In Re Dependency Of: M.k.g.p., Dob: 4/14/14, Fauniteni Pauni Jr., App v. Dshs, Resp ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) No. 76202-8 -I
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FAUNITENI PAUNI JR., )
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Appellant. ) FILED: January 16, 2018
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MANN, J. — Fauniteni Pauni appeals the termination of his parental rights to his
daughter, M.- K. P. He contends that the order terminating the parent-child relationship
must be reversed because the Department of Social and Health Services (Department)
failed to prove that he is currently unfit to parent and failed to prove other statutory
factors by clear, cogent, and convincing evidence. He also challenges the
constitutionality of ROW 13.34.180 and 13.34.190, the statutes governing termination of
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the parent and child relationship. Substantial evidence supports the juvenile court's
findings of current parental unfitness, the finding that all necessary and reasonably
available services capable of correcting parental deficiencies were offered or provided,
and the finding that termination was in the best interests of the child. And because
Pauni fails to meet his burden to establish beyond a reasonable doubt that these
statutes are unconstitutional, we reject his constitutional claim. We affirm.
FACTS
Pauni and Kate Daniels were married in 2012. They have a son, N.P., born on
February 28, 2013, and a daughter, M.-K. P., born on April 14, 2014. Daniels suffers
from Huntington's Disease, a chronic illness which affects her executive functioning and
results in some physical limitations. Pauni is also the father of three older children who
are not in his care. Only M.-K. P. is the subject of this appeal.
Because of controlling and confrontational behavior they witnessed, bruising they
observed, and incidents reported by their daughter, Daniels' parents were concerned
about her safety during the marriage. On several occasions, Daniels sent text
messages to her mother asking if she could return to the family home and Daniels'
mother twice called the police when she arrived to pick up Daniels and N.P. and Pauni
would not allow them to leave.
Child Protective Services(CPS)became involved with the family before M.-K. P.
was born. In December 2013, Pauni and Daniels lost their housing. That same day,
Joseph Summers,the director of a non-profit organization that serves the homeless,
offered the family temporary housing in a trailer on his Port Orchard property. During
the month that the family lived on Summers' property, Summers noticed that Pauni was
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controlling towards Daniels and was very quick to "flare up" in anger. Also during this
time, 10-month-old N.P. suffered a burn on his leg from a space heater while in Pauni's
care. Pauni asked Summers to look at the injury and Summers advised Pauni that N.P.
needed medical attention. Pauni responded he did not want CPS to become involved
and the parents did not seek medical treatment for N.P. Because of this incident and
because of Summers'concerns about Daniels' deteriorating health and Pauni's
controlling behavior, Summers contacted law enforcement, Daniels'family, and Adult
Protective Services. Daniels admitted to police officers that Pauni had hit her several
times. As a result of Summers' intervention, the mother separated from Pauni and took
N.P. with her to live at her parents' home. Shortly after, Daniels filed a petition to
dissolve the marriage.
When M.-K. P. was born in April 2014, medical providerd made a referral to CPS
based on concerns about Daniels ability to independently care for a newborn baby.
Daniels reported to CPS investigators that she had been the victim of domestic violence
and that Pauni had pushed and shoved her and punched her in the head, and that
some of this violence took place when she was pregnant. Pauni, on the other hand,
refused to discuss domestic violence because he said he did not want to implicate
Daniels. M.-K. P. was placed in licensed foster care. She has never resided with either
parent.
The court entered an agreed dependency order regarding M.-K. P. as to both
parents in September 2014.1 In an agreed dispositional order, Pauni was ordered to
'The dependency and dispositional orders are not in the record. In discussing these
orders and other factual matters, both parties cite to trial exhibits throughout the briefing, but
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participate in hair follicle testing for a period of time, to submit a urinalysis test, and to
work with a public health nursing service if the child was placed in his care. The order
included further requirements for drug testing and a chemical dependency evaluation if
any test result was positive. In a separate contested dispositional order, the court
ordered Pauni to obtain a psychological evaluation with a parenting component and to
comply with all recommended treatment. That order also required Pauni to participate
In homebuilders or similar in-home service if the child was placed in his care.
