commenced in July 2020. The State called
several witnesses who testified about the allegations against the parents, the services that
had been ordered as part of the dependency, and the parents’ compliance with these
services.
1. Testimony/Evidence of the father’s compliance with services ordered.
Social worker Bologova testified that the father was ordered to obtain several
services including: a parenting assessment, establish paternity, obtain a sexual deviancy
evaluation and follow any recommended treatment, provide random urinalysis testing,
obtain a drug and alcohol evaluation and follow any recommended treatment.
11 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
The father did not obtain a sexual deviancy evaluation until October 2018, more
than two years after the dependency order was filed. The father was found to be a
moderate risk to reoffend, assuming he was in compliance with treatment but was also
found to be less amenable to sex offender treatment than the average examinee.
The father was supposed to start sex offender treatment in May 2019, but did not
show up for several appointments. He eventually started treatment in October 2019.
Over the next few months, his attendance was spotty. And on June 17, after
missing all but one group session in the last three months, the father was discharged from
the program for nonattendance, lack of participation, and lack of progress. The father
never reengaged in treatment. The treatment counselor testified that the father needed
about two years of treatment to be successful.
The father’s compliance with drug and alcohol abstinence and treatment was
mixed. The father’s community corrections officer testified that during 2019, the father
was sanctioned several time for positive UAs. However, the father presented testimony
from a physician working at Ideal Options Treatment Center, who testified that the father
was successfully enrolled in a medically assisted treatment program for opioid abuse
from June 2018 to March 2020. The father was seen at the agency every two weeks and
provided a UA at each visit. While some of these UA tests were positive for illicit drugs,
many of them were negative. The father was considered in compliance at his last visit.
12 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
The father was also in substance abuse treatment at Quality Behavior Health off
and on from November 2016 to the time of trial. When he did attend sessions, he
participated effectively in group, but his attendance was inconsistent. At the time of trial,
the father had not provided a UA for over six months.
2. Testimony/Evidence of the mother’s compliance with services ordered.
The State also presented testimony on the mother’s compliance with services. The
mother was initially ordered to obtain a parenting assessment, establish paternity, and
comply with the Harborview Center for Sexual Assault and Traumatic Stress
(nonoffender Parenting Program) or similar program.
Social worker Bologova testified that once the mother moved to Clarkston, the
Harborview Program was no longer reasonable. However, the program could be
substituted with appropriate therapy that focused on understanding child sexual abuse, its
implications, how it happens, what to be aware of, how to intervene, the impact on the
child, and the long-term effects. Bologova contacted Quality Behavior Health in
Clarkston and made arrangements for this agency to provide services similar to the
nonoffender program. Quality Behavior Health advised Bologova that they would be
able to provide this service to the mother so long as she signed the consent form for
Asotin County Social Worker Desalme testified that she was assigned to the case
in December 2017, after the family moved to Clarkston. It was Ms. Desalme’s
13 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
understanding that Bologova had already arranged for nonoffender services through
Quality Behavior Health before she was assigned the case.
Katherine Troutman, a therapist and advocate at Quality Behavior Health, testified
that she met with the mother for one hour in August 2018. During that meeting, she
updated the mother’s consent for services, signed a release of information, completed a
housing application, and “provided support and advocacy.” RP at 378. When asked if
she was providing the mother with nonoffender services, Ms. Troutman said, no. Ms.
Troutman also testified that Quality Behavior Health does not offer a nonoffender
program and she had never put together a treatment plan for nonoffender services. Ms.
Troutman indicated that she scheduled four follow-up therapy sessions but the mother
failed to appear for any of these appointments. There was no indication that any of these
sessions were intended to provide nonoffender services or similar therapy.
Tina Overstreet from Quality Behavior Health testified that the mother completed
a substance use assessment on October 31, 2019, which recommended no treatment.
