In the Matter of the Dependency of: O.V.H. and E.J.H. ( 2019 )

FILED
NOVEMBER 5, 2019
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 re Dependency of ) No. 36532-8-III
) (consolidated with
O.V.H. ) No. 36533-6-III)
)
_________________________________ )
In re Dependency of ) UNPUBLISHED OPINION
)
E.J.H. )
)
LAWRENCE-BERREY, C.J. — A mother appeals the trial court’s determination that
her two youngest children are dependent. Because substantial evidence supports the trial
court’s findings, and because those findings support the trial court’s conclusion of
dependency under RCW 13.34.030(6)(c), we affirm.
FACTS
In 2016, Kalyn1 and Sean2 were married and living together. Kalyn’s young
daughter, O.V.H., also lived with them. O.V.H.’s father is incarcerated for rape of a
1
Because the record is sealed to protect the identity of minors, we use the first
names of adult relatives and the initials of their children to ensure the minors’ anonymity.
The transcript spells the father’s name “Shawn,” but pleadings spell his name
2
“Sean.” Believing the latter is correct, we spell his name “Sean.”
No. 36532-8-III; No 36533-6-III
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child. Kalyn has two twin children, A.H. and E.H. The twins are older than O.V.H. and
lived with Kalyn, Sean, and O.V.H every other week.
In August 2016, A.H. and E.H. told Kalyn that Sean had been molesting them.
Kalyn obtained a confession from Sean. Sean was arrested and released on bail.
In September 2016, Stacy Foster, a Child Protective Services (CPS) social worker
with the Department of Children, Youth and Family Services (the Department), received
an intake regarding Kalyn, A.H., E.H., and O.V.H. This first intake was regarding Sean’s
sexual abuse of Kalyn’s twin daughters. Sean admitted to Ms. Foster to abusing the
children on multiple occasions.
The next month, Ms. Foster received a second intake because of allegations of
negligent treatment by Kalyn, allegations that Kalyn was abusing pills, and allegations
that Kalyn allowed Sean back into the home. Kalyn denied the allegations. Kalyn told
Ms. Foster that she was not sure she wanted to leave Sean and she relied on him
financially and was supporting him through his treatment. Kalyn also told Ms. Foster that
Sean would not do it again and that it was a one-time thing and he was getting help. Ms.
Foster believed that Kalyn did not understand the risk Sean posed to her children and
recommended she participate in individual counseling. Kalyn agreed, provided she could
choose the counselor.
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Kalyn chose to go to individual counseling with Lindsey Vaagen, a mental health
therapist. After an initial assessment, Ms. Vaagen recommended that Kalyn participate in
individual counseling services. Ms. Vaagen counseled Kalyn for about six months. Ms.
Vaagen diagnosed Kalyn with adjustment disorder—a clinical disorder that usually shows
symptoms of racing thoughts, anxiety, and difficulty sleeping and concentrating. Kalyn
began learning how to set boundaries with Sean so as to move forward in their
relationship. During this time, Kalyn became pregnant. Kalyn’s insurance stopped
paying for counseling, and Kalyn stopped participating. Ms. Vaagen believed that Kalyn
was still experiencing symptoms of adjustment disorder and she needed more individual
counseling.
In May 2017, Sean pleaded guilty to two counts of child molestation. The court
revoked bail and Sean remained in jail pending sentencing.
In July 2017, Timothy Bernhardt, a mental health professional, evaluated Sean to
determine whether he qualified for treatment under a special sex offender sentencing
alternative (SSOSA) and, if so, what treatment was required. The evaluation revealed
Sean’s prior use of pornography, including an instance of child pornography, an instance
of bestiality, and multiple other instances of minor female sexual contacts. Sean also
disclosed that he had molested his biological daughter. This occurred prior to Sean and
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Kalyn’s marriage, when Sean’s daughter was around seven or eight years old. Mr.
Bernhardt diagnosed Sean with a deviant arousal to prepubescent females, distorted
thinking in terms of sexuality with children, an addiction to pornography, and pedophilic
disorder. He classified Sean as having a moderate risk for reoffending.