During the two-year dependency period, Pauni did not have permanent stable
housing. He reported that he was homeless and primarily lived in transitional housing in
Bremerton and then in Bellevue. Although he was employed throughout the
dependency period, his employment was neither stable nor continuous. He had
approximately eight different jobs and often held multiple jobs at the same time.
Based on negative drug testing, Pauni was not required to submit to further drug
testing or obtain a substance abuse evaluation. And because his daughter was never
placed in his care, Pauni was not required to participate in homebuilders or work with a
public health nurse.
The Department referred Pauni to Dr. Steven Tutty who performed a
psychological evaluation in February 2015. According to Dr. Tutty, Pauni reported a
history of attention deficit hyperactivity disorder(ADHD), and his test results showed
executive functioning impairments consistent with that report, indicating challenges with
exhibits are not included in the record on appeal. There do not appear to be any factual
disputes with regard to the trial exhibits and they are not necessary to our disposition of the
case. Nevertheless, we remind the parties that they must verify that the cited evidence is
included in the appellate record. See RAP 10.3(a)(5).
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attention, focus, and impulsivity. With respect to other diagnostic portions of the testing,
including personality testing and the child abuse potential inventory test, Dr. Tutty was
unable to evaluate Pauni because his responses were "highly defensive," and revealed
an attempt to "grossly manipulate" how others view his character. Dr. Tutty was thus
only able to diagnose ADHD, but noted that other conditions were possibly present, if
not masked by Pauni's lack of transparency and manipulation.
As part of his evaluation, Dr. Tutty interviewed Daniels who again stated that
Pauni engaged in acts of domestic violence during the marriage. Pauni categorically
denied domestic abuse. But Pauni reported that his biological father was "highly
abusive" and admitted to a history of violent acts, including an unprovoked serious
violent attack when he was a teenager.
Dr. Tutty identified Pauni's executive functioning impairment, his level of
defensiveness, and his history of domestic violence as parental deficiencies. Dr. Tutty
explained that Pauni's cognitive impairments, when viewed in conjunction with his high
level of defensiveness, indicated a lack of insight into psychological challenges and
parenting deficits and would have a tendency to affect his motivation to complete
treatment and ability to effectively apply and incorporate skills learned in treatment. Dr.
Tutty opined that exposure to domestic violence negatively affects children and often
leads to posttraumatic stress disorder(PTSD)and depression. Dr. Tutty further
explained that lapses in visitation erode the parent-child bond.
Based on his evaluation, Dr. Tutty recommended that Pauni engage in
counselling to address ADHD,and his history of domestic violence, propensity for
anger, and impulsivity. Dr. Tutty specifically recommended individual counselling
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because he believed it would be more effective than a class setting In view of Pauni's
high level of positive impression management. Dr. Tutty recommended that Pauni
consult a physician for a medication assessment to explore possible drug treatment for
his ADHD symptoms. Due to his history of inconsistent parenting, Dr. Tutty also
recommended that Pauni complete a parenting class. Pauni completed a parenting
class.2 However, he did not complete the treatment recommended by Dr. Tutty.
The Department referred Pauni to Kitsap Mental Health and in 2015, he had an
intake assessment to determine his eligibility for services provided by that agency.
Pauni was eligible for numerous services, based in part on his report that he suffered
from PTSD. Those services included assistance with case management, housing,
employment and/or financial benefits, possible medication management/psychiatric
consultation, and individual therapy. Following the intake, according to the agency's
records, Pauni met with a case manager four times between May and August 2015. He
did not provide any reports to the Department or a release of information with respect to
these meetings.
Pauni participated in some services in 2016 with a mental health and domestic
violence counselor, Sandra Bruno. Bruno conducts a year-long, group-based
domestic violence program that was already underway when Pauni contacted her.
Pauni did not provide any court document or Dr. Tutty's evaluation to Bruno, but said
he wanted to participate in order to "stop all of the abuse from [his] ex-wife." Pauni
attended 10 sessions focused on parenting. Pauni abruptly stopped attending the
2 As the juvenile court noted, although a developmental parenting class was recommended,
Pauni completed a different class focused on raising a "spirited child?
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classes, and although Bruno tried to contact him, he never returned her calls. The
social worker spoke with Bruno and determined that the program she offered did not
satisfy Dr. Tutty's treatment recommendation.
