IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matter ofthe Dependency of N.J., D.O.B. 06/19/2009 and D.J., D.O.B. 05/31/2010, No. 68794-8-I ) (consolidated with 68795-6-I) Minor children, i DIVISION ONE STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, l-O
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—o m __; Respondent, i UNPUBLISHED OPINION ro

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v. DEVANTE JOHNSON, l FILED: April 22, 2013 O CO ro .—f— CwCC Appellant. 

### Becker, J. — Unless a statute implicates FirstAmendment rights, the 

### court will not entertain a challenge that it is unconstitutionally vague on its face. 

### Such a statute may only be challenged as applied to the facts of an individual
case. Despite this well-settled rule, appellant DeVante Johnson mounts a facial vagueness challenge on due process grounds to RCW 13.34.190, the statute 

### permitting a court to terminate a parent-child relationship. Johnson advances no argumentthat the statute was vague as the court applied itto him in terminating his parental rights. We affirm.No. 68794-8-1/2

FACTS 

### NJ was born inJune 2009. Less than a year later, in May 2010, her brother DJ was born. In July 2010, the children's mother obtained a domestic 

### violence protective order againstthe children's alleged father, appellant DeVante Johnson. Johnson had a history of drug abuse involving heroin, cocaine, and methadone, as well as a criminal domestic violence record. InAugust 2010, the 

### mother's parental rights were terminated based on her own history of drug abuse and parental neglect of her four otherdependent children, and because she 

### permitted NJ to see Johnson in violation of the no contact order. One-year-old NJ and her infant brotherwere placed into foster care. Around the same time, Johnson came forward inthe dependency action
as the children's father. Johnson also had two other children by other mothers. 

### He was not parentingthese children either. The courtpermitted him supervised visits with NJ and DJ and ordered him to participate in paternity testing, as well
as various assessments and programs to address his parental deficiencies and 

### drug addictions. He was offered a variety of referrals and resources. Almost twoyears later, the State filed a petition to terminate Johnson's parental rights. A four-day hearing was held, concluding on May 1, 2012. Witnesses testified on both sides, includingJohnson. Johnson disappeared for 

### several days after trial began. When he returned, he appeared noticeably under
the influence. 

### The testimony reflected that during the 22 months since the dependencyNo. 68794-8-1/3
action began, Johnson had suffered multiple drug relapses, his participation in court-ordered services had been sporadic, and he had not completed any ofthe court-ordered treatment requirements. He had made no effortto verify his paternity ofthe children. His visits to the children were also erratic. The children displayed a pattern ofbehavioral problems in reaction to his frequent unexplained absences. When he did appearfor visits, he interacted lovingly and playfully with them but had difficultymanaging their needs. On May 30, 2012, when NJ was three and her brotherwas almosttwo, the court entered an orderterminating Johnson's parent-child relationship with the 

### children. The courtentered written findings of fact and conclusions of law. The 

### court found, among otherthings: Johnson was not credible when he claimed to be clean and sober; he had shown no ability to provide a safe and stable home forthe children; he was unfit to parentthe children; the children were adoptable and had prospects for adoption; adoption could not occurwhile Johnson's parental rights remained; and termination was inthe children's best interests. Johnson appeals the termination order.

ANALYSIS 

### Parents have a fundamental liberty interest inthe custody and care oftheir children. In re Dependency of K.D.S.. Wn.2d _, 294 P.3d 695, 699 (2013). 

### The legislature has prescribed a statutory scheme that balances this liberty interestwiththe child's right to a safe and healthy environment. K.D.S.. 294 P.3dNo. 68794-8-1/4
at 699. The statute requires the State to prove six elements, codified at RCW 

### 13.34.180(1)(a)-(f), by clear, cogent, and convincing evidence before the court 

### mayterminate a parent'srights.1 RCW 13.34.190(1)(a)(i); K.D.S.. 294P.3d at 699. Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown bythe evidence to be "'highlyprobable.'" K.D.S., 294 P.3d at 700. quoting In re Dependency of K.R.. 128Wn.2d 129, 141.904P.2d 1132 (1995).The court must additionally find that the termination is "inthe best interests 