Mr. Bernhardt contacted Kalyn and told her what Sean had disclosed during the
evaluation. Kalyn was shocked that Sean had repeatedly molested her twins. She also
said she was unaware that Sean had molested his own biological daughter.
In August 2017, Sean received a SSOSA sentence with community-based
treatment. The sentence prohibited Sean from having unsupervised contact with anyone
under the age of 18. Supervised contact was permitted, provided the supervisor was both
aware of Sean’s offending conduct and was approved by the Department of Corrections
and Sean’s therapist. The Department of Corrections monitored Sean’s compliance with
his sentencing conditions by polygraph every six months.
In October 2017, Kalyn gave birth to E.J.H., a daughter. Sean is the father of
E.J.H. The Department assigned Sylvia Zarate, a CPS investigator, to O.V.H. and E.J.H.
Prior to E.J.H.’s birth, Kalyn used methamphetamine and heroin and was prescribed
suboxone to help reduce addiction withdrawals and cravings. Part of Ms. Zarate’s job
was assessing child safety and determining whether a child was safe under a parents’
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care. When Ms. Zarate met with Kalyn, she stated that E.J.H. was the product of a one-
time thing with Sean and that she had no plans to get back together with him. Yet, Sean
told Ms. Zarate that Kalyn called him every night. During her investigation of the case,
Ms. Zarate received reports that Kalyn was allowing unknown and unauthorized
individuals to stay in her home and there was concern about criminal activity there.
Kalyn denied anyone was living there at first. Later, Kalyn requested help to remove
Keith Cope from her home—an individual she allowed to live there.
In the spring of 2018, Ms. Zarate received a report that Kalyn let a friend take
A.H., E.H., and O.V.H. to the park for an Easter egg hunt, and Kalyn’s friend left the
children at the park. Kalyn’s friend was not authorized by the Department to supervise
the children. Abigail Dean, who sometimes babysat the children, found the children in
the park without an adult.
In April 2018, the Department filed a dependency petition for O.V.H. and E.J.H.
The Department’s reasons for filing the petition were that Kalyn failed to follow multiple
safety plans, failed to engage in substance abuse treatment consistently, missed random
urinalysis, was dishonest about who was in her home, and the Department’s attempts to
address these issues had failed.
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At the shelter care hearing, the Department recommended that Kalyn engage in a
drug and alcohol assessment, random urinalysis tests, and a mental health assessment.
Kalyn agreed to these recommendations. Soon after the shelter care hearing, O.V.H. and
E.J.H. were placed with Sean’s parents. Kalyn also moved in with Sean’s parents. In
May 2018, Sean completed the jail portion of his SSOSA sentence.
In June 2018, Sean stipulated that E.J.H. was a dependent child. In August 2018,
O.V.H.’s father similarly stipulated. Kalyn contested that her two youngest children were
dependent. A dependency trial occurred in November 2018.
Testimony at trial largely focused on whether Kalyn could set appropriate
boundaries to protect her two youngest children from the risk of Sean reoffending.
Because Kalyn assigns error to 11 of the trial court’s 31 findings of fact, we discuss the
testimonies in some detail.
A. WITNESSES HELPFUL TO KALYN’S POSITION
Kalyn, O.V.H. and E.J.H. lived with Sean’s parents for several months prior to the
dependency trial. Sean’s parents are Karen and David.
Karen testified that O.V.H. and E.J.H. were healthy and well taken care of. If Sean
was allowed future visitations, Karen thought they would set boundaries such as no diaper
changes, no bathing the children, no going into their rooms, and not being alone with
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them. She believed these boundaries were a practical way to keep Sean from reoffending
because those kinds of things Kalyn usually did and Sean would not want to do them.
Karen testified that if the Department was no longer involved, they could make sure the
children would be safe and Sean would never be alone with them. She envisioned
everybody living under the same roof in the future.
David also testified that O.V.H. and E.J.H. were doing well in their home. David
said he would be capable of setting boundaries with his son Sean. He described the
boundaries as requiring Sean to complete his sex offender counseling, he could not be
alone with the children, and he could not change their diapers. David testified that the
family could keep O.V.H. and E.J.H. safe without the Department being involved.
