### FILED 

### April 19, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Parental Rights to J.B.; L.W.-B.; and J.W.-B. ) ) ) ) ) ) ) ) ) No. 33115-6-111 (consolidated with No. 33116-4-111 No. 33117-2-111 No. 33118-1-111 No. 33119-9-111) UNPUBLISHED OPINION PENNELL, J. -Thiscase involves an appeal ofan orderterminatingparentalrights. Bothparents contend the statutory "bestinterests ofthe child" standard in RCW 13.34.190 is unconstitutionally vague. In addition, the father, L.W., challenges several factual findings pertainingtohis order oftermination. We find no error and affirm. FACTS J.B. is the mother ofthree minor children. L.W. is the presumed father ofJ.B.'s middle child (a son) and alleged father ofJ.B.'syoungest child (a daughter). In March 2013, the trial court found all three children dependent based on

concerns about abuse and neglect. The dispositional orders required J.B. and L.W. to participate in services. Initially, the parents were compliant. However, by mid-2013, things changed. Despite caseworkers' assertions they were willing to schedule around L.W.'s schedule, L.W. cited his work schedule as the reason for not engaging in services. J.B. similarly stopped using the offered services. Caseworkers had difficulty contacting J.B. andL.W. overthe course ofthe dependency. J.B. abandoned visits with her oldestNo. 33115-6-III (consol. w/Nos. 33116-4-III, 33117-2-III, 33118-1-III and 33119-9-III) 

### In re ParentalRights to JB.; L. 

### W-B.; andJ W-B

child not long afterthe dependency was initiated. The trial court eventually ordered J.B.'s visits with her oldest child be stopped at J.B.'s request. J.B. and L.W. stipulatedto suspending visitation withthe two children held in common in June 2013. J.B.'s visits with the two younger children were reinstated in September 2013, butL.W.'s were not as he failed to attend the hearing. On December 2, 2013, the Department ofSocial and Health Services (DSHS) moved to terminate parental rights as to all three children. Trial was held on October 28- 30, 2014. Duringtrial, the courtheard testimony from numerous witnesses and reviewed 33 exhibits. Throughoutthe trial, J.B.'s attendance was intermittent and L.W. only briefly attended on the final day oftrial before returning to work. The trial court found both J.B. and L.W. unfit toparent. With respect to L.W. (the only parent challengingthe court's findings), the court cited the abuse L.W. inflicted on two ofthe three children, his failure to engage successfully in the recommended services, dangerous discipline used withthe children, his refusal to acknowledge his mental health disorders, drug problems apparently no longer in remission, his failure to meet simple conditions to reinstate visits with the two youngest children, and his failure to understand J.B.'s deficiencies. The trial court went on to note case-specific factors supportingthe children's need for permanency and showingtermination was in the children's best

2No. 33115-6-111 (consol. w/Nos. 33116-4-111, 33117-2-111, 33118-1-111 and 33119-9-111) 

### In re ParentalRights to J.B.; L. 

### W-B.; andJ. W-B

interests. Among otherthings, the court discussed J.B. and L.W.'s behavior during a parenting assessment, the younger children's anxious attachment to their parents, the treating therapist's conclusion J.B. and L.W. were unaware ofhow theirbehavior affected the children, L.W.'s use ofinappropriate discipline, the children's fear oftheirparents, and the progress the children had made in their foster homes. ANALYSIS 

### SubstantialEvidence L.W. contends the court's findings offact in support oftermination were unsupported by the evidence. During the proceedings below, the State was required to prove the statutory factorsjustifyingtermination by clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). With this burden satisfied, the State was then required to prove by a preponderance ofthe evidence that termination would be in the best interests ofthe children. 

### In re Welfare ofC.B., 134 Wn. App. 942, 952, 143 P.3d 846 (2006). We will uphold the trial court's findings on appeal so long as they are supportedby substantial evidence in light ofthe applicable burden ofproof. Id. at 952-53. "Substantial evidence is evidence sufficientto persuade a fair-minded rational person of the truth ofthe declared premise." 

### Id. at 953. The trial court's decision is entitled to

3No. 33115-6-III (consol. w/Nos. 33116-4-III, 33117-2-III, 33118-1-III and 33119-9-III) In re ParentalRights to J.B.; L. W-B.; andJ. W-B deference, and this court does notjudgethe credibility ofwitnesses or weigh the evidence. Id. at 952-53. L.W. makes three challenges to the trial court's findings. He argues the court erred in finding (1) his two children were anxious about his availability, (2) his son was afraid ofhim, and (3) he made no positive changes throughout the dependency. L.W.'s first assignment oferror appears to center on the concern thatthe trial court simply held L.W.'s lack ofvisitation against him. This was not the case. While the trial court recognized L.W.'s children had a betterrelationship with him than their mother,

numerous witnesses testified to the children's anxious attachment to their father. Furthermore, the treating therapist, Dr. Moore, explained that L.W. failed to appreciate the emotional impact on his children when he did not show up for visits. Substantial evidence supports the trial court's finding that L.W.'s children were anxious about his availability. Next, L.W. challenges the court's finding that his son was afraid ofhim. L.W. contends substantial evidence does not support this finding because there was testimony his son'sprevious foster father also traumatized him. 1 L.W. does not challenge the trial

1 In a footnote, L.W. argues finding offact XVII is not supportedby substantial evidence for the same reason. That finding states the allegations in the termination petition are true and adopted as a finding offact. It is unclearwhat exactly L.W. is 4No. 33115-6-III (consol. w/Nos. 33116-4-III, 33117-2-III, 33118-1-III and 33119-9-III) 

