 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Adoption of                 No. 73438-5-I
C.T.K.M.,
D.O.B. 01/29/2009,                               DIVISION ONE
                                                                                             oo;



                     A minor child.              UNPUBLISHED OPINION

                                                 FILED: February 16, 2016


      Trickey, J. — The Fourteenth Amendment's guarantee of equal protection •
                                                                                       C*3
does not require the State to provide parents whose parental rights may be

terminated through adoption proceedings with the same services the State

provides to parents whose parental rights may be terminated through dependency

proceedings. Similarly, the expanded protections afforded to incarcerated parents

whose parental rights may be terminated through dependency proceedings do not

apply to biological parents in adoption proceedings. Here, the trial court properly

determined that Thomas McMahon was an unfit parent and that the termination of

McMahon's parental rights would be in C.T.K.M.'s best interest. We affirm.

                                      FACTS

      Thomas McMahon and Regina Jane Padgett are the biological parents of

C.T.K.M., born January 29, 2009. C.T.K.M. has lived with Timothy and Tammy

Dehnhoff since he was three days old. Tammy Dehnhoff has been C.T.K.M.'s

legal custodian since October 15, 2009.

       McMahon was incarcerated at the time of C.T.K.M.'s birth.        He did not

contact C.T.K.M. until January 2014, when he sent C.T.K.M a birthday card. At

this time, C.T.K.M. was five years old.

       On June 2, 2014, the Dehnhoffs petitioned the trial court for the termination
No. 73438-5-1 / 2


of both McMahon's and Padgett's parental rights pursuant to the adoption statute,

RCW 26.33.120.        McMahon's attempts to contact C.T.K.M. increased after he

received the Dehnhoffs' petitions for adoption and termination of his parental

rights.

          The State terminated Padgett's parental rights on July 8, 2014, after she

failed to appear for her termination proceedings.

          McMahon came before the court in March 2015 for a trial on his parental

rights. Based on the testimony at trial, the court concluded that McMahon was not

a fit and proper parent and had failed to perform his parental duties under

circumstances showing a substantial lack of regard for his parental obligations to

C.T.K.M. The court further concluded that McMahon was refusing to consent to

C.T.K.M.'s adoption contrary to C.T.K.M.'s best interests, and that termination of

McMahon's parental rights for the purposes of adoption by the Dehnhoffs was in

C.T.K.M.'s best interest. Accordingly, the trial court ordered the termination of

McMahon's parent-child relationship with C.T.K.M.

          McMahon appeals.

                                     ANALYSIS

                                   Equal Protection

          McMahon challenges Washington's adoption statute, RCW 26.33.120, on

equal protection grounds.       Specifically, he contends that the United States

Constitution's guarantee of equal protection, contained in the Fourteenth

Amendment, requires that services available to parents in dependency

proceedings under RCW 13.34.180(1)(d) also be available to parents in adoption
No. 73438-5-1 / 3


proceedings. Because McMahon has not shown that he is similarly situated to

parents in dependency proceedings, we disagree.

       Legislative enactments are presumed constitutional, and the burden of

establishing that a statute is unconstitutional rests with the party challenging the

statute. In re Interest of Infant Child Skinner, 97 Wn. App 108, 114, 982 P.2d 670

(1999). The party "must prove beyond a reasonable doubt that the statute is

unconstitutional."    In re Welfare of A.W.. 182 Wn.2d 689, 701, 344 P.3d 1186

(2015).

       The Fourteenth Amendment guarantees "that persons similarly situated

with respect to the legitimate purpose ofthe law must receive like treatment." State

v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996). In order to pursue an

equal protection claim, "the complaining person [must] establish that he or she is
similarly situated with other persons." State v. Handlev. 115 Wn.2d 275, 289-90,
796P.2d 1266(1990).

          "Whether a [party] is similarly situated is an inquiry that is determined by
and relative to the purpose of the challenged law." State v. Pedro, 148 Wn. App.

932, 946, 201 P.3d 398 (2009); see, e.g,, State v. Hamedian, 188 Wn. App. 560,

569-70, 354 P.3d 937 (2015) (relying on the different purposes of the Sentencing

Reform Act and the Juvenile Justice Act to hold that a juvenile offender could not

show that he was similarly situated to an adult offender); State v. Manro, 125 Wn.