3. Trial court’s findings and conclusions.
At the conclusion of evidence, the trial court entered detailed findings of fact. The
court found that the father is a convicted sex offender who continues to demonstrate
deviant sexual behavior in the presence of the child. There is also evidence that the
father had abused the child. The father had failed to comply with sex offender treatment
and substance use treatment. The court also found that the mother failed to protect
14 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
Z.M.Y. from the father’s deviant behavior. The court found that both parents had been
offered all ordered and necessary services to address and overcome these deficiencies,
but the child remains in grave danger from future sexual abuse or exploitation from the
father’s actions and the mother’s failure to protect the child from the father. The court
concluded that the statutory factors had been met and termination was in the child’s best
interest.
Both parents have appealed the order terminating their parental rights.
ANALYSIS
As a reviewing court, our role is limited to assessing whether substantial evidence
supports the trial court’s findings. In re Parental Rights to D.H., 195 Wn.2d 710, 718,
464 P.3d 215 (2020).
A. Law on Termination
While our role on appeal is limited, we nonetheless recognize the substantial rights
at stake in this case. “The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State.” Santosky
v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because parents
have a fundamental liberty interest in the custody and care of their children, the
Department may terminate parental rights “‘only for the most powerful [of] reasons.’”
15 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
In re Termination of S.J., 162 Wn. App. 873, 880, 256 P.3d 470 (2011) (alteration in
original) (quoting In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)).
The termination of parental rights is a two-part process at trial. First, the trial
court considers whether the parents are fit. To meet its burden of proving that the parents
are unfit, the Department must prove the six elements in RCW 13.34.180(1) by clear,
cogent, and convincing evidence. RCW 13.34.190(1)(a)(i).
The second part of the analysis focuses on the child. If the Department can meet
its burden of showing that the parents are unfit, it must then prove, by a preponderance of
evidence that termination is in the best interest of the child. RCW 13.34.190(1)(b). In re
Welfare of A.B., 168 Wn.2d 908, 911-12, 232 P.3d 1104 (2010).
In this case, both parents claim that the Department failed to prove that the parents
were unfit. More specifically, they each allege that the State failed to prove that the
Department had provided all necessary services to the parents. One of the six statutory
elements in a termination proceeding is proof that the Department has offered all
necessary services capable of correcting the specific parental deficiencies within the
foreseeable future. RCW 13.34.180(1)(d). “The Department has a statutory obligation to
provide all the services ordered by the permanency plan, as well as ‘all necessary
services, reasonably available, capable of correcting the parental deficiencies within the
foreseeable future.’” In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75
(2016) (quoting RCW 13.34.180(1)(d)). The term “‘necessary services’” has been
16 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
defined to mean “those services ‘needed to address a condition that precludes
reunification of the parent and child.’” Id. at 480 (quoting In re Dependency of A.M.M.,
182 Wn. App. 776, 793, 332 P.3d 500 (2014)).
B. Application to Father’s Case
For the first time on appeal, the father argues that housing assistance was a
necessary service because his lack of stable housing was preventing him from
reunification with his daughter. During trial, social worker Avril Desalme testified that
the father would need to do several things before she would support reunification with
Z.M.Y. These included:
Full engagement; participation and completion of his sexual deviancy treatment; addressing his substance use, which has been an issue since the beginning of this dependency; some stability and clean time; housing. Allegations—there have been allegations throughout this dependency on [father], ah, sexual allegations, so those not happening anymore.
RP at 25-26. On appeal, the father focuses on Ms. Desalme’s mention of housing to
argue that his lack of stable housing prevented reunification so housing assistance was a
necessary service that the Department did not provide.
The father’s argument fails for several reasons. First, housing assistance is
generally not one of the services provided by the Department. As noted above, the
Department must prove that it provided all services ordered by the permanency plan as
well as those necessary to address a condition that precludes reunification. K.M.M., 186
Wn.2d at 480. Since housing assistance was not ordered in the father’s dependency, we
17 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
must decide whether these services were nonetheless necessary to reunify the father and
child.
Housing assistance is generally not a service provided during a dependency.
Remedial services are those services available in a dependency action that facilitate the
reunification of the parent and child in a safe and timely manner. RCW 13.34.025(2)(a).
