IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of ) No. 80490-1-I ) J.D.P. and J.D.P., ) DIVISION ONE ) Minor Children. ) PUBLISHED OPINION )

MANN, C.J. — Amber Heilman-Blanton and Anthony Parker, the biological

parents of Jae and Jav, appeal the trial court’s order terminating their parent-child

relationships with their two youngest children. 1 They argue that the court violated their

right to due process by excluding evidence of the sibling relationships as part of the

termination trial, that the Department of Children, Youth, and Families (Department)

failed to provide Heilman-Blanton with all the necessary services required in a

termination proceeding, and that the best interests of the child statute is

unconstitutionally vague as applied to the facts of the case. We affirm.

1 The two children who are the subject of this appeal share the initials J.D.P. We refer to them as

Jae and Jav. Their two older siblings are referred to collectively as “the older siblings” and individually as J.A. and A.E.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 80490-1-I/2

FACTS

Heilman-Blanton and Parker were married and have four children together: J.A.

A.E., Jae, and Jav. At the time of the termination trial, the children were 14 years old,

10 years old, 3 years and 7 months, and 1 year and 9 months, respectively.

The parents first became involved with the Department in connection with the

older siblings. J.A. was dependent from October 2007 to May 2008 and then returned

home. A.E. was dependent from March 2012 to March 2015 and then returned home.

In July 2015, the older siblings were living with their paternal grandmother; the parents’

whereabouts were unknown. The older siblings were taken into protective custody in

late July 2015 after they reported abuse by their grandmother.

Jae was born exposed to opiates in October 2015. The mother used heroin two

days prior to Jae’s birth and was hospitalized for drug-withdrawal several times during

her pregnancy. Although the court originally placed Jae with his father, he was arrested

two days later for drug possession, theft, and counterfeiting. The father was arrested

again a month later on multiple warrants, a new drug charge, and forgery. The mother

also had a lengthy criminal history, including convictions for drug use and delivery,

counterfeiting, drug possession, prostitution, and identity theft. The mother agreed to

an order of dependency on August 22, 2016, and the father agreed to an order of

dependency on March 2, 2016. Both parents were in custody at the time the

dependency orders were entered. Except for the brief time he was with the father prior

to his arrest, Jae has never lived with his parents.

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While the parents did not visit A.E., J.A., or Jae, for almost a year, they had

progressed in services and resumed visitation by the summer of 2016. The court

placed J.A. with the parents in May 2017. The parents had overnight unsupervised

visits with A.E. and Jae during this time.

Jav was born in September 2017 and resided with his parents for the first two-

and-a-half months of his life, as the parents were complying with the required services

under the dependencies of the older children. On November 15, 2017, U.S. Marshals

executed federal arrest warrants on the parents for failure to comply with their

conditions of release. J.A. and Jav were at the home. The Marshals discovered Jav in

a bedroom with a plastic bag containing a black, sticky, tar-like substance, later

identified as heroin. Both parents were incarcerated, and the Department subsequently

filed a dependency petition for Jav. The court declared Jav dependent as to the mother

on March 2, 2018, and declared Jav dependent as to the father on April 3, 2018.

While the parents had periods of compliance with services, they have been

unable to maintain sobriety, be free from criminal activity, or keep a stable home. In the

dependency cases of Jae and Jav, the mother agreed to 90 days of weekly urinalysis

(UA) tests, to complete a new drug and alcohol evaluation and to follow the treatment

recommendations, to attend parenting classes, to complete a psychological evaluation

with a parenting component, and to continue to follow the treatment recommendations

in place in the dependencies of the older siblings.

The mother received multiple referrals to conduct the UAs, but failed to show up

three times. The mother’s probation was revoked for violations including missed

treatments and UAs and cocaine use. A warrant was issued for her in October 2018

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and March 2019. She was further found not in compliance based on the allegations of

possession of heroin and reckless endangerment of a child from the execution of the

warrant. The mother violated her federal probation when she used methamphetamine

in January 2017 and consumed alcohol in July 2017. The Department offered her

parenting classes, bus tokens, and ORCA cards throughout the dependencies.

The State referred the mother to three different providers to complete her

psychological evaluation. The State referred her to Dr. Dana Harmon but the mother

terminated the visit. The State referred her to an evaluation with Dr. Lauren McCollom

but she refused to complete the required re-testing. The State also referred her to Dr.