Pastor Scott Liddell testified that he had provided counseling to Kalyn and Sean,
including marriage counseling. They discussed setting boundaries and Mr. Liddell
believed Kalyn was capable of setting appropriate boundaries.
Kalyn testified that she had no plans for a relationship with Sean. Instead, she said
her priority would be to take care of her children, keeping them safe, setting boundaries,
and getting through school and treatment. Kalyn testified that the boundaries she would
set for Sean would be no unsupervised contact with the children, no being alone in the
same room with the children, no giving them baths, no changing diapers or clothes, and
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no wrestling with them. She also said there was no way to prevent Sean from reoffending
again.
John Colson provided sex offender treatment to Sean. At the time of trial, Sean
had just progressed beyond the first phase of treatment, stabilization, and started the
second phase, prevention of reoffending. Mr. Colson twice met with Kalyn, both times
with Sean. Mr. Colson found Kalyn to be assertive and doing what she needed to do. Mr.
Colson testified that he believed Kalyn was capable of setting boundaries and keeping
O.V.H. and E.J.H. safe.
Mr. Colson admitted he had not worked with Kalyn on relationship issues with
Sean or worked with her on how to have a safe household and to monitor her children and
Sean. He outlined the skills he could provide Kalyn in individual counseling: identifying
risky situations, how to keep her children safe, and what to look for in a high-risk
situation with a partner. He testified he had not worked on a relapse prevention plan with
Sean or Kalyn. He explained that Sean had not reached that part of treatment and that he
would not work on such a plan until he believed the family was ready to reunite.
Mr. Colson believed that the counseling and monitoring required by Sean’s
SSOSA sentence would be similar if not more stringent than counseling and monitoring
provided by a dependency order. Partly for this reason, he did not believe that a
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dependency order was necessary. Mr. Colson did not explain how he could require Kalyn
to engage in and complete counseling outside of a dependency order.
B. WITNESSES HELPFUL TO THE DEPARTMENT’S POSITION
The Department assigned Mary Flores, a social worker, to the case. Ms. Flores
was not concerned about Kalyn’s parenting, but worried about her ability to keep her
children safe. Ms. Flores believed Kalyn was not capable of setting boundaries with Sean
because of her continued contact with him. Ms. Flores’s involvement in the case ended in
July 2018.
Joseph Villanueva, a social worker with the Department, was assigned to O.V.H.
and E.J.H.’s case. Mr. Villanueva recommended individual counseling for Kalyn. Mr.
Villanueva testified that counseling would help Kalyn with her adjustment disorder,
would give her insight to how her romantic relationship with Sean affected the children,
and would help her keep the children safe. This was important to Mr. Villanueva for two
reasons. First, Sean stated in his polygraph that he was romantically involved with Kalyn
since his release from jail in May 2018. Second, Kalyn minimized the risk that Sean
posed to the children and told him that Sean would never do it again. Mr. Villanueva
believed that Kalyn was not capable of safely parenting O.V.H. and E.J.H. because of her
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No. 36532-8-III; No 36533-6-III
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ongoing minimization of what happened, her inability to understand the risks posed by
Sean, and her romantic relationship with Sean.
Taylor Kennedy provided counseling to Kalyn through the Incredible Years
program. The Incredible Years program helps improve parents’ relationships with their
children by showing them nonviolent discipline strategies and teaches parenting skills and
how to manage behavior. Throughout the program, Ms. Kennedy continued to have
concerns about Kalyn’s relationship with Sean. Kalyn minimized Sean’s risk to the
children by mistakenly saying that Sean was a low risk offender. Ms. Kennedy was
concerned about the children’s safety if Kalyn and Sean’s romantic relationship
continued. Although Kalyn informed Ms. Kennedy of the boundaries she would set with
Sean, Ms. Kennedy believed it would be nearly impossible to maintain those boundaries
while being in a romantic relationship with someone or living with someone.