“Housing assistance” is specifically precluded from the definition of remedial services:
“For purposes of this chapter, ‘housing assistance’ is not a remedial service or family
reunification service as described in RCW 13.34.025(2).” RCW 13.34.030(13).
However, if homelessness is a primary factor preventing reunification, the court may
order some form of housing assistance. RCW 13.34.138(2)(c)(i); Washington State Coal.
for the Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 901, 949 P.2d 1291
(1997).
In this case, it is clear from the evidence, and the trial court’s findings, that lack of
housing was not the primary parental deficiency that prevented reunification with the
child. Instead, the father’s ongoing pattern of sexual deviant behavior along with his
failure to engage in sex offender treatment and substance abuse treatment were the
primary concern for the trial court. Providing the father with housing assistance would
not have remedied these deficiencies.
The father also assigns error to several of the trial court’s findings that he
continues to engage in a pattern of sexually deviant behavior that leaves the child in
18 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
grave danger of sexual abuse by the father. More specifically, the father argues that there
is insufficient evidence that his sexual behavior was deviant or that he sexually abused
Z.M.Y. The trial court made the following relevant findings:
4. The father is a convicted sex offender, currently designated as a level 3 sex offender.
5. There has been presented clear, cogent and convincing evidence that the father has engaged in an ongoing pattern of sexually deviant behavior which resulted in the initiation of the dependency action and which has continued during the pendency of the dependency process.
6. The father has failed to comply with sex offender treatment offered by The Department and has been discharged from a qualified sex offender treatment program due to lack of attendance.
7. The father has not followed through with substance abuse treatment and testimony provides clear, cogent and convincing evidence that he is an unrehabilitated polydrug abuser.
8. Reliable reporters have described actions by this child that are sexual in nature and unusual for a child of her age.
9. A counselor with specialized training and experience in the area of sexual abuse testified that the sexualized acting out exhibited by this child was evidence of prior sexual abuse.
10. Testimony has been presented that the father engaged in inappropriate sexual activity or displays in the presence of this child and an older minor child step-sister and that he has been sexually inappropriate with a number of other female individuals.
11. The child has twice been removed from the care and custody of the mother based on her unwillingness or inability to protect the child from the father.
Clerk’s Papers at 140-41.
19 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
On review, “[t]he court’s factual findings must be upheld if supported by
substantial evidence from which a rational trier of fact could find the necessary facts by
clear, cogent, and convincing evidence.” In re Dependency of K.S.C., 137 Wn.2d 918,
925, 976 P.2d 113 (1999). Evidence is substantial if it is sufficient to persuade a fair-
minded person of the truth of the fact at issue. S.J., 162 Wn. App. at 881. “Clear, cogent
and convincing evidence exists when the evidence shows the ultimate fact at issue to be
highly probable.” K.S.C., 137 Wn.2d at 925. “The trial judge has the advantage of
having the witnesses before him or her, and deference to the findings is of particular
importance in deprivation proceedings.” Id. Reviewing courts may not decide the
credibility of witnesses or reweigh the evidence. In re Dependency of A.V.D., 62 Wn.
App. 562, 568, 815 P.2d 277 (1991).
Contrary to the father’s argument on appeal, these findings are supported by
substantial evidence. The father had been previously convicted of sexual abuse of a child
under 16 in Idaho, and at the time of trial was a level three sex offender. The dependency
action commenced because Z.M.Y.’s older sister reported that the father was
masturbating under a blanket with Z.M.Y. in his arms. There was also significant
evidence that the father exhibited highly sexualized behavior and was sexually aggressive
with numerous females, including M.M.’s friends. During the father’s last visit with
Z.M.Y., the supervisor observed him pulling Z.M.Y. back on his lap and when Z.M.Y.
was finally able to get away, the father exhibited a visible erection. This evidence
20 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
supports the trial court’s findings that the father was continuing to engage in an ongoing
pattern of sexual deviant behavior.
The father also challenges the trial court’s finding that he had sexually abused
Z.M.Y. The court found that Z.M.Y. exhibited sexualized behavior that was
uncharacteristic for a child this age and at least one counselor testified that this was
evidence of prior sexual abuse. Substantial evidence supported these findings.