Steve Tutty and she completed the initial testing, but she did not complete the parent-

child observation prior to being remanded into custody.

Additionally, Family Treatment Court (FTC) accepted the mother in August 2018.

She agreed to remain drug and alcohol free, to engage in random drug tests, and to

attend two sober support meetings a week. FTC discharged her in April 2019 after she

missed UAs, failed to obtain a drug and alcohol assessment, was not in treatment, and

did not sign releases of information.

Jae and Jav were placed together with foster parents and have never been

returned to the biological parents’ care. After the parents’ arrests, the older siblings

were placed with the mother’s fictive aunt, Dayna Hicks, in Philadelphia. After a year

living with Hicks, J.A. disrupted his placement and returned to Washington, where he

lacked a permanent placement. A.E. remained in Philadelphia with Hicks. The older

siblings remain dependent and have had periods of infrequent contact with Jae and Jav.

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The Department filed for termination of parental rights to Jae and Jav in

December 2018. Prior to trial, the parents subpoenaed Jae and Jav’s foster parents for

depositions. They argued that “the foster parents’ testimony is relevant to inform the

court about the siblings’ prospects for continued communication and relationships if the

court determines that severing the sibling relationship via termination of the parent-child

relationship should occur.” The Department and the children’s Court Appointed Special

Advocate (CASA), Eddie Hill, moved to quash the subpoenas, arguing that sibling

relationships were not at issue in the termination. On January 8, 2019, the trial court

agreed and quashed the subpoenas after finding that the foster parents were not “likely

to have information that is likely to lead to any relevant information to the pending

termination matters or dependency review cases, even under the liberal discovery rules

outlined in CR 26.”

In May 2019, the older siblings moved to intervene in the termination proceeding.

The parents supported these motions and argued that the trial court should hear

evidence about the sibling bonds when determining whether termination of parental

rights was in the best interests of Jae and Jav. The Department and CASA opposed

intervention. On May 26, 2019, the trial court denied the motions to intervene, after

weighing the requirements for permissive intervention under CR 24, and finding that

“the siblings have failed to articulate a common question of law or fact that would

support intervention.” The court further explained that “concerns about ongoing sibling

contact are best addressed in other proceedings, namely the dependency.”

The mother identified Dr. JoAnne Solchany as a potential expert witness who

would testify about the best interests of the children, their relationship with their parents

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and their siblings, as well as their current bond and current placements. The court

excluded the testimony, finding that “[a]ny evidence about the longevity and future of the

sibling communication, visits or relationship is not relevant in determining whether the

Department has met its burden of proving termination under RCW 13.34.180 and.190,

and current unfitness.” The court limited the evidence about sibling relationships to

RCW 13.34.200(3).

The termination trial was held over nine days in June and July 2019. Both

parents had relapsed on illegal substances in February 2019. During the termination

trial, both parents were incarcerated, but were present at trial and represented by

counsel.

The trial court considered the testimony of both parents, two primary social

workers involved in the case, the CASA, and limited testimony on behalf of the mother

by Dr. Solchany. Consistent with pretrial rulings, the trial court sustained objections

from the Department and CASA during the trial when the parents attempted to bring up

sibling bonding and placement through other witnesses. Some testimony was allowed

in on basic facts about where each sibling lived and the frequency of current contacts

with each other.

The trial court terminated the rights of both parents to Jae and Jav. The court

found that the Department offered and provided the services ordered under RCW

13.34.136, but both parents failed to comply with their court ordered services. The court

found that “any progress made by the parents in correcting their parental deficiencies

has been minimal to date. These parental deficiencies, which directly relate to their

ability to parent [Jae and Jav] . . . include failure to satisfactorily address issues related

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to their substance use and addiction, undiagnosed mental health disorders, and failure

to remain out of incarceration.”

Both parents appealed. 2 The father passed away while this appeal was

pending. 3

ANALYSIS

Termination may be ordered when the six statutory elements of RCW

13.34.180(1)(a) through (1)(f) are established by clear, cogent, and convincing

evidence. 4 RCW 13.34.190(1)(a). The clear, cogent, and convincing evidence

standard is satisfied when a court determines that the ultimate fact at issue is shown to

be “highly probable.” In re Welfare of Sego,

,

(1973).