App. 165, 175, 104 P.3d 708 (2005) (holding that juveniles were not similarly
situated when one was in juvenile court and one was in adult court, despite

similarity in the nature of the charges against them).
No. 73438-5-1 / 4


       In Skinner, this court determined that failing to provide parents in adoption

proceedings with the services provided to parents in dependency proceedings did

not offend equal protection. 97 Wn. App 108, 118, 982 P.2d 670 (1999). This

court relied on the differing nature of the State's involvement in child welfare and

adoption proceedings to conclude that the parties were not similarly situated.

Skinner. 97 Wn. App. at 117-18. It held that equal protection "'does not require

that individuals in circumstances that are different in relevant ways be treated as if

their situations were the same.'" Skinner, 97 Wn. App. at 118 (internal quotation

marks omitted) (quoting In re Detention of Dvdasco. 135 Wn.2d 943, 951, 959 P.2d

1111 (1998)).

       We adhere to our decision in Skinner.       Our legislature stated that "the

purpose of adoption is to provide stable homes for children" and that the "guiding

principle must be determining what is in the best interest of the child." RCW

26.33.010 (emphasis added). However, as this court has held, "The primary
purpose of a dependency is to allow courts to order remedial measures to preserve

and mend family ties, and to alleviate the problems that prompted the State's initial

intervention." In re Dependency of T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156

(2005) (emphasis added). This builds on the legislature's declarations, set out in

the dependency statute, that "thefamily unit is a fundamental resource ofAmerican

life which should be nurtured" and "the family unit should remain intact unless a

child's right to conditions of basic nurture, health, or safety is jeopardized." RCW

13.34.020.

       In short, parents involved in the dependency and adoption proceedings are
No. 73438-5-1 / 5


not similarly situated to each other. Although both the dependency and adoption

statutes value a child's health and safety, they are clearly guided by different goals:

preserving the family unit versus ensuring a stable home. A parent's interest in

maintaining the right to parent his or her biological child is much more closely

aligned to the purpose of the dependency statute than it is to the purpose of the

adoption statute.      Because these parents are not similarly situated, RCW

26.33.120 does not violate equal protection.

          McMahon argues that he is similarly situated to parents who may have their

parental rights terminated through dependency proceedings, because he also

faces a complete deprivation of the same fundamental right. But McMahon fails

to explain how having the same interest at stake is sufficient to show that the two

classes are similarly situated. For reasons we have already explained, it is not.

Accordingly, we reject this argument.

                    Expanded Protections for Incarcerated Parents

          McMahon next argues that the trial court erred by failing to consider the

expanded protections that the dependency statute provides to incarcerated

parents. We disagree.

          A recent amendment to the dependency statute added the following criteria

for a trial court to consider before terminating an incarcerated person's parental

rights:

          [W]hether a parent maintains a meaningful role in his or her child's
          life based on factors identified in RCW 13.34.145(5)(b); whether the
          department or supervising agency made reasonable efforts as
          defined in this chapter; and whether particular barriers existed as
          described in RCW 13.34.145(5)(b) including, but not limited to,
          delays or barriers experienced in keeping the agency apprised of his
No. 73438-5-1 / 6


       or her location and in accessing visitation or other meaningful contact
       with the child.


RCW 13.34.180(1 )(f). These protections appear only in the dependency statute,

not the adoption statute, so they do not apply in adoption proceedings. As we

explained earlier in this opinion, McMahon is not similarly situated to parents in

dependency proceedings. Therefore, the trial court's failure to consider the

expanded protections was not error on that basis.

       McMahon also argues that his case should be treated as a de facto

dependency, because "it is merely by chance that this matter was a private

adoption and not a dependency."1 He cites no authority for this position. It does

not appear that any adoption cases have imported these protections from the

dependency statute. We decline to do so now.

                                    Due Process


       McMahon claims that Washington's adoption statute violates substantive

due process because it does not require a showing that the biological parent has
harmed or presents a risk of harm to the child before terminating his or her parental

rights. Because Washington courts have already held that a showing that the

biological parent is unfit satisfies due process, we reject McMahon's argument.

       As noted above, legislative enactments are presumed constitutional, and

the burden of establishing that a statute is unconstitutional rests with the party

challenging the statute. Skinner, 97 Wn. App at 114.

