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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON S Ss^ — "VI!

No. 72791-5-1 ^ |gn

DIVISION ONE «> ow

UNPUBLISHED OPINION *° *-

In the Matter of the 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 First Amendment rights but

permits a court to terminate the parent-child relationship upon a finding that

termination is in the best interests of the child. The mother advances no

argument that the statute was vague as the court applied it to her under the

particular facts of her case. We affirm.

FACTS

The relevant facts are unchallenged on appeal. M.M.M. was born in 2001.

Over the course of a 30-year relationship, M.M.M.'s father subjected his mother,

M.M.M., and the couple's older children to severe emotional, physical, and

sexual abuse. In 2003, there was a prior dependency proceeding involving
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M.M.M. and his siblings. Although there were concerns about domestic violence

in the home at that time, the initial dependency was dismissed in 2005.

In 2012, when M.M.M. was 10 years old, the Department of Social and

Health Services took him into protective custody following an incident of physical

abuse. The father was convicted of criminal charges based on the incident, and

his parental rights were terminated. A court found M.M.M. to be dependent as to

the mother, primarily based on her awareness of ongoing abuse and failure to

protect M.M.M.

At the outset of the dependency, M.M.M. had contact with his mother. But

after the mother brought her new boyfriend, without warning 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 contact with his mother. At

several points during the dependency, the court determined it would be

emotionally and psychologically detrimental to require M.M.M. to have contact

with his mother.

During the two-year period of dependency, M.M.M. was placed in the 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 Department filed a petition to terminate the mother's parental rights.

The court held a hearing on the petition over several days in September 2014.

By that time, M.M.M. had not had in person or telephone contact with his mother

for more than a year. The trial court entered extensive factual findings following

the hearing. The court found that despite the mother's participation in various
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services, she had been unable to correct her parenting deficiencies. The court

determined that the mother's inability to protect M.M.M., her denial of

responsibility for her part in the abuse, and her lack of understanding and insight

regarding M.M.M.'s circumstances and needs rendered her unable to safely and

competently parent. The court found that it was 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 set forth 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 in the custody and care of their

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 whether to terminate

parental rights. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104

(2010). First, the court must determine whether the six factors set forth by RCW
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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 of harm to the child. In re

Welfare of C.B.. 134 Wn. App. 336, 345, 139 P.3d 1119 (2006). Then, and only

if all six of the factors are proved, the trial court must determine whether

termination of the parent-child relationship is in "the best interests of the child."

RCW13.34.190(1)(b); A.B.. 168 Wn.2d at 911. In order to terminate the

relationship, the best interests of the child must be proved by a preponderance of

the evidence. A.B., 168Wn.2d at 911.

The court carefully followed this statutory scheme in this case and entered

findings as to each of the statutory factors. The court also explicitly found

"beyond a shadow of a doubt" that termination of the mother's parental rights was

in M.M.M.'s best interests.

1 The six termination factors are:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant

to RCW 13.34.130;

(c) That the child has been removed or will, at the time of the

hearing, have been removed from the custody of the parent for a

period of at least six months pursuant to a finding of dependency;

(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 of correcting 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 that the child can be returned to the parent in the near

future. . . .

(f) That continuation of the parent and child relationship

clearly diminishes the child's prospects for early integration into a

stable and permanent home.

RCW 13.34.180(1).
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Nevertheless, the mother points out that the statute does not define "best

interests of the 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 mother fails to address well-settled principles of law with regard to

constitutional vagueness. Specifically, where First Amendment freedoms are not

involved, we consider only whether the 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 law was vague as it applied to her, in light of

the record of the 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 a
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provision is unconstitutional as applied only ifthe record shows the decision was

arbitrary. H.S., 94 Wn. App. at 524.

The mother wholly fails to meet this burden. She focuses on the single

subsection of the statute that includes the phrase "best interests of the child," and

ignores the other factors the State was required to prove. RCW 13.34.190.

In the context of the statute as a whole, the phrase "best interests of the

child" is not susceptible to arbitrary application. Our Supreme Court

acknowledged in In re Welfare of Aschauer, 93 Wn.2d 689, 611 P.2d 1245

(1980), that the phrases "proper parental care" and "proper maintenance" in

former dependency statutes could be "subject to value judgments, which may

vary from person to person or from judge to judge." 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 of the child" has objective meaning when viewed in conjunction with the

six statutory factors that the court must first find by clear, cogent, and convincing

evidence. And as the court observed in Aschauer, the necessarily individualized

factual determinations required in dependency proceedings make it impossible

and, in fact undesirable, to articulate a rigid list of facts for determining a child's

best interests:

With developing knowledge and understanding of the needs of

children, the criteria for determining what is "proper" or in their best

interests also change.. . . 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 promoted the pursuit

of the 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 error to only the court's

findings that termination of the parent-child relationship is in the 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 left the family home and

effectively abandoned him. The court found that the mother's claim that she was

unaware of the sustained, serious abuse inflicted upon M.M.M. and his siblings

was not credible. The court also found that the mother displayed a "disturbing

lack of insight" with regard to M.M.M.'s emotional 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 mother was

currently unfit to parent and that ifM.M.M. were forced into a relationship with

her, it would "likely undo all of the progress he has made." These unchallenged

findings are verities on appeal. In re Mahanev, 146 Wn.2d 878, 895, 51 P.3d

776 (2002).

Affirmed.

WE CONCUR:

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