      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re the Dependency of                              No. 69321-2-1
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STATE OF WASHINGTON                                  UNPUBLISHED
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,                                     FILED: May 6. 2013


                     Respondent.




      Cox, J. — Monica Greve appeals the trial court's order terminating her

parental relationship with her daughter, M.M. Greve argues that the statute

governing the termination of parental rights, RCW 13.34.190, is unconstitutionally

vague on its face because it fails to provide against arbitrary enforcement and for

effective appellate review. We disagree and affirm the termination order.

       Monica Greve gave birth to M.M. on March 6, 2010. Soon after her birth,

the State removed M.M. from Greve's care. M.M. has not lived with Greve since

March 2010. On October 2010, a court found M.M. dependent.

      The Department of Social and Health Services filed a petition seeking

termination of Greve's parental rights as to M.M. in March 2012. After a bench

trial, the court terminated Greve's parental rights to M.M. in August 2012.

       Greve appeals.
No. 69321-2-1/2



                         DUE PROCESS AND RCW 13.34.190


       Greve argues that RCW 13.34.190, which directs courts to terminate

parental rights if it is in the best interests of the child, violates a parent's due

process rights. We disagree.

       We review the constitutionality of a statute de novo.1 A statute is
presumed to be constitutional.2 A party challenging that presumption bears the
burden of proving beyond a reasonable doubt that the statute is unconstitutional.3
       "In any vagueness challenge, the first step is to determine if the statute in

question is to be examined as applied to the particular case or to be reviewed on

its face."4 It is well-settled law that a vagueness challenge to a statute that does

not involve First Amendment rights must be decided as applied to the particular

facts of a case.5 As a result, when a vagueness challenge to a statute does not




          1 In re Dependency of K.R.. 128Wn.2d 129, 142, 904 P.2d 1132 (1995).

          2 In re Interest of Infant Child Skinner. 97 Wn. App. 108, 114, 982 P.2d 670
(1999).

          3 In re Dependency of I.J.S.. 128 Wn.App. 108, 115, 114P.3d 1215(2005).

          4 City of Spokane v. Douglass. 115Wn.2d 171, 181, 795 P.2d 693 (1990).

          5 Mavnard v. Cartwriqht. 486 U.S. 356,361, 108 S. Ct. 1853, 100 L. Ed. 2d
372 (1988) ("Vagueness challenges to statutes not threatening First Amendment
interests are examined in light of the facts of the case at hand; the statute is judged
on an as-applied basis."); In re Welfare of H.S., 94 Wn. App. 511, 524-25, 973 P.2d
474 (1999) ("Since First Amendment freedoms are not involved, we consider only
whether the statute is constitutional as applied."); In re Dependency of C.B., 79 Wn.
App. 686, 689, 904 P.2d 1171 (1995) ("[U]nless First Amendment freedoms are
involved, generally we will only consider whether a statute is constitutional as
applied to the facts of the case.").
No. 69321-2-1/3



involve First Amendment interests, a facial challenge to the statute will not be

considered.6

       To terminate a parent-child relationship, Washington courts use a two-step

process.7 The first step of this analysis "focuses on the adequacy of the parents

and must be proved by clear, cogent, and convincing evidence."8 This step
involves the six factors outlined in RCW 13.34.180.9

       The second step, under RCW 13.34.190, requires that the court ascertain

the best interests of the child.10 The best interests of the child must be proved by

a preponderance ofthe evidence.11 Neither RCW 13.34.190 nor 13.34.180
defines the "best interests of the child." As the supreme court explained, "[w]ere

the legislature to define the terms in question more precisely than it has already

done, the result might well be an inflexibility that deterred rather than promoted

the pursuit of the child's best interests."12 Indeed, because every parental
termination is intensely fact-specific, rigid criteria for establishing the best




       6 Douglass. 115 Wn.2d at 182.

          7 In re Welfare of A.B.. 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).

          8 Id. (footnote omitted).
          9id, at 911-12.

          10 Jd, at 912.
          11 In re Dependency of J.A.F.. 168 Wn. App. 653, 667, 278 P.3d 673 (2012).

          12 In re Welfare of Aschauer. 93 Wn.2d 689, 697-98 n.5, 611 P.2d 1245
(1980).
No. 69321-2-1/4



interests of the child are necessarily absent.13
       Greve argues that without specific guidelines, RCW 13.34.190 lacks

necessary standards that would provide uniform termination decisions. She also

contends that it grants broad authority to interfere with parents' childrearing

decisions without providing for effective appellate review. Thus, she argues that

it should be declared void for vagueness.

       But, Greve's challenge to the termination statute's "best interests"

standard is a purely facial one. As we noted above, when a vagueness

challenge to a statute does not involve First Amendment interests, a facial

challenge to the statute will not be considered.14 Greve fails to make any
arguments regarding the application of these standards to her own

circumstances, and thus presents no argument or facts to support an as-applied

challenge. Nor does her facial challenge to RCW 13.34.190 involve First

Amendment rights. Because such a facial challenge is not cognizable under the

law of our state, Greve's argument fails.

       We affirm the termination order.
                                                           dax,T.
WE CONCUR:




       13 Id.
       14
            Douglass. 115 Wn.2d at 182.