In January 2016, the Department filed a petition to terminate Pauni's parental
rights.3 In July of 2016,following a dependency trial related to N.P., the court
incorporated Dr. Tutty's recommendations in the dispositional order. In addition to
individual mental health counselling and a medical evaluation, the court specifically
ordered Paunl to participate In Moral Reconation Therapy and spoke at length about
why the court was ordering this treatment?' The Department provided a referral for the
service. Upon completion of 60 days of targeted mental health treatment and a
medication assessment, the court ordered Pauni to obtain an updated psychological
evaluation. He did not participate in the prerequisite services nor did he obtain a new
evaluation. Pauni did show up unannounced at the Department's offices one day
shortly after the July 2016 dependency trial, but then abruptly left in the middle of a
discussion with the social worker, when the social worker briefly stepped away to
retrieve bus tickets and a copy of the court's dependency order for him.
At the time of trial of the Department's petition in October 2016, M.-K. P. was two
and a half years old. Pauni had not seen her In more than six months. Two social
workers assigned to the case during the dependency period testified at trial. According
to the social worker assigned to the case for more than a year, although Pauni
appeared to have "immense love" for his children, he visited M.-K. P. only intermittently
3 The petition also sought to terminate the parental rights of the mother. The mother later
relinquished her parental rights and is not a party to this appeal.
Pauni attended N.P.'s dependency trial, but at the termination trial a few months later, insisted
he had never heard of Moral Reconation Therapy.
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during the dependency. Several visitation contracts were terminated by supervisors
due to missed visits and cancellations without sufficient notice. Visit supervisors
reported some concerning behavior during visits, such as making "inappropriate
passes" at them, being distracted during visits, and disrupting the visits of other families.
At times, Pauni was unsure of how to safely parent and would ask the supervisor what
to do.
In 2016, Pauni said he could no longer attend visits on weekdays and was only
available on Sundays. However, Sunday visits were not feasible because of the
unavailability of professional supervisors and a conflict with M.-K. P.'s established
schedule. Pauni refused to cooperate with the social worker's attempts to verify his
schedule or identify other potential times that visitation could occur. Pauni mentioned
that some people from his church might be willing to supervise visits, but he did not
provide names or contact information to the social worker.
Pauni testified that since the summer of 2016, he was working as a security
guard on weekend nights for approximately 8 hours per week and worked slightly less
than 40 hours per week at a hotel as a bellhop. He said his schedule changed weekly,
that some of his shifts were on weekends, and that his employer was "family oriented"
and flexible when he required time off. Pauni testified that he had been living for
approximately a month in a residence with his fiancé, whom he had known for about two
months. He had not participated in any services since the July 2016 dependency trial or
visited his daughter. He described his recent efforts toward reunification as follows:(1)
he had secured housing with his new fiancé,(2) he changed jobs so he had more time
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available to see his children, and (3) he maintained contact with the Department for the
purpose of scheduling visits.
When asked about domestic violence, Pauni testified that he hit Daniels on only
one occasion, in self-defense, when he "was tired of being a punching bag? He
conceded that there was "really bad" domestic violence in a prior relationship, but at the
same time, said he was also a victim and that he grabbed and threw his former partner
only because she was hitting him.
Pauni testified that Crohn's disease and depression were major obstacles that
prevented him from completing the required services and maintaining consistent contact
with his child, even though he had not mentioned these conditions to the Department,
the court, Dr. Tutty, or any other treatment provider in the course of the dependency.
Pauni also said he was unable to reduce his work hours because 60 to 70 percent of his
wages were garnished to pay child support.
Pauni's report of services he participated in was also at odds with the
Department's records and the testimony of other witnesses. For instance, Pauni said
that in addition to the group sessions, he had individual counseling sessions with Bruno,
but Bruno did not corroborate his claim. Pauni also represented that he had "countless"
individual counselling sessions with the case manager at Kitsap Mental Health and "a
lot of counselling" with his pastors about reconciling with his wife. Pauni said he
attempted to obtain a medication evaluation, but the treatment provider did not have
authorization to prescribe medication for ADHD.
