IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter of the Dependency of Z.M.Y. ) ) ) ) ) ) ) No. 37674

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S TAAB , J.

— A dependency case was ini tiated for Z.M.Y. in King County after her older sister reported seeing the f ather 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 m other, on the condition that the f ather have no u nsupervised 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
m other’s custody after t he family , including t he f ather, 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 insuff icient evidence to support the court’s finding that all ordered 

### FILED JUNE 1 5 , 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 37674

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2 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 F ather, but reve rse the court’s order terminating the parental rights of the m other. FACTS A. Underlying Allegations D.M. ( m other) and G.Y. ( f ather), are the parents of Z.M.Y. born in 2012. The
m other also has a teenage daughter, M.M. who is not related to the f ather an d 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 f ather was masturbating in front of the children. Specifically, M.M. reported that Z.M.Y. was awake and in the same bed as the f ather. M.M. said Z.M.Y. “appeared unsure of what was happening” and M.M. took her out of the room while the f ather continued to masturbate. Ex. P

- 3 at 2. M.M. reported, and the Seattle Police Department confirmed, that the f

ather i s 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, t he Department of Children, Youth, Families (Department) filed dependency actions against both parents. The f athe r denied the allegation. The m other did not believe this incident occurred but said she was willing to participate in a non offender parent program.No. 37674

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3 The court entered agreed orders of dependency as to the m other and f ather. At the time, Z.M.Y. was just sh y of her fourth birthday. Both dependency orders recommended that Z.M.Y. remain in the m other’s custody, on condition that the f ather not live in the home and not have contact with Z.M.Y. outside of court
- ordered visits. King County had previously entere d a protection order prohibiting contact between the f ather and Z.M.Y. that w as 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 f

ather 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 f ather was al so ordered to execute all releases of information to the Department relating to the f ather’s past criminal sex abuse case. T he f ather was to contact the Department to arrange phone or in

- person visits. The f ather was instructed to notify the Department i f he believed the services offered or provided were not adequate. The m other was also ordered to complete services, including a parenting assessment, establish paternity, complete Harborview’s “non

- offending Parenting Program or similar program,” and provi de updates about her medica l treatments if anything changed
. Ex. P

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.No. 37674

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4 A few months after the dependency orders were entered, the f ather, m other, and Z.M.Y. moved to Clarkston, Washington. Concerned that the m other was allowing the f ather to have una uthorized 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 m other and Z.M.Y. were staying, the f ather was found sleeping in the room. The hotel clerk told law enforcement that the f ather was a frequent visitor. The f ather was arrested and charged with violating the no

- contact order. Z.M.Y. was removed from the m other’s custody and placed in the custody of the child’s aunt, where she has remained throughout the dependency. B. Additional Allegations Against the F ather During the dependency, additional allegations against the f ather came to light. In addition to the incident that provoked the dependency, M.M. testified that “sex was always a topi c when [the f ather] was around.” R eport of Proceedings (R P ) at 292. When she was alone with the f

ather, he would repeatedly tell her that the m other would not have sex with him, tell her about sexual encounters with the m other, or tell M.M. how beautiful M.M. was. The f ather also hit on M.M.’s friends by telling them their bodies were beautiful and voluptuous. M.M. testified that the f ather made her feel uncomfortable but never touched her inappropriately. When she tried to stand up to the f ather, he g ot in her face and yelled at her, until the m other stepped in and pushed M.M.No. 37674

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5 out of the way, saying the f ather would hurt her. Aside from pushing her away, the
m other never protected M.M., and the m other never told him to stop. After being removed from h er m other’s custody, Z.M.Y. was placed in the custody of her aunt, Melissa Costa. Ms. Costa had known the f ather for years and knew of his status as a registered sex offender. She testified at trial that over the years she had witnessed the f

ather make s exual advances toward every female in her family. In one instance, the f

ather, while naked from the waist down, chased Ms. Costa around until she burned him with a cigarette. The f ather grabbed Ms. Costa by the throat and pushed her against a door so she punched the f ather. In another instance, the f ather’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 f ather masturbate in front of several family members. Altho ugh 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 f ather had sexually abused the child. She based her belief on statements made by Z.M.Y. along with overly sexua l behavior displayed by Z.M.Y. The child’s therapist also testified that she believed the f ather had abused Z.M.Y. Heather Cochrell works for Quality Behavior Health in Clarkston and is the program manag er for the agency’s Community Sexual Assault Program (CSAP). Ms. CochrellNo. 37674