Dulce Morales was the guardian ad litem for O.V.H. and E.J.H. She testified it
was in the best interests of O.V.H. and E.J.H. to find them dependent because there was a
high risk of Sean being around the children and because Kalyn could not yet set specific
boundaries. She believed that Kalyn needed to receive additional counseling to enable
her to set specific boundaries. She emphasized that outside of a dependency, the needed
counseling could not be required.
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C. TRIAL COURT’S DECISION
The trial court entered written findings that specifically found: Sean is addicted to
child pornography and has a sexual attraction to prepubescent females, Kalyn minimized
the extent of Sean’s predatory behavior, Kalyn’s proposed boundaries are not practical,
Kalyn, Karen, and David have a poor understanding of the dynamics of Sean’s crime, and
Kalyn has a lack of insight to the peril posed by Sean to O.V.H. and E.J.H. The court also
found that Kalyn, Karen, David, and Mr. Colson were unable to provide specific
boundaries that would adequately address the risk posed by Sean. The court did not find
Kalyn or Sean credible about their professed indecision of a future relationship, but
instead found that they planned on Sean reunifying with Kalyn and her two youngest
children. The court was unpersuaded by Mr. Colson’s testimony that Kalyn was capable
of setting appropriate boundaries.
The trial court determined that Kalyn’s lack of insight into the safety risk
posed by Sean made her incapable of adequately caring for and protecting O.V.H. and
E.J.H. such that the children are in danger of substantial damage to their psychological or
physical development. It thus concluded that O.V.H. and E.J.H. were dependent under
RCW 13.34.030(6)(c).
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Kalyn timely appealed to this court. We granted accelerated review, and the case
was submitted without oral argument.
ANALYSIS
FINDING OF DEPENDENCY
Kalyn challenges 11 of the trial court’s 32 findings of fact. She also
challenges the trial court’s legal conclusion that O.V.H. and E.J.H. are dependent under
RCW 13.34.030(6)(c). We first address the challenged findings of fact and then address
the challenged legal conclusion.
GENERAL PRINCIPLES
“‘A parent’s right to control and to have the custody of [her] children is a
fundamental civil right which may not be interfered with without the complete protection
of due process safeguards.’” In re Dependency of K.N.J., 171 Wash. 2d 568, 574, 257 P.3d
522 (2011) (quoting Halsted v. Sallee, 31 Wash. App. 193, 195, 639 P.2d 877 (1982)). In
Washington, termination of parental rights is a three-step process. Id. at 576. First, there
must be a hearing to determine if the child is dependent under RCW 13.34.030(6). Id.
Second, the Department orders remedial measures to alleviate any problems that
prompted the State’s intervention. Id. Finally, in order to terminate the parent-child
relationship, the State must prove all six elements under RCW 13.34.180(1) and show
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termination is in the best interests of the child under RCW 13.34.190(1)(b). Id. at 576-77.
This case involves review of the first step in the process—whether O.V.H. and E.J.H.
were dependent under RCW 13.34.030(6).
In order to make a finding of dependency, a trial court must find the child meets a
statutory definition of “dependent” under RCW 13.34.030(6)(a)-(c). Id. at 576. Here, the
trial court found dependency under RCW 13.34.030(6)(c). RCW 13.34.030(6)(c) defines
a “dependent child” as
any child who:
....
(c) Has 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 . . . .
“When evaluating evidence to determine whether a child is dependent, trial courts
have broad discretion and considerable flexibility to reach ‘a decision that recognizes
both the welfare of the child and parental rights.’” In re Dependency of Ca.R., 191 Wn.
App. 601, 608, 365 P.3d 186 (2015) (internal quotation marks omitted) (quoting In re
Dependency of Schermer, 161 Wash. 2d 927, 952, 169 P.3d 452 (2007)). On appeal, the
proper review is to determine whether substantial evidence supports the trial court’s
findings of fact and whether those findings support the conclusions of law. Id. Evidence
is substantial if, when viewed in the light most favorable to the prevailing party, a rational
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trier of fact could find the fact by the applicable standard of proof: preponderance of the
evidence. In re Dependency of E.L.F., 117 Wash. App. 241, 245, 70 P.3d 163 (2003). The
appellate court does not reweigh evidence or assess credibility. Ca.R., 191 Wash. App. at
609.