According to the social worker primarily assigned to the case, Pauni's parental
deficiencies included his domestic violence history, and his failure to acknowledge it or
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recognize its impact on his children. His deficiencies also included the failure to visit his
child in months and his failure to recognize the detrimental effect. Another parental
deficiency was Pauni's failure to secure adequate housing that would accommodate his
child. The social worker said that Pauni's actions, or lack thereof, showed that he did
not prioritize his children and demonstrated a lack of motivation'to care for them and a
failure to accept responsibility for them. The social worker believed there was no
likelihood that Pauni would be able to correct his parental deficiencies within the
foreseeable future and recommended terminating Pauni's parental rights.
The juvenile court entered an order terminating Pauni's Parental rights. He
appeals.
ANALYSIS
Pauni challenges the termination order, arguing that the Department failed to
present sufficient evidence to support several of the juvenile court's findings.
Parents have a fundamental liberty and privacy interest in the care and custody
of their children. In re Welfare of A.J.R., 78 Wash. App. 222, 229, 896 P.2d 1298(1995).
Thus, terminating parental rights should be allowed only "'for the most powerful
reasons.'" A.J.R. 78 Wash. App. at 229 (internal quotation marks Omitted)(quoting In re
Welfare of Seqo,82 Wn.2d 736, 738,513 P.2d 831 (1973)).
Washington courts use a two-step process when deciding whether to terminate
parental rights. In re Welfare of A.B., 168 Wash. 2d 908, 911, 232 P.3d 1104(2010); RCW
13.34.190. First, the Department must show that the statutory requirements in RCW
13.34.180(1) are established by clear, cogent, and convincing evidence. &L168
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Wn.2d at 911. The statutory requirements that the Department must allege and prove
by clear, cogent, and convincing evidence are set forth in RCW 13.34.180(1):
(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 ...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.
Evidence is clear, cogent, and convincing if it shows the ultimate fact at issue is
highly probable. In re Dependency of K.S.C., 137 Wash. 2d 918, 925,976 P.2d 113
(1999). On review, the trial court's findings will not be overturned if supported by
substantial evidence. K.S.C., 137 Wash. 2d at 925. Evidence is substantial if it is
sufficient to persuade a fair-minded person of the truth of the declared premise. In re
Welfare of C.B., 134 Wash. App. 942, 953, 143 P.3d 846(2006). This court does not
make credibility determinations or weigh evidence on review. C.B. 134 Wash. App. at
953. "The trial judge has the advantage of having the witnesses before him or her, and
deference to the findings is of particular importance in deprivation proceedings? K S C
137 Wash. 2d at 925.
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Second, once the court concludes that the Department has established the
factors of RCW 13.34.180(1) by clear, cogent, and convincing evidence, it must then
consider whether terminating parental rights is in the best interest of a child. A.B. 168
Wash. 2d at 911. The Department must establish by a preponderance of the evidence that
termination is in the best interest of the child. RCW 13.34.190(1)(b). "Only if the first
step is satisfied may the court reach the second? A.B., 168 Wash. 2d at 911.
Parental Unfitness
In addition to establishing the six factors of RCW 13.24.180(1), due process
requires the trial court to explicitly or implicitly find by clear, cogent, and convincing
evidence that the parent is currently unfit. A.B. 168 Wash. 2d at 918-19. Current parental
unfitness may be implicitly established when the Department proves all six of the
statutory elements. In re Devendencv of K.N.J., 171 Wash. 2d 568, 576-77,257 P.3d 522
(2011). A court may also explicitly make a finding of current parental unfitness. &?
168 Wash. 2d at 920-21. Parental deficiencies alone do not render a parent currently unfit,
"[t]he proper inquiry is whether the existing parental deficiencies, or other conditions,
prevent the parent from providing for the child's basic health, welfare, and safety." In re
Parental Rights to K.M.M., 186 Wn.2d 466,493, 379 P.3d 75(2016). Here, the trial
court made a detailed and explicit finding of current parental unfitness, a finding we
review for substantial evidence:
The father is incapable of providing for the child [M.-K. P.'s] emotional,
physical, mental and developmental needs. The father is incapable of
safely parenting the child and is currently unfit to parent the child. As
testified by Dr. Tutty, children are best served by "a predictable, stable,
safe, adequately structured, and consistently nurturing home
environment." The father's propensities towards domestic violence remain
unresolved. The father's testimony that the mother(who is half his size
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and presents with significant physical infirmities) was a daily aggressor
against him, and that he only physically defended himself one time, is not
credible, especially in light of the fact that he made the same claim about
the mother of another one of his children. In addition both [Daniels'
mother] and Mr. Summers testified to the fathers propensity to Banger
and his intimidating presentation, and the father admitted his history of
Impulsive violent behavior as a youth to Dr. Tufty. The father needs to
come to grips with his anger issues before he can safely parent a child.
