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# No.72791-5-1 ^ |gn

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## UNPUBLISHED OPINION *° *- Inthe Matter ofthe Dependency of M.M.M.,b.d. 11/16/01, Minor Child. FILED: March 14, 2016 Becker, J. — Unless a statute implicates First Amendment rights, the 

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


### a statute may be challenged only as applied to the facts of an individual case. In this appeal, the mother nevertheless mounts a facial vagueness challenge to RCW 13.34.190. This statute does not involve FirstAmendment rights but 

### permits a courtto terminate the parent-child relationship upon a finding that termination is in the best interests ofthe child. The mother advances no 

### argumentthatthe statute was vague as the court applied it to her underthe particularfacts ofher case. We affirm. FACTS 

### The relevantfacts are unchallenged on appeal. M.M.M. was born in2001. 

### Overthe course of a 30-year relationship, M.M.M.'sfather subjected his mother, M.M.M., and the couple's older children to severe emotional, physical, and sexual abuse. In2003, there was a prior dependency proceeding involvingNo. 72791-5-1/2
M.M.M. and his siblings. Although there were concerns about domestic violence inthe home atthattime, the initial dependency was dismissed in 2005. 

### In2012, when M.M.M. was 10 years old, the Department ofSocial and Health Services took him into protective custody following an incident of physical abuse. The father was convicted ofcriminal charges based on the incident, and his parental rights were terminated. A courtfound M.M.M. to be dependent as to the mother, primarily based on her awareness ofongoing abuse and failure to protect M.M.M. Atthe outset ofthe dependency, M.M.M. had contactwith his mother. But afterthe mother brought her new boyfriend, withoutwarning or preauthorization, to a visit to celebrate M.M.M.'s birthday in November 2012, the relationship was severely strained. M.M.M. eventually refused all contactwith his mother. At several points during the dependency, the court determined itwould be emotionally and psychologically detrimental to require M.M.M. to have contact with his mother. 

### During the two-year period ofdependency, M.M.M. was placed inthe care of his older sister. The siblings built upon the close bond they had as children, and M.M.M. made substantial progress in her care. The Departmentfiled a petition to terminate the mother's parental rights. The court held a hearing on the petition over several days in September 2014. 

### Bythat time, M.M.M. had not had inperson or telephone contactwith his mother for more than a year. The trial court entered extensive factual findings following 

### the hearing. The courtfound that despite the mother's participation invariousNo. 72791-5-1/3 

### services, she had been unable to correct her parenting deficiencies. The court determined thatthe mother's inability to protect M.M.M., her denial of 

### responsibility for her part inthe abuse, and her lack ofunderstanding and insight regarding M.M.M.'s circumstances and needs rendered her unable to safely and competently parent. The courtfound that itwas not reasonable to believe that the mother would overcome these deficiencies in the foreseeable future. The court concluded that the Department had proved the six statutory termination factors setforth in RCW 13.34.180(1)(a)-(f) by clear, cogent, and convincing evidence and that termination was in the child's best interests. RCW 13.34.190. The mother appeals. ANALYSIS Parents have a fundamental liberty interest inthe custody and care oftheir children. In re Dependency of K.D.S.. 176 Wn.2d 644, 652, 294 P.3d 695 (2013). The legislature has prescribed a statutory scheme that balances this 

### liberty interest with the child's right to a safe and healthy environment. K.D.S., 176 Wn.2d at 652. Pursuant to RCW 13.34.180 and RCW 13.34.190, the trial court must utilize a two-step process in determining whetherto terminate 

### parental rights. Inre Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). First, the court must determine whetherthe six factors setforth by RCWNo. 72791-5-1/4 

### 13.34.180(1 )(a)-(f)have been proved by clear, cogent, and convincing evidence.1 These factors focus on the parental fitness and the risk ofharm to the child. In re 

### Welfare ofC.B.. 134 Wn. App. 336, 345, 139 P.3d 1119 (2006). Then, and only if all six ofthe factors are proved, the trial court must determine whether termination ofthe parent-child relationship is in "the best interests ofthe child." RCW13.34.190(1)(b); A.B.. 168 Wn.2d at 911. In order to terminate the relationship, the best interests ofthe child must be proved by a preponderance of the evidence. A.B., 168Wn.2d at 911. The court carefully followed this statutory scheme inthis case and entered 

### findings as to each ofthe statutory factors. The court also explicitly found "beyond a shadow of a doubt" that termination ofthe mother's parental rights was in M.M.M.'s best interests.