The court must also find by a preponderance of the evidence that termination is in the

best interests of the child. RCW 13.34.190(2); In re Dependency of H.W.,

The CASA filed a brief in support of the Department. The parents object to our consideration of the CASA’s brief. Although we declined to consider a guardian ad litem (GAL) brief in Matter of W.W.S.,

, 351,

(2020), our holding does not indicate that we will never consider brief from a GAL or CASA. This court has the discretion to consider briefs from nonparties. RAP 10.1(h). In an exercise of discretion, we have reviewed the CASA’s brief. 3 The Department moved to dismiss the father’s appeal for mootness. “Generally, this court will

not review a moot case; but we will review the case if it presents issues of continuing and substantial public interest. In re Dependency of Z.J.G.,

,

(2020). While we agree with the Department that we cannot grant the father relief, we have considered his briefing and argument. 4 The six statutory elements in RCW 13.34.180(1) 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. . . ., and (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.

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420, 425,

(1998). The preponderance of the evidence standard is

satisfied when the findings of fact are supported by “substantial evidence,” which is

evidence in sufficient quantum to persuade a fair-minded person of the truth of the

declared premise. Ridgeview Props. v. Starbuck,

,

(1982). Whether termination is in a child’s best interests must be determined by the

unique facts of each case. In re Welfare of Aschauer,

,

(1980).

In a termination proceeding, the trial court is afforded broad discretion and its

decision is entitled to great deference on review. In re Dependency of A.M.,

,

(2001). The deference paid to a trial judge’s advantage in

having the witnesses before it is particularly important in termination proceedings

because only a trial court can observe a witness’s demeanor. Sego,

-

40.

A. Evidence of Sibling Relationships

The parents argue that the trial court violated their right to present a defense by

excluding evidence of the sibling relationships. This includes the trial court’s decisions

limiting the testimony of Dr. Solchany, denying intervention of the older siblings, and

quashing subpoenas for the foster parents.

“The due process clause of the Fourteenth Amendment protects a parent’s right

to the custody, care, and companionship of her children,” a right which “cannot be

abridged without due process of law.” In re Welfare of Key,

,

(1992). In assessing whether a parent has been provided with a procedure

that comports with the requirements of due process, courts consider “(1) the parents’

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interests; (2) the risk of error created by the State’s chosen procedure; and (3) the

State’s interest.” Key,

; Mathews v. Eldridge,

,

,

(1976). “[T]he State and the child have a strong

interest not only in establishing a stable and permanent home for the child, but also

doing it as soon as possible.” In re Dependency of C.R.B.,

,

(1997); see also RCW 13.34.020 (“The right of a child to basic nurturing

includes the right to a safe, stable, and permanent home and a speedy resolution of any

proceeding under this chapter.”).

At a minimum, “[d]ue process requires that parents have notice, an opportunity to

be heard, and the right to be represented by counsel.” Key,

. Due

process also requires that “parents have the ability to present all relevant evidence for

the juvenile court to consider” before terminating parental rights. In re Welfare of R.H.,

,

(2013). At issue here, is whether the parents

were deprived of their right to present relevant evidence.

We review questions concerning the admissibility of evidence in a dependency

proceeding for an abuse of discretion. In re Interest of J.F.,

,

(2001). Although we disagree with the State’s argument that evidence of a

sibling relationship is never relevant at termination, here, the trial court did not abuse its

discretion by barring evidence of Jae and Jav’s relationship with their older siblings

beyond the evidence necessary for the statement on sibling relationships as required by

RCW 13.34.200(3).

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1. Juvenile Courts Act

The mother argues that the Juvenile Courts Act (Act), ch. 13.34 RCW, as a

whole reflects the importance of sibling relationships throughout various provisions.