THE CHALLENGED FINDINGS
Finding of Fact 2.2.14:
Kalyn challenges a small portion of finding of fact 2.2.14 that finds Sean is
addicted to child pornography. Kalyn argues that Sean admitted in the SSOSA evaluation
to being addicted to pornography and having watched child pornography 10 years ago.
We agree with Kalyn. Sean never admitted to being addicted to child pornography and
there is no evidence to support this finding.
Finding of Fact 2.2.17:
Kalyn challenges the entire finding of fact 2.2.17, which reads: “The Mother
minimized the extent of her husband’s predatory behavior, beginning in at least the Fall of
2016 when Mother told CPS Investigator Staci Foster that she intended to continue her
relationship with the Father shortly after he had molested her children.” Sealed Clerk’s
Papers (CP) at 531, 1189.
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There was substantial evidence presented at trial to support this finding. Kalyn
minimized Sean’s predatory behavior beginning a few weeks after the incident when she
let him back into the home. When confronted about it, Kalyn told Ms. Foster that Sean
will not do it again and it was a one-time thing. Kalyn’s minimization of Sean’s actions
continued even after she learned A.H. and E.H. were not his first victims—that he
confessed to Mr. Bernhardt that his own biological daughter was his first victim.
In July 2018, Kalyn told Mr. Villanueva that Sean would never do this again and it
was a one-time thing. While doing the Incredible Years program, Kalyn stated to Ms.
Kennedy that she believes Sean is a low risk offender. Kalyn also admitted that she
believes there is no way to prevent Sean from reoffending. There was substantial
testimony presented at trial that Kalyn minimized Sean’s predatory behavior—calling it a
one-time thing even though it has happened more than once, stating he will never do it
again, and admitting there is no way to prevent him from reoffending, yet continuing to
have a relationship with him.
Findings of Fact 2.2.18, 2.2.19:
Kalyn challenges the entire finding of fact 2.2.18, which reads: “The Court did not
find Mother or Father credible with regard to their indecisiveness about the future of their
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relationship. The Court found that Mother ultimately plans to cohabitate with Father and
[E.J.H.] and [O.V.H.].” Sealed CP at 531, 1189.
She also challenges a portion of finding of fact 2.2.19, which reads: “However, the
Court did not find this persuasive.” Sealed CP at 531, 1189.
There was substantial evidence that Kalyn planned to reunite the family with Sean.
One month after Sean admitted to molesting A.H. and E.H., Kalyn let Sean back into the
home. Kalyn told Ms. Foster that she was not sure she wanted to leave Sean and she
relied on him financially. Kalyn continued to have contact with Sean after his arrest.
Sean told Ms. Zarate that Kalyn called him every night. Sean and Kalyn were
romantically involved since he was released from jail. They were receiving marriage
counseling from their church pastor Mr. Liddell. Karen also envisioned everyone living
under the same roof. Any rational trier of fact could have reasonably inferred that Kalyn
and Sean planned to reunite and cohabitate with O.V.H. and E.J.H.
We decline to address Kalyn’s other challenges to the finding of fact 2.2.18 and
her challenge to the portion of finding of fact 2.2.19. These findings were credibility
determinations made by the trial court. The appellate court does not reassess credibility.
Ca.R., 191 Wash. App. at 609.
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Findings of Fact 2.2.20, 2.2.21, 2.2.22:
Kalyn challenges multiple findings related to ability to propose and implement
appropriate boundaries to protect the children from Sean.
First, she challenges the entire finding of fact 2.2.20, which reads: “The Court
found that testimony regarding boundaries that would keep Father from victimizing these
children were nonspecific and supported Mother’s continued minimization of Father’s
crimes.” Sealed CP at 531, 1190.
Second, Kalyn challenges the entire finding of fact 2.2.21, which reads:
Mother unreasonably believes that Father’s predatory nature could be
curbed through boundaries, which would prevent victimizing Mother’s
children. The Court found Mother’s proposed boundaries such as[:] not
letting Father change diapers; not allowing Father in children’s bedrooms;
and supervising all his contact with the children; were found not practical,
but instead fanciful.
