In re the Dependency of D.C.-M.

Worswick, A.C.J.

¶29 (dissenting) — I respectfully dissent from the majority’s holding that the dependency court abused its discretion in ordering a psychosexual evaluation here. I would affirm.

The Role of “Unfounded” Allegations

¶30 The majority contends that the trial court erred by allowing “unfounded” allegations to serve as a basis for the dependency court’s order. Majority at 157. A determination *164that allegations were unfounded or a decision by law enforcement not to seek criminal charges does not limit the dependency court’s authority to order a psychosexual evaluation.

¶31 In the context of child abuse reports, Washington has a broad policy framework to protect children from abuse and to investigate allegations at the outset. RCW 26.44.010.6 Once an allegation is made, the Department of Social and Health Services (DSHS) and law enforcement are directed to investigate any allegations, make a determination, and issue a report. RCW 26.44.050. DSHS defines “unfounded” as “the determination following an investigation . .. that based on available information it is more likely than not that child abuse or neglect did not occur or there is insufficient evidence for [DSHS] to determine whether the alleged child abuse did or did not occur.” WAC 388-15-005. Despite DSHS’s finding that the allegations were unfounded, there is no authority for the proposition that the dependency court is then precluded from ordering services as it sees fit under RCW 13.34.138 to fulfill its review and reunification obligations. In this case, KM stipulated to dependency and the dependency court relied on the evidence before it that some sort of inappropriate sexual conduct had occurred between KM and her children. The guardian ad litem (GAL) recommendation that a psychosexual evaluation be ordered, coupled with allegations *165from the children, was sufficient to support the dependency court’s psychosexual evaluation order.

¶32 The “unfounded” versus “founded” distinction is a red herring. Whether or not sexual abuse allegations fall under one of these categories for purposes of potential criminal prosecution or to take a child into protective custody has no place in our analysis as to whether the dependency court should order a psychosexual evaluation when, as here, the parties involved stipulated to dependency. The standards in the dependency court context are entirely different, and so are the purposes. From the outset, KM’s counsel has all but ignored this crucial distinction, seeking to blur the lines that separate these independent processes.

¶33 Seeking to discredit allegations because they were “unfounded” in the context of DSHS’s and law enforcement’s investigatory obligations is misguided in the dependency context. All allegations must stand on their own under the broader abuse of discretion standard when the dependency court seeks to order therapeutic services or in order to otherwise serve the policy goals of reunification.

Sufficient Evidence

¶34 Lastly, I disagree with the majority’s ultimate holding that sufficient evidence does not exist to support the dependency court’s psychosexual evaluation order. I believe, as did the trial court, “that three children independently reporting sexual assaults by their parents is grounds for this court to order a psychosexual evaluation, regardless of who decided it was unfounded or who did or did not charge it criminally.” Report of Proceedings (Dec. 15, 2009) at 65-66.

¶35 As the majority recognized, the standard of review by which we approach this is the abuse of discretion standard. Despite this, the majority appears to be conducting a de novo review of the dependency court’s decision, weighing all of the facts, and substituting its own judgment. There *166is enough evidence in the record to support the dependency court’s order here, including (1) independently reported sexual abuse allegations by the children; (2) complaints of yeast infections, dysuria, and genital pain by the children; (3) inappropriate sexual behavior by one of the children; and (4) the recommendations of the GAL.

¶36 For the above-mentioned reasons, I dissent.

RCW 26.44.010 provides:

The Washington state legislature finds and declares: The bond between a child and his or her parent, custodian, or guardian is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent, custodian, or guardian; however, instances of nonaccidental injury, neglect, death, sexual abuse and cruelty to children by their parents, custodians or guardians have occurred, and in the instance where a child is deprived of his or her right to conditions of minimal nurture, health, and safety, the state is justified in emergency intervention based upon verified information; and therefore the Washington state legislature hereby provides for the reporting of such cases to the appropriate public authorities. It is the intent of the legislature that, as a result of such reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard the general welfare of such children ....