The mother’s argument fails to acknowledge that there are separate phases in the Act

with different purposes and requirements. Her citations are to dependency and

placement requirements; not terminations. The termination provisions are in place as

an alternative to dependency, for when the family unit no longer serves the best needs

of the child as set forth in RCW 13.34.020. 5 Requirements for dependency proceedings

are not the same as for termination proceedings:

A dependency proceeding and a termination proceeding have different objectives, statutory requirements, and safeguards. In re Hiebert, 28 [Wn. App.] 905, 908,

(1981); compare RCW 13.34.130 with RCW 13.34.180 and RCW 13.34.190. The key difference is the dependency hearing is “a preliminary, remedial, nonadversary proceeding” that does not permanently deprive a parent of any rights. In re A.W., 53 [Wn. App.] 22, 30,

(1988), review denied, 112 [Wn.2d] 1017 (1989). A finding of dependency does not inevitably lead to a termination of parental rights. In re [Welfare of] Churape, 43 [Wn. App.] 634, 639-40,

(1986) (fact that child in long-term foster care not determinative in deciding whether to terminate parental rights). In re J.P.’s focus is solely on termination proceedings. Its reasoning does not apply to dependency proceedings.

Key,

.

5 RCW 13.34.020 provides:

The legislature declares that the family unit is a fundamental resource of American life which should be nurtured. Toward the continuance of this principle, the legislature declares that the family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety is jeopardized. 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. In making reasonable efforts under this chapter, the child's health and safety shall be the paramount concern. The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.

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The statutes cited by the mother all seek to preserve and strengthen family ties

within the dependency or permanent placement portions of the Act. See RCW

13.34.060 (shelter care provider must be willing to facilitate visitation with siblings);

RCW 13.34.065 (during shelter care hearing, court must inquire into the terms and

conditions for sibling visitation); RCW 13.34.130 (after a finding of dependency the

department may consider placement with sibling); RCW 13.34.138 (permanent

placement plan of care must include steps to promote existing sibling relationships

and/or placement together); RCW 13.34.145 (permanency placement planning hearing

must consider sibling relationships); RCW 13.34.210 (when a child is not immediately

adopted after termination, Department must take reasonable steps to ensure sibling

relationships); and RCW 13.34.260 (preferences for sibling relationships must be

considered when matching children to foster homes). These dependency and

placement requirements are distinct from the termination requirements in RCW

13.34.180(1) and .190(1)(b).

In contrast with dependency and placement requirements, the status of sibling

relationships is not included within the six required elements of RCW 13.34.180(1) or

RCW 13.34.190(1)(b). This is because the termination proceeding is focused solely on

whether the parental relationship should be terminated as to the children involved in the

proceeding. Just because the parents might have other children that were previously

placed in separate households, those separate placements cannot form a basis for

denying termination where the needs of the children involved in the termination before

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the court are not being met. Sibling relationships are addressed during dependency,

placement, and adoption—not during a termination. 6

2. RCW 13.34.200(3)

The mother next argues that RCW 13.34.200(3) provides an independent

specific requirement for the court to consider sibling relations as part of the termination

proceeding. RCW 13.34.200(3) states

An order terminating the parent-child relationship shall include a statement addressing the status of the child’s sibling relationships and the nature and extent of sibling placement, contact, or visits.

RCW 13.34.200(3) must be interpreted from its ordinary meaning, within the

context of the statute, related provisions, and the statutory scheme as a whole.

Christensen v. Ellsworth,

,

(2007). Unlike RCW

13.34.190(1)(a) and (b), which require the trial court to make findings that the

requirements of RCW 13.34.180(1) are established by clear and convincing evidence,

and a finding that termination is in the best interests of the child, RCW 13.34.200(3) is a

separate provision. As discussed above, the status of sibling relations is not a required

element to support a termination finding. Instead, RCW 13.34.200(3) requires only that

the trial court include a statement in the termination order concerning the status of

sibling relationships. Unlike the required findings in RCW 13.34.190(1)(a) and (b), RCW

13.34.200(3) is more akin to a ministerial requirement that ensures that the termination

6 Indeed here, after the order terminating the parental rights was entered, A.E. moved that Jav

and Jae be placed with him under the care of Dayna Hicks. While the Department and CASA advocated for Jav and Jae to remain with the foster parents, the trial court granted A.E.’s motion and concluded that it was in the best interests of the children to be placed with Hicks.

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order acknowledges the existence and status of sibling relationships. Here, the trial

court included just such a statement:

The status of the children’s sibling relationships and the nature and extent of sibling placement, contact, or visits is as follows: the older siblings remain dependent and visitation is ordered in the dependency matters. [Jav and Jae] have had infrequent contact with their two older brothers; some of this contact has been by telephone or video/skype services. One of the two older brothers lives in Pennsylvania and the other was most recently out of state in Mississippi for a month or had been on the run from his ordered placement here in King County.