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6 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 f ather had sexuall y 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. w as 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 m other’s custody. Z.M.Y. initially indicated that her m other had touched her butt, but then revised it to say that her f ather had touched her butt. Z.M.Y. was u nable 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 f ather had touched her in the genital area and it “bleeded” but then pointed to her arm to indica te 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 f ather “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,No. 37674

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7 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 f ather,
m other, and M.M. when they went to see the doctor, but she did not know where it occurred. She said the f

ather was on the lower bed bouncing up and down and she saw her f ather’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 f

ather had abused Z.M.Y. The following year, in July 2018, Kimberly Belton was super vising a visit between the f

ather 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 f ather. RP at 166. Z.M.Y.No. 37674

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8 was moving on and off the f ather’s lap, and Ms. Belton could see the child was becoming uncomfortable. While the f ather was pulling Z.M.Y. back on his lap, it was clear that she was trying to push away. Ms. Belton cued the f ather to l et the child get off his lap, and when Z.M.Y. got down, Ms. Belton realized that the f ather had a visible erection. As a result of this incident, the f ather’s visitations were terminated until he could show compliance wi th his sex offender treatment. Two months after the f

ather’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 coul dn’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 genita l 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 m other what happened, and she did not believe her, but her foster mom did. Z.M.Y. said the touching happened once, the f ather 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 f ather 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 sheNo. 37674

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9 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. t old the interviewer that she did not have visits with the f

ather anymore because he did bad things. Z.M.Y. again said he touched her privates over her clothes. She said the f ather came to Z.M.Y.’s bed while the m other was sleeping. The m other woke up an d asked the f ather what he was doing, and he responded, “nothing you need to know.” RP at 137. Z.M.Y. said the m other did not see what the f

ather was doing. Z.M.Y. said this all happened at her house and that it was just one time. She said the f

ather n ever showed Z.M.Y. his privates and Z.M.Y. never saw him touch his own privates. Z.M.Y. said there w as 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 ha d grown up a little. C. Additional Allegations Against the Mother Throughout the dependency, the primary allegation aga inst the m other had been her failure to recognize the danger posed by the f ather and the m other’s failure to protectNo. 37674

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10 Z.M.Y. from the f

ather. While the m other was apparently asleep when M.M. witnessed the f ather masturbating near Z.M.Y., M.M. testified at trial that the m other later told M.M. that she should not have reported the incident and blamed M.M for the dependency. When the f ather would get aggressive with M.M., the m other would not protect M.M. or tell the f ather to stop. As noted above, Ms. Costa , the m other’s sister, witnessed numerous instances of the f ather conducting himself in a sexually inappropriate manner in front of Z.M.Y. The
m other would not stop the f ather from acting this way in front of Z.M.Y. When this behavior was pointed out to the m other, she would minimize the f ather’s behavior and assure Ms. Costa that the f ather would never do anything to Z.M.Y. Ms. Costa believed the m other was in denial and would always protect the f ather over Z.M.Y. Therapist Heather Cochrell testified th at she did not believe the m other would protect Z.M.Y. Z.M.Y. reported in therapy that when she told her m other what the f ather had done to her, the m other told Z.M.Y. to tell the f ather to stop, but did nothing more to protect Z.M.Y. Social W orker Bologo va testified that the m other made it clear that she was not living with the f

ather and was not allowing him contact with Z.M.Y., but was then found in a hotel room with the f ather and Z.M.Y. in violati on of the order on dependency. Asotin County Social Wor ker Desalme testified that she was also concerned about the m other’s un willingness to protect Z.M.Y. from the f ather. Ms. Desalme told theNo. 37674