As Dr. Tutty explained, children who witness domestic violence are
subject to potential physical harm, as well as emotional harm, that can
negatively affect their proper development. The father has failed to
maintain a stable home appropriate for placement of a child. He testified
that he has been financially unable to do so due to garnishment for child
support, but the levels of garnishment he claims are not credible in light of
the controlling statute, and he provided no supporting documentation. The
father's failure to secure appropriate housing for a child is not due solely to
poverty; other issues are involved, potentially focus issues identified by Dr.
Tutty or perhaps other issues that Dr. Tutty was unable to identify because
the father was not forthcoming in the testing process. His current housing
depends on the continuation of his very new relationship with his fiancée,
whom he has known for 2 months and whom he asked to marry him after
2 weeks, despite the fact that as recently as July he was seeking to
reconcile with Ms. Daniels. It is also concerning that the father responded
to [the social worker] that he did not believe that his lack of visitation with
the child was harmful to the child. The fathers failure to attend any
visitation with his child for months demonstrates that he is unable to focus
on the needs of his children over his own needs, and that he is clearly
unable to take the much greater responsibility of parenting a child full-
time.I51
Pauni claims that the record does not support this finding. He contends that
there was no evidence that any mental health issue or domestic violence adversely
affected M.-K. P. or his ability to parent. Thus, he claims that there was no connection
between the parental deficiencies identified by the court and his parenting abilities. He
points to the testimony of some witnesses who said they observed appropriate
parenting in the context of supervised visits or an evaluation. Pauni also maintains
5 1n addition to challenging this finding, Pauni assigns error to 18 other findings made by the
juvenile court. We address the findings only to the extent that Pauni provides specific argument In his
briefing. See Brown v. Vail, 169 Wash. 2d 318, 336, n.11, 237 P.3d 263(2010)(citing Cowiche Canyon
Conservancy v Bosley, 118 Wash. 2d 801, 809,828 P.2d 549(1992)); RAP 10.3(a)(6).
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there is no evidence that inattentiveness contributed to the burn injury sustained by N.P.
With regard to alleged domestic violence, Pauni claims there is no evidence or
allegations that M.-K. P., or any of his children, were the target of violence or anger or
witnessed domestic violence.
Nevertheless, the record supports the court's finding that Pauni's untreated anger
and domestic violence issues created a risk to M.-K. P.'s safety and welfare. This is
particularly true because of evidence that violence was a long-standing issue for Pauni,
there were domestic violence issues in his prior relationship, his explanation and
attempt to deflect blame was implausible, and because Pauni failed to recognize the
dangerousness and seriousness of his acts of domestic violence. While it is true that
there was no evidence that his daughter was a victim of domestic violence or witnessed
such violence, it is also true that M.-K. P. was never in Pauni's care and all of his
contact with her was professionally supervised. Contrary to Pauni's argument, the risk
to M.-K. P. was not merely speculative.
With regard to Pauni's mental health, the court did not conclude that he was unfit
to parent solely because of a mental health condition. However, the court determined
that Pauni's ADHD, and possibly other conditions that could not be diagnosed,
potentially contributed to his failure to secure adequate housing, to engage in
recommended treatment, and maintain consistent and continuous contact with his child.
In sum, Pauni was unfit because of the cumulative effect of his untreated domestic
violence and anger, untreated mental health condition, and inability to prioritize the
needs of his child as evidenced by his sporadic contact with her and the failure to take
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steps toward securing adequate housing. Substantial evidence supports the court's
determination of unfitness.