RCW 13.34.200(3) does not create an independent requirement that the trial

court consider sibling relationships in making the required findings in RCW

13.34.190(1)(a) and (b) necessary for termination. The trial court did not abuse its

discretion in excluding testimony of sibling relationships over that required to make the

statement required by RCW 13.34.200(3).

3. Best Interests of the Child

The parents argue that the best interests of the child analysis required by RCW

13.34.190(1)(b) necessarily encompasses all relevant considerations, including the

sibling relationship.

The Department must prove that termination is in the best interests of the child

under RCW 13.34.190(1)(b) by a preponderance of the evidence. In re Parental Rights

to K.M.M.,

,

(2016). “The criteria for establishing the

best interests of the child are not capable of exact specification because each case is

largely dependent upon its own facts and circumstances.” In re Dependency of J.S.,

,

(2002). Due to the individual facts of each case,

“the courts have broad discretion and are allowed considerable flexibility to receive and

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evaluate all relevant evidence in reaching a decision that recognizes both the welfare of

the child and parental rights.” In re Welfare of Becker,

,

(1976).

The parents again muddle the termination proceeding with the distinct issues of

dependency, placement, and adoption. A child’s best interests in the dependency

context include the right to a safe and suitable placement and require comparisons of

alternative living situations. RCW 13.34.130; RCW 13.34.136(2) and (6); RCW

13.34.145(1), (4), (8), and (15). In adoption proceedings, the best interests analysis

includes evaluation of how potential adoptive parents will deal with a child’s relative

connections. RCW 26.33.190; RCW 26.33.240. Neither of these standards address

the best interests of a child at termination, which focuses on whether the parent-child

relationship should continue. In re Dependency of A.W., 53. Wn. App. 22, 33,

(1988) (termination is “fully justified” as in child’s best interests when balancing

parent’s inability to improve verses leaving child “in limbo . . . for an indefinite period”).

While there might be situations where the best interests of the child mean

keeping a parent involved with a child in order to facilitate a sibling relationship, this is

not the case here. The trial court clearly considered all relevant evidence, including

recognizing Jae and Jav’s sibling relationships. Here, the uncontested finding of the

trial court indicated that (1) Jae and Jav were unlikely to return to their parents’ care in

the near future; (2) both parents testified that they were not in a position to parent; (3)

neither parent, during extended times when they were not incarcerated visited Jae and

Jav or engaged in court ordered services; (4) the children had visited sporadically with

their two older siblings, both of whom were out of state and one on the run from care at

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the time of termination; (5) Jae and Jav were adoptable and had prospects for adoption

into a stable and permanent home; (6) the parents were unfit to parent; and (7) Jae and

Jav’s “physical and psychological health would be at risk if they were placed with either

parent at this time.”

While a trial court could abuse its discretion by not considering any evidence of

the sibling relationship, the trial court did not abuse its discretion in this case by

concluding additional evidence of the sibling relationships in this case was irrelevant to

the termination proceedings, and therefore denying the older siblings’ motion to

intervene, quashing the subpoenas for the foster parents, and limiting the expert

testimony on sibling relationships. 7

The parents were provided notice, an opportunity to be heard, the right to be

represented by counsel, and the right to present relevant evidence. The parents were

not deprived of due process.

B. Related Rulings

The mother raises as separate claims that the trial court erred in denying the

older siblings’ motion to intervene and by quashing subpoenas for the foster parents.

We disagree.

1. Intervention

Civil Rule 24 governs motions to intervene in dependency and termination

proceedings. In re Dependency of J.H.,

,

(1991).

7 Amici King County Department of Public Defense and Washington Defenders Association

raised additional arguments about how the children’s relationships and racial identity should be considered under the best interests standard. While we recognize the importance of the concerns raised, here, neither parent raised this issue on appeal. We will not address arguments only raised in amicus briefs, and not addressed by the appellant. City of Seattle v. Evans,

, 861 n.5,

(2015).

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CR 24(a)(2) allows intervention as a matter of right where the party seeking to intervene

establishes “(1) timely application for intervention; (2) an applicant claims an interest

which is the subject of the action; (3) the applicant is so situated that the disposition will

impair or impede the applicant's ability to protect the interest; and (4) the applicant's

interest is not adequately represented by the existing parties.” Westerman v. Cary,

,

(1994). We review a denial of a motion to intervene as

a matter of right for error of law. Westerman,

.