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11 m other that she was concerned about returning Z.M.Y. to the m other if she was in an active relationship with the f at her. The m other told Desalme that she did not think therapy would help because the f ather did not do anything wrong. RP 16. Over the course of the dependency, the m other and f ather’s relationship was off and on. During that time, the m other would vaci llate between believing the f ather had not abused Z.M.Y. and wanting nothing to do with the f ather. In 2020, after the m other declared that she was not in a relationship with the f ather, Desalme learned that the two had married a few months earlier. D. Te rmination 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 pa rents, the services that had been ordered as part of the dependency, and the parents’ compliance with these services. 1. Testimony/Evidence of the f ather’s compliance with services ordered
. Social worker Bologova testified that the f ather was ordered to obt ain 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 treatm ent.No. 37674

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12 The f ather did not obtain a sexual deviancy evaluation until October 2018, more than two years after the dependency order was filed. The f ather was found to be a moderate risk to reoffend, assuming he was in compliance with treatment but was also f ound to be less amenable to sex offender treatment than the average examinee. The f ather 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 o n June 17, after missing all but one group session in the last three months, the f ather was discharged from the program for nonattendance, lack of participation, and lack of progress. The f ather
never reen gaged in treatment. The treatment counselor testified that the f ather needed about two years of treatment to be successful. The f ather’s compliance with drug and alcohol abstinence and treatment was mixed. The f

ather’s community corrections officer testi fied that during 2019, the f ather was sanctioned several time for positive UAs. However, the f ather presented testimony from a physician working at Ideal Options Treatment Center, who testified that the f ather was successfully enrolled in a medically assi sted treatment program for opioid abuse from June 2018 to March 2020. The f ather 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 f ather was considered in compliance at his last visit.No. 37674

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13 The f ather 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 att endance was inconsistent. At the time of trial, the f ather had not prov ided a UA for over six months. 2. Testimony/Evidence of the m other’s compliance with services ordered
. The State also presented testimony on the m other’s compliance with services. The
m o ther 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 m other 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
non offender program. Quality Behavior Health advised Bolog ova that they would be able to provide this service to the m other so long as she signed the consent form for services. Asotin County S ocial W orker Desalme testified that she was assigned to the case in December 2017, after the family moved to Clarkston. I t was Ms. Desalme’sNo. 37674

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14 understanding that Bologova had already arranged for nonoffender services through Quality Behavior Health bef ore she was assigned the case. Katherine Troutman, a therapist and advocate at Quality Behavior Health , testified that she met with the m other for one hour in August 2018. During that meeting, she updated the m other’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 prov iding the m other 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 indica ted that she scheduled four follow

- up therapy sessions but the m other 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 fr om 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 finding s 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 f ather had abused the child. The father had failed to comply with s ex offender treatment and substance use treatment. The court also found that the m other failed to protectNo. 37674

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15 Z.M.Y. from the f

ather’s deviant behavior. The court found that both parents had been offered all ordered and necessary services to address and over come these deficiencies, but the child remains in grave danger from future sexual abuse or exploitation from the f ather’s actions and the m other’s failure to protect the child from the f ather. The court concluded that the statutory factors had been met an d 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. ’”No. 37674

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16 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. T o meet its burden o f 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 1 3 .34.190(1)(b). In re Welfare of A.B. , 168 Wn .2d 90 8, 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 elem ents 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). “ T he Department has a statutory obligation to pr ovide 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 “ ‘ n ecessary services ’ ” has beenNo. 37674

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17 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 F ather’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 daugh ter. 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; ad dressing 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, s o those not happen ing anymore. RP at 25

- 26. On appeal, the f ather 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 f ather’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 necess ary to address a condition that precludes reunification. K.M.M. , 186 Wn.2d at 480. Since housing assistance was not ordered in the f ather’s dependency, weNo. 37674

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18 must decide whether these services were nonetheless necessary to reunify the father and child. Ho using 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(1 3 ). Ho wever, 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 f

ather’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 f ather with housing assistance would not have remedied these deficiencies. The f ather 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 inNo. 37674

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19 grave danger of sexual abuse by the f ather. More specifically, the f ather argues that there is insufficient evidence t hat 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, cog ent 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 f ailed 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 pr ovides 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. C lerk’s P apers at 140