Necessary and Reasonably Available Services
To meet its burden under RCW 13.34.180(1)(d), the Department had to establish
that it offered or provided Pauni with the required services, and that he either failed to
engage or waived his right to such services. In re Welfare of S.V.B., 75 Wash. App. 762,
770,880 P.2d 80(1994). The juvenile court made several findings with regard to this
statutory factor, including the following:
Services offered under RCW 13.34.130 have been expressly and understandably
offered or provided to the father. The emails, letters and testimony of the social
workers demonstrate the extraordinary efforts to engage and/or confirm the
father's reported engagement in services.
All necessary services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided to the father. Neither the father, the CASA
nor the Department have indicated the need for remedial services for the father
other than those previously ordered by the court in the dependency cases of[M.-
K. P.] and her sibling,[N.P.]. The father indicated that he had requested
marriage counseling at some point in the beginning of[M.-K. P.'s] dependency,
however, that is not a remedial service to promote reunification between parent
and child. The father requested housing assistance, and testified that social
worker Alicia Adiele did assist him in locating some housing resources.
Pauni challenges these findings. He claims that the Department failed to meet its
burden under RCW 13.34.180(1)(d) because, although the court identified his lack of
stable housing as parental deficiency, the Department failed to provide him with
adequate housing assistance. According to Pauni, lack of permanent housing affected
his ability to participate in treatment and services and regularly visit M.-K. P. And the
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Department failed to address this barrier by merely providing him with a list of online
resources.
Pauni relies on Wash. State Coalition for the Homeless v. Deret of Soc. & Health
Servs., 133 Wn.2d 894,924, 949 P.2d 1291 (1997). In that case, the Washington
Supreme Court held: "[Al juvenile court hearing a dependency proceeding has authority
to order[the Department]to provide the family with some form of assistance in securing
adequate housing in those cases where homelessness or lack of safe and adequate
housing is the primary reason for the foster placement or the primary reason for its
continuation." Coalition for the Homeless, 133 Wash. 2d at 924.
But homelessness was not the primary parental deficiency that prevented
reunification in this case. As explained, the parental deficiency was the combined effect
of Pauni's unacknowledged and unaddressed domestic violence and anger, untreated
mental health condition, and inability to prioritize the needs of his child.
The record also reveals that Pauni failed to utilize the housing assistance
resources that were available to him. For example, around the time of the dependency,
Pauni was employed by Home Depot and represented to the social worker that he was
eligible for housing assistance through the employer. For unknown reasons, he failed to
obtain assistance through that program. Pauni was also eligible for housing assistance
through the Department's referral to Kitsap Mental Health Services. But he only worked
with a case manager for a period of a few months and did not utilize the housing
services offered by that organization. In the summer of 2016, Pauni estimated that he
was a couple of weeks to a month away from accumulating the funds he needed to
secure stable housing. At trial, he said that he had recently qualified for housing
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through another program but left that program because the timeframe would not work
and because his fiancé invited him to live with her. A parent's unwillingness or inability
to avail himself or herself of remedial services within a reasonable period is highly
relevant to the determination of whether the elements of RCW 13.34.180 are
established. In re Dependency of C.T., 59 Wn. App.490, 499,798 P.2d 1170(1990).
As the juvenile court noted, the causes for Pauni's homelessness did not appear
to be simply financial. Pauni was employed throughout the dependency, often held
multiple jobs, and provided conflicting explanations for his lack of stable housing. Pauni
did not request housing assistance from either of the social workers who testified at trial.
And although Pauni had apparently moved into housing that could accommodate his
child by the time of trial, he did not notify the Department or take any steps to further
M.-K. P.'s placement with him.
Under these circumstances, there are no reasonable grounds to believe that
additional housing services would have remedied Pauni's parental deficits. Substantial
evidence supports finding the Department timely offered or provided all necessary
services capable of correcting Pauni's parental deficiencies.
Pauni also challenges the court's finding that there is little likelihood that
conditions will be remedied so that the child can be returned to him in the near future
and its finding that continuation of the parent-child relationship diminishes the child's
prospects for early integration into a stable and permanent home. See RCW
13.34.180(1)(e), (f). He argues that it was "premature or incorrect" to enter these
findings because they are predicated on unsupported findings that he was currently unfit
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to parent M.-K. P. and that the Department provided all necessary services that were
reasonably available. Because we disagree, these claims also fail.