The mother fails to demonstrate that the trial court erred as a matter of law.

While certainly the older siblings may have a natural interest in the fate of their younger

siblings, as discussed above, the Act focuses on the interests of siblings in the

dependency and placement proceedings, not in termination proceedings. There is

already a forum for the older dependent siblings to address their relationships with the

younger siblings: their own dependency proceedings. A dependent child’s contact with

siblings is addressed in the statutes describing dependency procedures, not termination

procedures. Compare RCW 13.34.130(1)(b)(iii) and RCW 13.34.130(6) (order of

disposition for a dependent child); RCW 13.34.136(2)(b)(ii)(A) and RCW 13.34.136(g)

(permanency plan of care); with RCW 13.34.180(1) and RCW 13.34.190(1)(b)

(termination). The trial court did not err in denying intervention as a matter of right.

Under CR 24(b)(2), a trial court may grant permissive intervention where the

applicant’s claim and the main action have a question of law or fact in common. The

decision of a trial court to allow or deny permissive intervention in a dependency is

within the court’s informed discretion and will not be disturbed absent an abuse of

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discretion. A trial court abuses its discretion when no reasonable person would take the

position taken by the trial court. J.H.,

.

The mother posits that the trial court abused its discretion because it based its

decision on a misunderstanding of the law—that it believed the sibling relationship was

irrelevant to the termination case. Because we agree with the trial court’s decision

limiting testimony of the sibling relationship, we cannot conclude that it abused its

discretion in denying the older siblings permissive intervention.

2. Subpoenas for Foster Parents

A trial court abuses its discretion in denying or limiting discovery if its order is

based on an erroneous view of the law, is based on untenable grounds, or is manifestly

unreasonable. Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp.,

,

(1993). The mother argues that the trial court abused

its discretion because it based its decision on a misunderstanding of law—again, that it

believed the sibling relationship was irrelevant to the termination case. Because we

agree with the trial court’s decision limiting testimony of the sibling relationship, we

cannot conclude that it abused its discretion in quashing the subpoenas for the foster

parents.

C. Mother’s Provision of Services

The mother argues that the Department failed to prove that it provided her with

all necessary services while she was incarcerated. We disagree.

RCW 13.34.180(1)(d) requires the Department to prove by clear, cogent, and

convincing evidence that “the services ordered under RCW 13.34.136 have been

expressly and understandably offered or provided and all necessary services,

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reasonably available, capable of correcting the parental deficiencies within the

foreseeable future have been expressly and understandably offered or provided.”

“Necessary services” are those services “needed to address a condition that precludes

reunification of the parent and child.” In re Dependency of M.-A.F.-S., 4 Wn. App. 2d.

425, 465,

(2018) (quoting K.M.M.,

). The record

supports that the Department provided services to the mother during the time she was

both in and out of incarceration over the course of four years. Social worker Charles

Loeffler coordinated with the mother’s federal probation officer, seeking to overlap

services in the criminal and dependency cases so that services were not duplicative.

The mother also received emotional support from the FTC Treatment Specialist who

advocated for her. FTC staff worked with the mother in a therapeutic way to engage her

in services because they were aware of the challenges she faced, giving her multiple

chances to focus on small steps to start moving forward.

The Department referred the mother for a psychological evaluation with a

parenting component on at least three different occasions. Social worker Robert Credle

referred her to Dr. Harmon sometime in 2016 or the beginning of 2017. Later the

Department referred her to the service with Dr. McCollum prior to Jav’s birth. Although

Dr. McCollum wrote the evaluation, he determined the results were invalid. The

Department then re-referred the mother for a psychological evaluation with Dr. Tutty.

The trial court considered the incarcerated parent factors set forth in RCW

13.34.180(1)(f) and .145(5)(b), 8 finding:

8RCW 13.34.145(5)(b) states: (b) The court’s assessment of whether a parent who is incarcerated maintains a meaningful role in the child's life may include consideration of the following:

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As the parents have each been incarcerated at times during the dependencies of these two children and were incarcerated at the time of trial, the Court has given consideration to factors identified in RCW 13.34.180(1)(f) and RCW 13.34.145(5)(b), including barriers to services; reasonable efforts made by the [Department], and whether the parents maintained a meaningful role in the lives of [Jav and Jae].