During several forensic interviews, the child disclosed that the father had touched
her on her privates and did “yuckies” or “uckies.” She exhibited uncharacteristic
sexualized behavior, like public masturbation, and told people she learned this behavior
from her parents. While one of the State’s sexual assault therapists testified that sexual
behavior “can be” evidence that a child has been abused, after interviewing Z.M.Y., this
expert firmly believed that she had been abused by the father.
The father points out that he was never charged with a crime, and argues that if the
allegations do not meet the threshold standard of probable cause, they cannot meet the
more exacting burden of clear, cogent, and convincing evidence. Several of the State’s
witnesses testified that they believed the father had abused the child. Detective Bryon
Denny indicated that charges would not be filed because the young child could not
pinpoint the time, jurisdiction, or specific nature of the allegations. While these elements
are necessary for a criminal charge, they are not necessary for a termination trial to
determine whether a parent abused a child.
21 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
Finally, the father argues that there was no evidence his behavior had not been
remedied at the time of trial, or that it prevented him from providing for the child’s basic
needs. The State presented evidence that the father had been ordered to complete a
sexual deviancy evaluation and follow any recommended treatment. When the father
finally appeared for an evaluation, he was found to be a moderate risk for acting out
sexually (assuming he was compliant with treatment) while less amenable to sex offender
treatment than the average examinee. In October, the father began treatment, attended
sporadically over a few months, and was discharged in June for lack of attendance.
The father correctly notes that his parenting deficiencies must render him
incapable of meeting Z.M.Y.’s basic needs to warrant termination. However, this means
“providing the child with ‘basic nurture, health, or safety,’” which would include not
subjecting her to sexual abuse and displays of sexual activity. In re Welfare of A.B., 181
Wn. App. 45, 61, 323 P.3d 1062 (2014). The father’s sex offender therapist testified that
it would take two years of therapy for the father to complete treatment. Two years is not
the “near future” for an eight-year-old child who has spent half her life in foster care.
Finally, the father argues that the Department failed to prove that termination of
his parental rights was in the best interest of Z.M.Y. As noted above, termination is a
two-part process. If the Department proves a parent is unfit, it must then prove, by a
preponderance of evidence that termination is in the child's best interest. RCW
13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d at 911-12.
22 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
The father contends that the Department used removal as a first option instead of a
last resort and then deprived the father of meaningful opportunities to develop a bond
with Z.M.Y. The record does not support this argument. Z.M.Y. was originally placed
with the mother after being found dependent. The child was only removed after both
parents violated the order prohibiting the father from having unsupervised contact with
the child. The father was provided with supervised visits with the child, but these were
suspended when he displayed deviant behavior toward the child at a visitation. The
father was told he could resume visits if he engaged in sex offender treatment, but chose
not do so. The trial court found that Z.M.Y. was exhibiting significant behavior problems
that could be partly attributed to the ongoing dependency. The court’s conclusion that
termination was in the best interest of Z.M.Y. was supported by the court’s findings and
the evidence at trial.
There is substantial evidence in the record to support the trial court’s finding that
the father was unfit to parent Z.M.Y. and that termination was in her best interest.
C. Application to Mother’s Case
The mother also appeals, arguing that the evidence does not support the trial
court’s finding that the Department offered all services ordered. Specifically, the mother
argues that she was never offered nonoffender parenting classes. Although the mother
disputed the allegations against the father, she agreed to an order of dependency that
allowed Z.M.Y. to remain with her. The order of dependency prohibited the father from
23 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
living in the home or having unsupervised contact with Z.M.Y. The order of dependency
also required the mother to complete the Harborview Center for Sexual Assault and
Traumatic Stress (nonoffender parenting program) or similar program.
The trial court found that the Department had made available to the mother all
necessary services including nonoffender sexual abuse counseling. This finding is not
supported by substantial evidence. During the trial, social worker Olga Bologova
testified that these services were originally offered in Seattle. Shortly after the
commencement of the dependency action, the parents moved to Clarkston. Ms.