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20 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 f

ather’s argument on appeal, these f indings are supported by substantial evidence. The f ather had been previously convicted of sexual abuse of a child under 16 in Idaho, and at the time of trial w as a level three sex offender. The dependency action commenced because Z.M.Y.’s older sister r eported that the f ather was masturbating under a blanket with Z.M.Y. in his arms. There was also significant evidence that the f

ather exhibited highly sexualized behavior and was sexually aggressive with numerous females, including M.M.’s friends. During the f ather’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 f ather exhibited a visible erection. This evidenceNo. 37674

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21 supports the trial court’s findings that the f ather was c ontinuing to engage in an ongoing pattern of sexual deviant behavior. The f ather 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 t his 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 “yuck ies” 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” evidenc e that a child has been abused, after interviewing Z.M.Y., this expert firmly believed that she had been abused by the f ather. The f ather points out that he was never charged with a crime, and argues that if the allegations do not meet the threshold standa rd 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 n ot 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 wh ether a parent ab used a child.No. 37674

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22 Finally, the f

ather 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 f ather had been ordered to complete a sexual deviancy evaluation and follow any recommended treatment. When the f ather 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 t o sex offender treatment than the average examinee. In October, the f ather began treatment , attended sporadically over a few months, and was discharged i n June for lack of attendance. The f ather 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 f ather’s sex offender therapist testified that it would take two years of therapy for the f ather 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 f

ather 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 1 3 .34.190(1)(b); In re Welfare of A.B. , 168 Wn.2d at 911

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.No. 37674

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23 The f ather contends that the Department used removal as a first option instead of a last resort and then deprived the f ather of meaningful opportunities to develop a bond with Z.M.Y. Th e record does not support this argument . Z.M.Y. was originally placed with the m other after being found dependent. The child was only removed afte r both parents violated the order prohibiting the f ather from having unsupervised contact with the child. The f

ather was provided with supervised visits with the child, but these were suspended when he displayed deviant behavior toward the child at a visi tation. The f ather 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. Th e 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 f ather was unfit to parent Z.M.Y. and that termination was in her best interest. C. Application to M

other ’s Case The m other also appeals, arguing that the evidence does not support the trial court’s finding that the Department offered all services ordered. Specifically, the m other argues that she was never offered nonoffender parenting classes. Although the m other disputed the allegations against the f ather, she agreed to an o rder of d ependency that allowed Z.M.Y. to remain with her. The o rder of d ependency prohibited the f ather f romNo. 37674

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24 living in the home or having unsupervised contact with Z.M.Y. The o rder of d ependency also required the m other to complete the Harborview Center for Sexual Assault and Traumatic Stress (nonoffender parenting program) or similar program. The trial co urt found that the Department had made available to the m other all necessary services including nonoff ender 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 d ependency 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 m other. The m other 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 m other. 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 m other ever receiving nonoffender services through Quality Behavioral Health. Ms. Troutman testified that the m other failed to attend four scheduled appointments with her, but these were for “therapy,” appointments. RP at 380.No. 37674

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25 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 simil ar to a nonoffender program. But it is not clear, cogent and convincing that Ms. Troutman was actually providing substitute nonoffender services to the m other. Ms. Troutman clearly did not believe so. The Department also argues that providing the m othe r 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 se ttled 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 th at 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
m other was futile because the m other insisted that the f ather was not doing anything wrong and continued her relationship with the f ather even after being told of itsNo. 37674

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26 detrimental effects on Z.M.Y. This is a circular argument. The whole purpose of nonoff ender 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 m other’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 m other failed to appear for four sche duled 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 p roviding nonoffender services. Nor is there evidence that the m other was told that Ms. Troutman’s therapy sessions would qualify as nonoffender services. We cannot find that the m other was unwilling to engage in services when there is no evidence that sh e was aware that those services were being offered. CONCLUSION We recognize that reversing the termination order against the m other will have detrimental effects on Z.M.Y. Placing the child back in a dependency proceeding will continue to bring uncertai nty 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.No. 37674

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27 We hold that the trial court’s finding, that the Department provided the m other
w ith 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 m other must be reversed. Because we reverse the
m ot her’s termination, we need not address her allegation that the Department also failed to provide the m other 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.