          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Dependency of         )       No. 76202-8 -I
                                           )
M -K.G.P.                                  )       DIVISION ONE
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                      Respondent,          )       UNPUBLISHED OPINION
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FAUNITENI PAUNI JR.,                       )
                                           )
                     Appellant.            )      FILED: January 16, 2018
                                           )

       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
No. 76202-8-1/2


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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No. 76202-8-1/3


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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No. 76202-8-1/4


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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No. 76202-8-1/5


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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No. 76202-8-1/7


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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No. 76202-8-1/8


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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No. 76202-8-1/9


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 Wn. 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 Wn. 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 Wn.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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No. 76202-8-1/11


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 Wn.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 Wn.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 Wn. App. 942, 953, 143 P.3d 846(2006). This court does not

make credibility determinations or weigh evidence on review. C.B. 134 Wn. 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 Wn.2d at 925.



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No. 76202-8-1/12


       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

Wn.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 Wn.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 Wn.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 Wn.2d 568, 576-77,257 P.3d 522

(2011). A court may also explicitly make a finding of current parental unfitness. &?

168 Wn.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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No. 76202-8-1/13


       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 Wn.2d 318, 336, n.11, 237 P.3d 263(2010)(citing Cowiche Canyon
Conservancy v Bosley, 118 Wn.2d 801, 809,828 P.2d 549(1992)); RAP 10.3(a)(6).
                                                 -13-
No. 76202-8-1/14


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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No. 76202-8-1/15


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 Wn. 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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No. 76202-8-1/16


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 Wn.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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No. 76202-8-1/17


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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No. 76202-8-1/18


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 Wn. 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 Wn.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 Wn. 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 Wn.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 Wn. 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 Wn. 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 Wn. 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 Wn.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 Wn. 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

Wn. App. at 118; M.R.H., 145 Wn. App. at 31; C.B., 134 Wn. 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 Wn. 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 Wn. 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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