1 The six termination factors are: (a) Thatthe child has been found to be a dependent child; (b) Thatthe court has entered a dispositional order pursuant to RCW 13.34.130; (c) Thatthe child has been removed orwill, at the time ofthe hearing, have been removed from the custody ofthe parentfor a period of at least six months pursuantto a finding ofdependency; (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all 

### necessary 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 willbe remedied so that the child can be returned to the parent in the near future.
. . . (f)That continuation ofthe parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. RCW 13.34.180(1).No. 72791-5-1/5 

### Nevertheless, the mother points outthatthe statute does not define "best interests ofthe child," nor does it set forth standards for the court to use in analyzing the child's best interests. Her sole argument on appeal is that absent 

### specific guidelines, the statute allows for arbitrary enforcement and is unconstitutionally vague. But the motherfails to address well-settled principles of law with regard to constitutional vagueness. Specifically, where First Amendmentfreedoms are not 

### involved, we consider only whetherthe statute is constitutional as applied. In re Dependency of C.B., 79 Wn. App. 686, 689, 904 P.2d 1171 (1995), review denied, 128 Wn.2d 1023 (1996). Washington courts have determined that 

### termination proceedings do not involve First Amendment rights. See In re Welfare of H.S., 94 Wn. App. 511, 524, 973 P.2d 474, review denied, 138 Wn.2d 1019 (1999), cert, denied, 529 U.S. 1108 (2000); CJL 79 Wn. App. at 689. The 

### mother makes no argument that the lawwas vague as itapplied to her, in light of the record ofthe two-year dependency or the evidence presented to the court 

### during the termination hearing. Accordingly, her constitutional challenge does

not warrant review. 

### Even ifwe were to review the vagueness challenge on the merits, her claim would fail. We presume that statutes are constitutional. In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995). The challenging party has 

### the burden to prove otherwise beyond a reasonable doubt. C.B., 79 Wn. App. at 689. We consider the statute as a whole. H.S., 94 Wn. App. at 525. And aNo. 72791-5-1/6 

### provision is unconstitutional as applied only ifthe record shows the decision was arbitrary. H.S., 94 Wn. App. at 524. 

### The motherwholly fails to meetthis burden. She focuses on the single subsection ofthe statute that includes the phrase "best interests ofthe child," and ignores the otherfactors the State was required to prove. RCW 13.34.190. Inthe context ofthe statute as a whole, the phrase "best interests ofthe 

### child" is not susceptible to arbitrary application. Our Supreme Court acknowledged in In re Welfare ofAschauer, 93 Wn.2d 689, 611 P.2d 1245 

### (1980), thatthe phrases "properparental care" and "propermaintenance" in former dependency statutes could be "subjectto valuejudgments, which may 

### vary from person to person or fromjudge tojudge." Aschauer, 93 Wn.2d at 697. 

### But objective meaning could be derived from the 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. Likewise here, the "best interests ofthe child"has objective meaning when viewed in conjunction withthe 

### six statutory factors that the court mustfirstfind by clear, cogent, and convincing evidence. And as the court observed inAschauer, the necessarily individualized 

### factual determinations required independency proceedings make itimpossible and, in fact undesirable, to articulate a rigid list offacts for determining a child's
best interests: 

### Withdeveloping knowledge and understanding of the needs of children, the criteria fordetermining what is "proper" or in their best interests also change..
. .Were the legislature to define the terms 

### inquestion more precisely than ithas already done, the result might wellbe an inflexibility that deterred ratherthan promoted the pursuit ofthe child's best interests.No. 72791-5-1/7

Aschauer, 93 Wn.2d at 697-98 n.5. Out of 122 factual findings, the mother assigns errorto only the court's 

### findings thattermination ofthe parent-child relationship is inthe child's best interests. However, numerous findings support the termination order. For instance, the court found there was evidence that the mother participated in the abuse of M.M.M., and on several occasions, she leftthe family home and 

### effectively abandoned him. The courtfound that the mother's claim that she was
unaware ofthe sustained, serious abuse inflicted upon M.M.M. and his siblings
was not credible. The court also found thatthe mother displayed a "disturbing 

### lack of insight" with regard to M.M.M.'semotional and psychological needs and that her actions suggested that she placed a higher priority on her own desires and needs than those of her child. Finally, the court found that the motherwas 

### currently unfit to parent and that ifM.M.M. were forced into a relationship with her, it would "likely undo all ofthe progress he has made." These unchallenged findings are verities on appeal. Inre Mahanev, 146 Wn.2d 878, 895, 51 P.3d 776 (2002). Affirmed.

WE CONCUR: 

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