       The right to parent one's child is fundamental. Any state law that would

deprive a parent of that right must satisfy due process. In re H.J.P., 114 Wn.2d


1 Br. of Appellant at 21.
No. 73438-5-1 / 7


522, 526-27, 789 P.2d 96 (1990). Washington's adoption statute allows for the

termination of a biological parent's rights

       upon a showing by clear, cogent, and convincing evidence that it is
       in the best interest of the child to terminate the relationship and that
       the parent has failed to perform parental duties under circumstances
       showing a substantial lack of regard for his or her parental obligations
       and is withholding consent to adoption contrary to the best interest
       of the child.

RCW 26.33.120(1). The statute requires the court to find that the biological parent

is unfit. H.J.P., 114 Wn.2d at 531. "Parental unfitness is established by showing

that the nonconsenting parent 'has failed to perform parental duties under

circumstances showing a substantial lack of regard for his or her parental

obligations.'" H.J.P.. 114 Wn.2d at 531 (quoting RCW 26.33.120(1)).

       Our Supreme Court upheld the adoption statute against a substantive due

process attack in In re H.J.P. 114 Wn.2d 522, 526-28, 789 P.2d 96 (1990). The

court was guided by Santoskv v. Kramer, which indicated that due process would

likely require a finding of parental unfitness before terminating a parent's rights.

455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Following H.J.P., our

court has consistently held that requiring a showing of parental unfitness satisfies

due process. See, agL, Skinner. 97 Wn. App at 114 ("[T]he statute's focus on

parental unfitness satisfies] the constitutional standard."); In re Adoption of
McGee. 86 Wn. App. 471, 477, 937 P.2d 622 (1997) ("[T]he ultimate inquiry

required by due process for termination of the child-parent relationship, in all

contexts, is parental unfitness.").

       To support his argument, McMahon relies on In re Custody of Smith, 137

Wn.2d 1, 969 P.2d 21 (1998). There, the court struck down a third party visitation
No. 73438-5-1 / 8


statute because it did not require a finding that the child would be harmed by a

denial of third party visitation rights. Smith, 137 Wn.2d at 20. Parental fitness was

not an issue. The court rejected the contention that the best interest of the child

was sufficient justification for State intervention "where the child's circumstances

are otherwise satisfactory." Smith, 137 Wn.2d at 20. A child's circumstances are

not otherwise satisfactory when his or her parents are unfit.

       McMahon also relies on In re Parentage of C.A.M.A., 154 Wn.2d 52, 109

P.3d 405 (2005) and In re Welfare of Sumev. 94 Wn.2d 757, 621 P.2d 108 (1980).

Neither case supports his argument. C.A.M.A., like Smith, addressed third party

visitation against the wishes of a fit parent. 154 Wn.2d at 57. Sumev held that the

State could impose a temporary residential placement of a child away from his or

her parents even in the absence of a finding that the parents were unfit in order to

protect the child from physical, mental, or emotional harm. 94 Wn.2d at 761-62,

765.

       In short, RCW 26.33.120's failure to require a showing of harm or risk of

harm does not render it unconstitutional.

                          Termination of McMahon's Rights

       McMahon argues that if the adoption statute is constitutionally sound, the

trial court erred in its application of the statute. Specifically, he contends that there

was insufficient evidence to support the trial court's conclusions that McMahon

was currently unfit and that the termination of McMahon's rights was in C.T.K.M.'s
best interest. We hold that the uncontested findings of fact sufficiently support

both of the trial court's conclusions.



                                            8
No. 73438-5-1 / 9


       In reviewing the trial court's decision, we determine if there is substantial

evidence to support the trial court's findings of fact. State v. B.J.S.. 140 Wn. App.

91, 97, 169 P.3d 34 (2007). Then we review de novo ifthe findings of fact support

the conclusions of law. B.J.S., 140 Wn. App. at 97.

       "This court must defer to the trier of fact on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence." State v. Fiser,

99 Wn. App. 714, 719, 995 P.2d 107 (2000). Unchallenged findings of fact are

verities on appeal. B.J.S., 140 Wn. App. at 97.

       Current Unfitness

       McMahon challenges the sufficiency of the evidence supporting the trial

court's determination that he was currently unfit.2 We uphold this conclusion.

       "Parental unfitness is established by showing that the nonconsenting parent

'has failed to perform parental duties under circumstances showing a substantial
lack of regard for his or her parental obligations.'" H.J.P., 114 Wn.2d at 531
(quoting RCW 26.33.120(1)). Parental obligations consist of the following:

       "(1)[E]xpress love and affection for the child; (2) express personal
       concern over the health, education and general well-being of the
       child; (3) the duty to supply the necessary food, clothing and medical
       care; (4) the duty to provide an adequate domicile; and (5) the duty
       to furnish social and religious guidance."