Sealed CP at 532, 1190.
Finally, Kalyn challenges the entire finding of fact 2.2.22, which reads: “Mother,
placement, nor Father’s current SSOSA counselor, John Colson were able to provide
specific boundaries that would address the safety risk posed by Father.” Sealed CP at
532, 1190.
There was substantial evidence presented at trial for a rational trier of fact to find
that Kalyn’s proposed boundaries were nonspecific, not practical, and would not address
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the safety risk posed by Sean. Mr. Colson testified that he believed Kalyn was capable of
setting boundaries but gave no testimony about what those boundaries should be or how
to enforce them. Mr. Colson also said that he has yet to develop a relapse prevention plan
with Sean. Mr. Liddell also stated he believes Kalyn is capable of setting boundaries but
gave no more specific explanation of those.
Karen testified that Sean’s boundaries would be no changing diapers, no bathing
the children, no going into their rooms, and no being alone with them. She stated it was a
practical way to keep Sean from reoffending because those are the kinds of things the
mother usually does anyway, and Sean would not want to do those things in the first
place. David testified that Sean must complete his sex offender counseling, he cannot be
alone with the children, and he cannot change their diapers. Kalyn testified to similar
boundaries: no unsupervised contact, no bathing the children, no changing diapers, no
changing clothes, and no wrestling with the children.
Kalyn relayed these boundaries to Ms. Kennedy during the Incredible Years
program. However, in Ms. Kennedy’s opinion, those boundaries would be nearly
impossible to maintain while romantically involved with someone or residing with that
person.
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We conclude there was substantial evidence for the trial court to find the
boundaries proposed by Kalyn were nonspecific, impractical, and would not address the
risk posed by Sean.
Findings of Fact 2.2.25, 2.2.26, 2.2.28:
Kalyn challenges multiple findings that she lacked insight to the danger posed by
Sean to the children.
First, Kalyn challenges the entire finding of fact 2.2.25, which reads: “Mother’s
unwillingness to realize the danger posed to the children by Father, rendered the two
[children] dependent.” Sealed CP at 532, 1190.
Second, Kalyn challenges the first half of finding of fact 2.2.26, which reads:
“Mother lacks insight into peril posed by Father where the above named children are in
the same demographic as Father’s previous and preferred victims.” Sealed CP at 532,
1190. Kalyn does not challenge the second half of the finding: “Mother believes there is
no way to prevent Father from reoffending, but she would be willing to take the chance.”
Sealed CP at 532, 1190.
Next, Kalyn challenges the entire finding of fact 2.2.28, which reads: “Mother’s
lack of insight into the safety risk posed by Father makes her incapable [of] adequately
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caring and protecting her children such that the children are in danger of substantial
damage to their psychological or physical development.” Sealed CP at 532, 1191.
A rational trier of fact could make the aforementioned findings. Mr. Villanueva
testified that Kalyn needed counseling to understand how her relationship with Sean
could affect the children and to understand the risks Sean poses. Ms. Kennedy echoed
that opinion.
Kalyn’s inability to recognize the danger Sean poses to the children is evident in
her continued minimization of Sean’s actions. As found and supported in finding of fact
2.2.17, Kalyn continuously minimized Sean’s actions. Even though the SSOSA
evaluation revealed that Sean had once engaged in bestiality and repeated sexual contact
with prepubescent children, Kalyn continued her relationship with Sean and desires
reunification. She characterized Sean as a low risk offender even though the evaluation
concluded Sean was a moderate risk to reoffend. She continued to state that Sean would
not do it again, even after the SSOSA evaluation found Sean had a deviant arousal to
prepubescent females. O.V.H. and E.J.H. are prepubescent females. Sean already
molested A.H. and E.H., prepubescent females. Yet, Kalyn wants reunification and does
not recognize the threat.
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Possibly the most glaring evidence of Kalyn’s lack of insight is the trial court’s
uncontested finding 2.2.26: “Mother believes there is no way to prevent Father from
reoffending, but she would be willing to take the chance.” Sealed CP at 532, 1190.