Bologova testified that she contacted Quality Behavioral Health in Clarkston and made
arrangements for this agency to provide similar services to the mother.
The mother met with Katherine Troutman, a therapist at Quality Behavioral Health
one time in August 2018. Ms. Troutman testified that the purpose of the visit was to
“provide support and advocacy” to the mother. RP at 378. When asked specifically
whether she was providing services related to being a nonoffending parent, Ms. Troutman
said no. Ms. Troutman testified that she had never put together a plan for nonoffender
services, that Quality Behavior Health did not have a program for nonoffender services,
and that she was not aware of the mother ever receiving nonoffender services through
Quality Behavioral Health. Ms. Troutman testified that the mother failed to attend four
scheduled appointments with her, but these were for “therapy,” appointments. RP at 380.
24 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
The Department argues that despite Ms. Troutman’s testimony, the missed therapy
sessions at Quality Behavioral Health were intended to provide services similar to a
nonoffender program. It is true that nonoffender services did not need to be provided in a
formal program but could be provided through individual therapy sessions. And it is also
true that Quality Behavioral Health provides services to victims and survivors of sexual
assault that are similar to a nonoffender program. But it is not clear, cogent and
convincing that Ms. Troutman was actually providing substitute nonoffender services to
the mother. Ms. Troutman clearly did not believe so.
The Department also argues that providing the mother with nonoffender services
would have been futile. The Department is excused from offering or providing services
otherwise required if doing so would be futile. In re Parental Rights to I.M.-M., 196 Wn.
App. 914, 924, 385 P.3d 268 (2016). It is well settled that the statutory requirement to
offer or provide corrective services does not contemplate an entirely one-way process,
and “a parent’s unwillingness or inability to make use of the services provided excuses
the state from offering extra services that might have been helpful.” In re Dependency of
Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988) (citing In re Welfare of Ferguson,
41 Wn. App. 1, 6, 701 P.2d 513 (1985)).
In this case, the Department argues that providing nonoffender services to the
mother was futile because the mother insisted that the father was not doing anything
wrong and continued her relationship with the father even after being told of its
25 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
detrimental effects on Z.M.Y. This is a circular argument. The whole purpose of
nonoffender services is to educate a parent on the signs of abuse, the long-term impacts
of this abuse on a child, and how to intervene and protect the child. It may very well be
true that nonoffender services will do nothing to change the mother’s perception, but
“services are not futile just because they are not guaranteed to succeed.” In re Parental
Rights to B.P., 186 Wn.2d 292, 322, 376 P.3d 350 (2016).
The State also contends that the services are futile because the mother failed to
appear for four scheduled sessions with Ms. Troutman. Typically, a pattern of
unwillingness to engage is sufficient to establish that offering additional services was
futile. Ramquist, 52 Wn. App. at 861. As noted above however, there is no evidence that
Ms. Troutman was providing nonoffender services. Nor is there evidence that the mother
was told that Ms. Troutman’s therapy sessions would qualify as nonoffender services.
We cannot find that the mother was unwilling to engage in services when there is no
evidence that she was aware that those services were being offered.
CONCLUSION
We recognize that reversing the termination order against the mother will have
detrimental effects on Z.M.Y. Placing the child back in a dependency proceeding will
continue to bring uncertainty and instability to this child. Before terminating a parent’s
rights, however, we must be convinced that every effort has been made to remedy the
parent’s deficiencies.
26 No. 37674-5-III (Consol. with 37701-6-III) In re the Dependency of Z.M.Y.
We hold that the trial court’s finding, that the Department provided the mother
with nonoffender services as ordered by the dependency order, is not supported by
substantial evidence. Without this finding, the State cannot meet its burden of proof and
the termination order as to the mother must be reversed. Because we reverse the
mother’s termination, we need not address her allegation that the Department also failed
to provide the mother with substance abuse treatment. This issue can be addressed by the
parties as part of the dependency below.
Affirm in part, reverse in part.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
WE CONCUR:
______________________________ Pennell, C.J.
______________________________ Fearing, J.