The trial court found that the testimony of Credle, Loeffler, and the CASA

“provided credible evidence supporting the above findings.” Credle testified that there

were long periods of time during the dependencies for both children when the mother

was not incarcerated. During the mother’s incarceration, Credle remained in touch with

her. During her incarceration, she did not ask to convey writings or communications to

Jae and Jav. Nor did she ask to set up phone calls. While the mother was in prison at

the SeaTac Federal Detention Facility, visitation with her and the children was arranged.

During the times she was not incarcerated, she had sufficient time to complete

the dependency services. According to Credle, the mother “was pretty much resistant

to [participating] in all services” offered by the Department. When the mother was in

prison in Victorville, California, and at SeaTac, Credle investigated what services were

available. Credle was in communication with the mother during her first incarceration as

(i) The parent’s expressions or acts of manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child; (ii) The parent’s efforts to communicate and work with the department or other individuals for the purpose of complying with the service plan and repairing, maintaining, or building the parent-child relationship; (iii) A positive response by the parent to the reasonable efforts of the department; (iv) Information provided by individuals or agencies in a reasonable position to assist the court in making this assessment, including but not limited to the parent’s attorney, correctional and mental health personnel, or other individuals providing services to the parent; (v) Limitations in the parent’s access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate in foster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and (vi) Whether the continued involvement of the parent in the child's life is in the child's best interest.

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well from November 2017 until August 2018 and arranged for visitation with her and the

children.

The trial court also found it significant that during times when the parents were

not incarcerated, they did not visit Jae or Jav. The court further found that the children

were adoptable and had prospects for adoption into a stable and permanent home, and

that they were bonded to a home other than that of their biological parents. Sufficient

evidence supports the trial court’s findings that necessary services were provided and

its findings related to the incarcerated parent factors.

D. Best Interests of the Child Standard

The father argues that the best interests standard under RCW 13.34.190 is

unconstitutionally vague as applied to his case. We disagree.

We review the constitutionality of a statute de novo. State v. Eckblad,

,

(2004). “Statutes are presumed constitutional, and the

challenger of a statute must prove beyond a reasonable doubt that the statute is

unconstitutional.” In re Welfare of A.W.,

,

(2015).

When considering a vagueness challenge, our first step is to determine whether

we examine the statute as it applies to the particular case or on its face. City of

Spokane v. Douglass,

,

(1990). Vagueness

challenges that do not implicate First Amendment rights are evaluated in light of the

particular facts of each case. City of Bremerton v. Spears,

,

(1998). Termination proceedings do not involve First Amendment rights,

therefore, we examine the vagueness challenge as applied to this case. In re Welfare

of H.S.,

,

(1999).

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“A statute is void for vagueness if it is framed in terms so vague that persons of

common intelligence must necessarily guess at its meaning and differ as to its

application.” In re Contested Election of Schoessler,

,

(2000). In In re Dependency of A.D.,

,

(2016), this court held that meaningful appellate review is available based on RCW

13.34.190 because the trial court makes detailed, specific findings of fact to support its

decisions. We strongly rely on the trial court’s determinations of the child’s best

interests, and we will not second guess evidence and credibility determinations. In re

Interest of Pawling,

,

(1984).

Our case law dictates that the best interests of the child standard must take into

account each individual circumstance of the child. In re Dependency of A.V.D.,

,

(1991) (“Washington courts have held that the factors

involved in determining the ‘best interests’ of a child are not capable of specification;

rather, each case must be decided on its own facts and circumstances.”). Although the

father alleges the statute is vague as applied to its case, his argument rests on a broad

assertion of the importance of sibling relationships. The court made specific findings

indicating why termination was in the best interests of Jae and Jav due to the parents’

inability to overcome their parenting challenges. “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

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Dependency of T.R.,

,

(2001). The father has

failed to demonstrate that the best interests standard was vague as applied to him. 9

Affirmed.

WE CONCUR:

9 The father asks us to direct the legislature to compile a list of objective factors to guide a court

in exercising its discretion under RCW 13.34.190. Amici support this argument. This court cannot address this argument. McCleary v. State,

,

(2012) (issues of policy and new guidance are not within the role of the court, but rather belong to the legislature).

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