Best Interest
The court entered the following finding regarding the best interest of the child:
Termination of parental rights is in the best interest of this young child.
The father will not be able to remedy his parental deficiencies within the
near future. The child,[M.-K. P.], has a right to a safe, stable, and
permanent home and to a speedy resolution of this termination
proceeding. The child's CASA also supported termination of Mr. Pauni's
parental rights as being in [M.-K.P.'s] best interest.
In determining the best interest of the child, the juvenile court also expressly
considered the fact that the present placements of M.-K. P. and her sibling have a
strong relationship and have indicated mutual intent to continue to support sibling
contact posttermination.
The determination of whether termination of parental rights is in the child's best
interests is a fact specific inquiry. In re Welfare of Aschauer,93 Wn.2d 689,695,611
P.2d 1245(1980)."Where a parent has been unable to rehabilitate over a lengthy
dependency period, a court is 'fully justified' in finding termination in the child's best
interests rather than 'leaving [the child] in the limbo of foster care for an indefinite period
while [the parent]sought to rehabilitate himself.'" In re Dependency of T.R., 108 Wn.
App. 149,167, 29 P.3d 1275(2001)(alterations in original)(quoting In re Dependency of
A.W. 53 Wash. App. 22, 33,765 P.2d 307(1988)). "When the rights of basic nurture,
physical and mental health, and safety of the child and the legal rights of the parents are
in conflict, the rights and safety of the child should prevail." RCW 13.34.020.
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Pauni maintains that the court did not identify any parental deficiency that
warranted termination and it was not in his daughter's best interest to terminate the
parent-child relationship. However, while there was evidence that Pauni expressed love
for his child and a desire to provide a stable home for her, the juvenile court concluded
that those expressions did not outweigh the child's need for permanence and stability.
The evidence established that Pauni failed to consistently visit his daughter and failed to
make progress in approximately two years in addressing his domestic violence, anger
issues, or mental health. While Pauni stated on multiple occasions that he was
motivated to do whatever was needed in order to reunify with M.-K. P., he did not
engage in the recommended counselling or mental health assessment and did not take
steps to secure housing that would allow him to care for his child. And for a substantial
period of the dependency, he did not see M.-K. P. even once. There is no basis to
disturb the court's finding by a preponderance of the evidence that termination of
parental rights was in the child's best interests.
Constitutionality of Termination Statutes
Pauni argues that RCW 13.34.180 and 13.34.190 are unconstitutional because
the statutes are not narrowly drawn to achieve a compelling state interest. Specifically,
he contends that because the statutes do not require proof that adoption is imminent,
they permit termination of parental rights without a showing that such termination is
necessary, or is the "least restrictive means capable of preventing harm to the child."
Applying the standard of strict scrutiny to this case, we hold that these statutes are not
unconstitutional.
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This court reviews challenges to the constitutionality of a statute de novo. In re
Welfare of A.W. 182 Wn.2d 689,701, 344 P.3d 1186 (2015). A statute is presumed to
be constitutional, and the party challenging that presumption bears the burden of
proving beyond a reasonable doubt the statute is unconstitutional. A.W., 182 Wash. 2d at
701. One asserting a facial challenge to a statute must also prove "no set of
circumstances exists in which the statute, as currently written, can be constitutionally
applied." In re Dependency of I.J.S., 128 Wash. App. 108, 115-16, 114 P.3d 1215(2005);
McDevitt v. Harborview Medical Center, 179 Wn.2d 59,74, 316 P.3d 469(2013).
A parent has a fundamental liberty interest in the care and custody of his
children. In re Dependency of J.H., 117 Wn.2d 460,473, 815 P.2d 1380(1991). The
State may only interfere with this interest if it has a compelling interest and the statutes
are narrowly tailored to meet only that compelling state interest. In re Parentage of
C.A.M.A., 154 Wash. 2d 52, 57, 109 P.3d 405(2005)."Washington allows State
interference with a parent's protected right to raise her children only where the State
seeks to prevent harm or risk of harm to the child." In re Welfare of C.B., 134 Wash. App.
336, 343, 139 P.3d 1119(2006).