### ofthe child." RCW 13.34.190(1)(b); In re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998). Adetermination that termination is in the best interests ofthe child must be supported by a preponderance ofthe
1RCW 13.34.180 requires the Stateto prove the following six factors: (a) Thatthe childhas been found to be a dependent child; (b) That the court has entered a dispositional order pursuantto RCW 13.34.130; (c) Thatthe childhas been removed orwill, at the time of the hearing, have been removed from the custody of the parentfor a period of at least six months pursuantto a finding ofdependency; (d) Thatthe services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and allnecessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; (e) That there is little likelihood that conditions will be remedied so thatthe child can be returned to the parent inthe nearfuture. A parent's failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption thatthere is little likelihoodthat conditions will be remedied so that the child can be returned to the parent inthe nearfuture.
. . . ...and (f) That continuation of the parent and childrelationship clearly diminishes the child's prospects for early integration into a stable and permanent home. RCW13.34.180(1)(a)-(f).No. 68794-8-1/5 evidence. H.W., 92 Wn. App. at425. The preponderance ofthe evidence standard requires the evidence to show that the proposition at issue is more probably true than not true. H.W., 92 Wn. App. at425. As to Johnson, the trial court closely followed this legislative scheme. The 

### court entered findings of fact as to each ofthe six statutory factors and explicitly found thattermination ofthe parent-child relationship was inthe children's best
interests. The sole issue Johnson raises inthis appeal is his theory that RCW 

### 13.24.190 violates his constitutional right to due process because the phrase "best interests ofthe child" is vague. He makes a facial vagueness challenge thatthe statute lacks the specificity needed to preventthe courtfrom applying it 

### arbitrarily. Hedoes not argue that the "best interests" standard was applied arbitrarily to him inthis case. 

### Johnson's approach is misguided. He ignores well-settled case law on constitutional vagueness. Vagueness challenges to enactments which do not 

### involve FirstAmendment rights are to be evaluated inlight of the particular facts ofeach case. City ofSpokane v. Douglass. 115Wn.2d 171, 182, 795 P.2d 693 

### (1990). Consequently, where a challenged lawdoes not involve First Amendment interests, the law is not properly evaluated for facial vagueness. Douglass, 115 Wn.2d at 182. Rather, the law must bejudged as applied. Douglass, 115 Wn.2d at 182. The courttests the law for unconstitutional 

### vagueness by inspecting the actual conductofthe party who challenges it (here,No. 68794-8-1/6 

### Johnson), and "not by examining hypothetical situations at the periphery" ofthe law's possible scope. Douglass. 115 Wn.2d at 182-83. 

### Johnson has made no argumentthatthe lawwas vague as itapplied to 

### him, in light of the 22-month dependency record or the facts presented to the courtduring the termination hearing. His constitutional challenge does not
warrant review. 

### Even if we were to review the vagueness challenge on the merits, the 

### appeal is meritless. We presume statutes are constitutional. K.R.. 128 Wn.2d at 142. The challenging party has the burden to prove otherwise beyond a reasonable doubt. In re Dependency ofC.B.. 79 Wn. App. 686, 689, 904 P.2d 1171 (1995). review denied. 128Wn.2d 1023(1996). A provision is only 

### unconstitutional as applied ifthe record shows the decision was arbitrary. In re Welfare of H.S.. 94 Wn. App. 511. 524. 973 P.2d 474. review denied. 138Wn.2d 

### 1019 (1999). cert, denied. 529 U.S. 1108 (2000). The court reads the statute as
a whole. HJL, 94 Wn. App. at 525. Johnson falls far short of his burden. He challenges only the single 

### subsection of the statute that includes the phrase "best interests of the child" 

### while ignoring the remaining factors the Statewas required to prove. RCW 13.34.180; RCW 13.34.190. Inthe context ofthe statute as a whole, the phrase "best interests ofthe 

### child" is not subjective. The court acknowledged in In re Welfare ofAschauer. 93 Wn.2d 689, 611 P.2d 1245 (1980), that the phrases "proper parental care" andNo. 68794-8-1/7 "proper maintenance" inthe dependency statutes could be "subjectto value 

### judgments, which may vary from person to person or fromjudgetojudge." Aschauer. 93 Wn.2d at 697. But the phrases took on an objective meaning viewed in context: "these expressions do not stand in isolation. Ifthe statute is 

### viewed as a whole, its meaning takes on substantial objectivity." Aschauer, 93 Wn.2d at 697. We apply the same reasoning here. 

### Johnson assigns error only to the court's finding thattermination of the 

### parent-child relationship was in the children's best interests. Hedoes not assign
errorto the court's numerous otherfindings that provided clear supportforthe 

### termination order, includingthatJohnson was not clean and sober, that he was 

### unfitto parent, and that he would not be capable of resolving his parental deficiencies inthe foreseeable future. We treat these unchallenged findings as 

### verities on appeal. In re Mahanev. 146 Wn.2d 878, 895, 51 P.3d 776 (2002).
Affirmed.

WE CONCUR: 

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