                                                                     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In re Dependency of                           )         UNPUBLISHED OPINION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
In re Dependency of OVH & EJH


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.


                                            2
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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


                                            3
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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’


                                            4
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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.




                                             5
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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


                                             6
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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


                                             7
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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


                                              8
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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




                                            9
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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.


                                           10
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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).




                                             11
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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 Wn.2d 568, 574, 257 P.3d

522 (2011) (quoting Halsted v. Sallee, 31 Wn. 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


                                             12
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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 Wn.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

                                             13
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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 Wn. App. 241, 245, 70 P.3d 163 (2003). The

appellate court does not reweigh evidence or assess credibility. Ca.R., 191 Wn. 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.




                                                14
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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




                                            15
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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 Wn. App. at 609.




                                            16
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


      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

                                             17
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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.




                                              18
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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




                                            19
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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.




                                             20
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


       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


                                             21
No. 36532-8-III; No 36533-6-III
In re Dependency of OVH & EJH


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 Wn. 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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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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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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