This court has rejected a number of similar claims that the statutes governing
termination do not require the Department to establish that termination is the least
restrictive means to address compelling state interests and therefore unconstitutionally
violate a parent's fundamental liberty interest. See In re Welfare of L.N.B.-L., 157 Wn.
App. 215, 256-57, 237 P.3d 944(2010)(rejecting the argument that the statute is
unconstitutional because it does not require the juvenile court to consider less restrictive
alternatives such as a temporary continuation of the dependency, dependency
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guardianship, third-party custody, or open adoption prior to termination); In re Welfare of
M.R.H. 145 Wash. App. 10, 31, 188 P.3d 510(2008)(rejecting the argument that the
statute is unconstitutional because it does not require the juvenile court to consider
whether the less restrictive alternatives of guardianships or open adoptions would be
harmful); In re Dependency of T.C.C.B., 138 Wash. App. 791, 797-800, 158 P.3d 1251
(2007)(rejecting the argument that the termination statutes are not narrowly tailored to
achieve a compelling state interest because they do not require only that degree of
regulation necessary to prevent harm); GB., 134 Wash. App. at 343-46 (rejecting the
argument that the termination statutes are not narrowly drawn because the statutes
allow termination without first showing that no less restrictive alternatives exist, namely
dependency guardianship); I.J.S., 128 Wash. App. at 118, 119-21 (rejecting the argument
that the State must prove that dependency guardianship is not a viable alternative to
termination, regardless of whether a dependency guardianship petition has been filed).
This court's rationale in I.J.S. is representative: "[T]he termination statutes are narrowly
drawn because the State must prove that the relationship with the parents harms or
potentially harms the child before the court can terminate parental rights! I.J.S. 128
Wash. App. at 118; M.R.H., 145 Wash. App. at 31; C.B., 134 Wash. App. at 345.
Nevertheless, Pauni claims that the only compelling state interest served by the
"full termination" of parental rights is "achieving permanency for the child through
adoption to prevent the specific harm of ongoing instability." He maintains that the
State's interest in achieving such permanency could be addressed without terminating
parental rights prior to adoption. For instance, he suggests that the juvenile court could
terminate some of the biological parent's rights, such as the right to object to future
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adoption, and could then terminate the parent's full rights simultaneously with the
adoption. Pauni asserts that terminating the parental relationship before adoption
merely eliminates one potential avenue for achieving permanency for the child.
RCW 13.34.180(1)(f) requires the Department to prove that continuation of the
parent and child relationship clearly diminishes the child's prospects for early integration
Into a stable and permanent home. Pauni argues that this provision does not
sufficiently narrow the scope of the termination statue because it does not require
specific proof that a permanent adoptive home is available at the time of termination
and only achieves a "slight theoretical increase In the likelihood of adoption." In re
Dependency of K.D.S., 176 Wn.2d 644,658, 294 P.3d 695(2013). The Department
may satisfy ROW 13.24.180(1)(f) by proof that(1) prospects for a permanent home exist
but the parent-child relationship prevents the child from obtaining that placement or(2)
the parent-child relationship has a damaging and destabilizing effect on the child that
would negatively impact the child's integration into any permanent and stable
placement. In re Welfare of R.H., 176 Wash. App. 419, 428, 309 P.3d 620(2013). The
statute recognizes that continuation of the legal parental relationship is a barrier to
adoption and that there is a limited timeframe for establishing permanency which cannot
be achieved until parental rights are terminated. Pauni's argument fails to appreciate
that adoption presupposes termination of the rights of biological parents and that
continuation of the legal relationship undermines the child's right to permanency when
the factors under ROW 13.34.180(1) are satisfied. T.C.C.B., 138 Wash. App. at 800;
ROW 26.33.100; ROW 26.33.260(1).
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It is Pauni's burden to establish that no set of circumstances exists in which the
statute can be constitutionally applied. The factual circumstances here further
undermine his argument because according to the evidence, M.-K. P. was placed in a
preadoptive home where her caregiver had been investigated and approved by the
Department to become an adoptive parent when and if she became available for
adoption. Pauni has failed to prove beyond a reasonable doubt that RCW 13.34.180
and 13.34.190 are unconstitutional.
Affirmed.
WE CONCUR:
evzR.
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