### In re ParentalRights to JB.; L. 

### W.-B.; andJ W.-B

court's finding that L.W. had "beathis son with belts and cords" and that he engaged in "[d]angerous discipline rising to torture." Clerk's Papers (CP) at 171-72. Nor does he challenge the finding that L.W. abused J.B.'s oldest child in the presence ofhis son. Perhaps not surprisingly, given this level ofabuse, several witnesses testified that L.W.'s

son displayed fear specific to his father. Again, substantial evidence supports the trial court's findings. Lastly, L.W. challenges the trial court's conclusion he made no positive changes throughout the dependency. He argues he did engage in services, although the demands ofhis work schedule interfered with their completion. He points to his positive interactions with his two children as further support. L.W.'s argument ignores the majority ofthe evidence. Throughout the dependency, L.W. repeatedly refused to either engage in or complete court-ordered services, despite numerous offers to accommodate his work schedule. In addition, except for a four-month period in early 2013, L.W. did not participate in urinalysis testing. L.W.'sparticipation in services went from bad to

worse during the last year ofthe dependency. Prior to the trial in October 2014, the last challenging. None ofthe allegations in either the termination petition orthe amended termination petition specificallypertain to the child's fear ofhis father. Assignments of error as to findings offact must comply with RAP 10.3(a)(6) and 10.4(c). This court will not review challenged findings without citation to the record showing why the findings are unsupported. 

### In re Welfare of HS., 94 Wn. App. 511, 520, 973 P.2d 974 (1999). 5No. 33115-6-111 (consol. w/Nos. 33116-4-111, 33117-2-111, 33118-1-111 and 33119-9-111) In re ParentalRights to J.B.; L. W-B.; andJ. W-B

time L.W. had visited his children was in May 2013. L.W. had been providedthe opportunity to have visitation reinstated, buthe failed to take any steps to do so. Even at the termination trial, L.W. only showed up for a briefperiod on the last day. Substantial evidence shows L.W. did not make any positive changes throughout the dependency. Constitutionality of BestInterests Standard Both J.B. and L.W. make a facial vagueness challenge to the "best interests ofthe child" standard set forth in RCW 13.34.190(1)(b). The state statute does not define "best interests ofthe child." As the Washington Supreme Courthas explained, (C]riteria for establishing the best interests for the welfare ofthe child are necessarily absent, since each casepresents its ownpeculiar facts and circumstances, and the complexity ofthese, as well as the need for individualized treatment, militates against the mandatory consideration of certain specified factors in every case....Were the legislature to define the terms in question more precisely than it has already done, the result might well be an inflexibility that deterred rather than promotedthe pursuit ofthe child's best interests. In re Welfare of Aschauer, 93 Wn.2d 689, 697-98 n.5, 611 P.2d 1245 (1980). This courtreviews challenges to the constitutionality ofa statute de novo. In re Welfare of A. W, 182 Wn.2d 689, 701, 344 P.3d 1186 (2015). A statute is presumedto be. constitutional, and the party challenging thatpresumption bears the burden ofproving beyond areasonable doubt the statute is unconstitutional. Id.

6No. 33115-6-111 (consol. w/Nos. 33116-4-111, 33117-2-111, 33118-1-111 and 33119-9-111) In re ParentalRights to J.B.; L. W.-B.; andJ. W.-B

The challenge made by J.B. and L.W. fails to recognize well-settled case law on constitutional vagueness. Vagueness challenges that do not involve FirstAmendment rights are evaluated in light ofthe particular facts ofeach case. City of Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693 (1990). Consequently, where a challenged statute does not involve First Amendment interests, the statute is notproperly evaluated for facial vagueness. Id. Rather, the statute must bejudged as applied. Id. Terminationproceedings do not involve FirstAmendment rights. See In re Welfare of H.S., 94 Wn. App. 511, 524, 973 P.2d 974 (1999) (vagueness challenge to RCW 13.34.180(5)); 

### CB., 79 Wn. App. at 689 (challenge to former RCW 13.34.190(2)). Although the parents' right ofassociation with their children is implicated, the right of intimate association falls under the FourteenthAmendment, not the FirstAmendment. Roberts v. UnitedStates Jaycees, 468 U.S. 609, 618, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984); City of Bremerton v. Widell, 146 Wn.2d 561, 575-76, 51 P.3d 733 (2002). Accordingly, the challenges posed here can only be evaluated as applied, in light ofthe particular facts ofthe case. State v. Ha/stein, 122 Wn.2d 109, 117, 857 P.2d 270 (1993). J.B. and L.W. have made no argument that RCW 13.34.190 was vague as applied to the particular facts oftheir case. Thus, they have not met their burden to provethe

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### L. W-B.,· andJ. W-B

statute is unconstitutional, and their challenge must fail.2 Based upon the foregoing, the orders oftermination are hereby affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: Pennell, J. 

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2 Even ifthis court were to review the vagueness challenge on the merits, J.B. and L.W. still cannotprevail. This courtreads the statute as a whole. H.S., 94 Wn. App. at 525. J.B. and L.W. challenge only the single subsection ofthe statute that includes the phrase "best interests ofthe child" while ignoring the remaining factors the State was required to prove. RCW 13.34.180, .190. In the context ofthe statute as a whole, the phrase "best interests ofthe child" is not subjective. InAschauer, the court acknowledged the phrases "properparental care" and "proper maintenance" in the dependency statutes could be "subjectto valuejudgments, which may vary from personto person or fromjudge tojudge." 93 Wn.2d at 697. Butthe 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." Id. The same reasoning applies here. 8 

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