H.J.P., 114 Wn.2d at 531 (alteration in original) (quoting In re Adoption of Lvbbert,

75 Wn.2d 671, 674, 453 P.2d 650 (1969)). The trial court may consider a parent's



2 McMahon claims that the trial court violated his due process rights. A trial court's
termination of a parent's rights without a finding of current unfitness would violate that
parent's due process rights. See In re Welfare of A.B.. 168 Wn.2d 908, 920, 232 P.3d
1104 (2010). However, McMahon is not alleging that the trial court failed to make the
required finding. Br. of Appellant at 15.
No. 73438-5-1/10


past behavior when determining whether the parent is unfit. McGee, 86 Wn. App.

at 478. But it must find that the parent is currently unfit. AJL, 168 Wn.2d at 920-

21.

       Here, the trial court found "that at this specific time Mr. McMahon is not a fit

and proper parent."3 The court's unchallenged findings of fact indicate that

McMahon had no contact with C.T.K.M. for the first five years of his life; did not

provide C.T.K.M. with any religious or social guidance; and had not provided an
adequate domicile for his older children before he was incarcerated. The court

had questions "regarding the credibility of Mr. McMahon" and specifically found
that "McMahon's own statements that he (1) expressed love and affection for

[C.T.K.M.] and (2) expressed personal concern over the health, education, and
general well-being of [C.T.K.M.] are not truthful."4 To McMahon's credit, the trial
court also found that McMahon paid child support to the best of his ability and had

attempted to improve himself since his incarceration began. But with respect to

both findings, the courtalso found that they did not"overcome [McMahon's] history
of failing to perform" other parenting functions.5 These findings strongly support

the trial court's conclusion that McMahon was currently unfit.

       McMahon argues that the trial court improperly considered his past

behavior, especially when compared to his attempts to improve himself. It was

proper for the trial court to consider, as it did, McMahon's past behavior. McGee,

86 Wn. App. at 478.



3 Clerk's Papers (CP) at 28.
4 CP at 21-22 (Findings of Fact (FF) 8, 11).
5 CP at 25 (FF 34, 36).
                                               10
No. 73438-5-1 /11


       McMahon also argues that the Dehnhoffs did not rebut his testimony that

he loved and cared for C.T.K.M. However, rebuttal was unnecessary because the

trial court did not accept McMahon's testimony.

                                    C.T.K.M.'s Best Interests

       McMahon challenges the sufficiency of the evidence supporting the trial

court's determination that it was in C.T.K.M.'s best interest to terminate McMahon's

parental rights. We uphold this conclusion.

       As set out above, the trial court may terminate a person's parental rights

       upon a showing by clear, cogent, and convincing evidence that it is
       in the best interest of the child to terminate the relationship and that
       the parent has failed to perform parental duties under circumstances
       showing a substantial lack of regard for his or her parental obligations
       and is withholding consent to adoption contrary to the best interest
       of the child.

RCW 26.33.120(1).

       Here, the trial court concluded that "it is in the best interests of the minor

child that Thomas McMahon's parental rights be terminated for the purposes of the

adoption of [C.T.K.M.] by Tammy Dehnhoff and Timothy Dehnhoff."6
       The trial court also made the following unchallenged findings of fact.

C.T.K.M. has lived with Timothy and Tammy Dehnhoff since he was three days

old. The Dehnhoffs are wonderful parents and have a great relationship with

C.T.K.M. The Dehnhoffs are, from C.T.K.M.'s perspective, his parents. The expert

who conducted the home study "highly recommended" the Dehnhoffs for adoption

of C.T.K.M.7 C.T.K.M. has formed close relationships with the Dehnhoffs' older



6 CP at 29 (Conclusion of Law I).
7 CP at 26-27 (FF 43-44).
                                            11
No. 73438-5-1/12


children.

       Combined with the conclusion that McMahon is an unfit parent, as

discussed above, these facts are sufficient to show by clear, cogent, and

convincing evidence that it is in C.T.K.M.'s best interest to have McMahon's

parental rights terminated. Therefore, itwas not error for the trial court to terminate

McMahon's parental rights.

       Affirmed.




                                                      l/>ckes< j ^3

WE CONCUR:




  ^,/«^CT,.                                                C^Ti^J ,




                                          12