Kalyn’s desire to reunite the family at the possible peril of her own children is fatal
evidence of her inability to recognize the dangers and to adequately protect her children.
Finding of Fact 2.2.27:
Kalyn challenges the entire finding of fact 2.2.27, which reads: “The Court found
that Mother may be able to gain insight as to the risk posed by the Father by working with
a counselor.” Sealed CP at 532, 1190.
The evidence at trial supports this finding. Mr. Villanueva testified that individual
counseling would help Kalyn with her adjustment disorder, would give her insight about
how her relationship with Sean could affect the children, and how she could keep the
children safe. Although Kalyn had completed counseling with Ms. Taylor, it is evident
that she still lacked necessary insight on the dangers posed by Sean.
THE CHALLENGED LEGAL CONCLUSION
Kalyn contends the trial court erred by determining that O.V.H. and E.J.H. were
dependent under RCW 13.34.030(6)(c). As noted above, a dependent child under that
subsection is one who “[h]as no parent, guardian, or custodian capable of adequately
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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.”
RCW 13.34.030(6)(c).
Kalyn argues she realizes the risk that Sean poses, will take substantial steps to
prevent future abuse, and although Sean may be a bad choice for a partner, it is an
insufficient reason for the State to interfere with her family. In making this argument, she
relies on In re Dependency of M.S.D., 144 Wash. App. 468, 182 P.3d 978 (2008).
In M.S.D., the mother of a seven-year-old child lived with her boyfriend, who was
convicted of assault and criminal mistreatment of his own infant child 10 years earlier.
The trial court found the child dependent based on former RCW 13.34.030(5)(b) (2003),
now RCW 13.34.030(6)(b). That provision defines a dependent child as one who is
“abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for
the care of the child.” RCW 13.34.030(6)(b). We reversed the finding of dependency
because substantial evidence did not show that the boyfriend’s old conviction constituted
a clear and present danger to M.S.D. We held evidence that a parent had lived for several
years with a partner who had a prior conviction of assaulting his or her infant child was
insufficient, by itself, to establish that the mother’s child had been neglected within the
meaning of former RCW 13.34.030(5)(b). There, the boyfriend had not physically abused
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No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH
M.S.D. or any other child during the period of cohabitation, the mother was able to
protect M.S.D., and the mother understood the seriousness of her boyfriend’s prior
conviction.
M.S.D. is distinguishable. First, the trial court here found O.V.H. and E.J.H.
dependent on a different subsection of RCW 13.34.030(6). Second, the boyfriend in
M.S.D. had not physically harmed one of the mother’s children. Here, Sean repeatedly
molested Kalyn’s prepubescent twin daughters. Third, the boyfriend in M.S.D. had not
recently assaulted a child. Here, Sean recently molested Kalyn’s twin daughters. Fourth,
the mother in M.S.D. understood the seriousness of her boyfriend’s crimes and was
capable of protecting her child. Here, Kalyn minimized the seriousness of Sean’s crimes
and is not capable of protecting her children.
The parties do not contest that if Sean were to sexually molest O.V.H. or E.J.H., it
would result in “substantial damage to the child’s psychological or physical
development.” RCW 13.34.030(6)(c). The only issue is whether the young children are
in “circumstances which constitute a danger” of being molested. RCW 13.34.030(6)(c).
Here, Sean has molested prepubescent children multiple times, is classified as a
moderate risk for reoffending, and has yet to complete SSOSA treatment. Despite their
testimonies, the trial court found that Kalyn and Sean intend for the family to reunite. In
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No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH
the recent past, Kalyn has denied that people who should not be living with her were
living with her. Her minimization of the risk that Sean poses to her young children, and
her need for additional counseling, poses an unnecessary risk that she might permit Sean
to spend time with her and her young children. And even though she plans to supervise
Sean at all times, this simply is not practical. These are circumstances that constitute a
danger that the children could be molested. For these reasons, we affirm the trial court's
determination of dependency under RCW 13.34.030(6)(c).
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.
Lawrence-Berrey, C.J.
WE CONCUR:
Pennell, J.
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