                                                                                                  F
                                                                                             01JRT 01c"
                                                                                                      APPEALS
                                                                                                   DiVISIoM   1,
                                                                                                               1

                                                                                            2013                x.1
                                                                                                                 0
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN ,
                                                                                                        ASafl
                                           DIVISION II                                      BPY
                                                                                                   D6   TY
In re Welfare of.                                                       No. 44044 0 II
                                                                                  - -
                                                                        consolidated with
G. G.
J. .and R. .
 M       M                                                              No. 44050 4 II
                                                                                  - -


                       Minor Children.


                                                               UNPUBLISHED OPINION




       PENOYAR J. — The       juvenile court terminated MG's rights to her daughters JMG and

RMG. She appeals, arguing that the Department of Social and Health Services (the Department)

failed to present sufficient evidence to support the juvenile court's finding that the continuation

of her relationship with RMG clearly diminished RMG's chances of integration into a stable and

permanent home because RMG's father's parental rights are still intact. MG also contends that

the termination statutes violated her right to substantive due process. A commissioner of this

court initially considered MG's appeal on an accelerated basis under RAP 18. 3A and then
                                                                           1

referred it to a panel of judges. Concluding that the termination statutes are constitutional, but

that the juvenile court erred in terminating MG's parental rights as to RMG, we affirm the order
of termination as to JMG but reverse the order of termination as to RMG.

                                                  FACTS


       MG is the mother of JMG, a girl born August 3, 2009, and RMG, a girl born September

15, 2005.     WG, who died December 1, 2009, is listed as the father on both children's birth

certificates. When WG became ill,MG put his name on RMG's birth certificate and after his

death, RMG received social security survivor benefits. In March 2012, GA came forward as the

biological   father of RMG and his   paternity   was later confirmed.
44044 0 II /44050 4 II
      - -         - -




        JMG and RMG came to the Department's attention in April 2010 when it was discovered

that MG was using methamphetamines and was in a relationship with a man she knew to be a

registered sex offender. The Department took the children into protective custody and they were

eventually placed in foster care.

        The court entered agreed orders of dependency as to MG on June 21, 2010. She agreed

that the children were dependent pursuant to RCW 13. 4. that they had "no parent,
                                                 c)
                                                 030(
                                                    6 in
                                                    3 )(

guardian, or custodian capable of adequately caring" for them, such they are "in circumstances
which      constitute    a     danger of substantial damage              to [   their] psychological or physical

development."Ex. 1. Under the dependency dispositional order, MG completed a psychological

evaluation and parenting assessment, out -patient treatment, parenting classes, parent child
                                                                                       -

interactive therapy, and engaged in mental health treatment and counseling. In February 2011,

the children were placed back into MG's care in an in home dependency. 'RP at 14.
                                                      -

        In June 2011, the Department became aware that a man named Murray Ellison had stayed

the night in MG's home. Ellison had admitted to having sexually abused his own children. MG

told the    Department social worker            that she would     no   longer    see   him.   The Department social

worker scheduled                       team decision    meeting    to discuss the children's        placement.   MG
                         a    family

failed to attend the meeting. The Department social worker and guardian ad litem then went to

  s home to
MG'                see       if she   was   there, but the house   was    unoccupied.      Fearful that the children


would again be removed from her care, MG left the state with them, first fleeing to Arizona and

then Florida. The Department was unaware of MG's and the girls' whereabouts until February
2012, when MG           was    arrested in Florida. Her location came a month after MG e-
                                                                                        mailed the


children's guardian ad litem in Washington to inform her that Ellison was grooming RMG to be
his victim.

                                                           2
44044 0 II 7 44050 4 II
      - -          - -



         Law enforcement    brought   MG back to       Washington   on   March 15, 2012.   When the


children returned to Washington State, the juvenile court entered an order returning them to

foster care. MG was subsequently convicted of custodial interference and imprisoned until May

29, 2012. Both the superior court in the criminal case and the juvenile court in the dependency

ordered that MG not have contact with the girls. MG has not had contact with the children since

her arrest.   The children exhibited behavioral issues upon their return from Florida, requiring

them to attend counseling.

         The Department petitioned for termination of parental rights on March 13, 2012. At the

time of the termination trial, the Department had filed a dependency petition as to RMG's father,.

GA,but a dependency had not been established.

         The children's therapist testified that allowing contact with MG would be detrimental in

their efforts towards stabilization, and that the children need "predictability and permanency."

The children's guardian ad litem recommended that MG's parental rights be terminated.

         MG argues that because GA still has parental rights as to RMG, the Department failed to

prove that continuation of MG's parental rights diminished the prospects for RMG's early
integration into a stable and permanent home. The juvenile court entered an order terminating
the parental rights of MG to JMG and RMG.

1
    The finding of fact relating to the element in RCW 13. 4.
                                                         f)
                                                         180(   1 reads:
                                                                3 )(
          Continuance of the parent child relationship clearly diminishes the children's
                                        -
          prospects for integration into a stable and permanent home. Continuing the parent
          child relationship only results in the children remaining in limbo, which severely
          limits their prospects for permanent   placement. The children need extensive,
          lengthy therapy to heal from the trauma they have, experienced while in their
          mother's care. The mother has proven that she simply is not capable of caring for
          them and cannot provide them with a permanent and stable home which they so
       desperately need.
Clerk's Papers (CP)at 44.
                                                   3
44044 0 II /44050 4 II
      - -         - -



                                          ANALYSIS


I.     SUFFICIENCY OF THE EVIDENCE


       The juvenile court may order termination of a parent's rights as to his or her child if the

Department establishes the six elements in RCW 13. 4.
                                               a) (f) clear, cogent,
                                               180(
                                                  1 through
                                                  3 )(      by

and convincing evidence. The Department must also prove by a preponderance of the evidence

that termination of parental rights is in the child's best interests. RCW 13. 4.Clear,
                                                                          b).
                                                                          190(
                                                                             1)(
                                                                             3

cogent and convincing evidence exists when the ultimate fact at issue is shown to be "highly
probable."In re Welfare ofSego, 82 Wn. d 736, 739, 513 P. d.831 (1973) quoting Supove v.
                                     2                  2              (

Densmoor, 225 Or. 365, 372, 358 P. d 510 (1961)).
                                 2

       In termination proceedings, the juvenile court has the advantage of having the witnesses

before it, and therefore we accord deference to the juvenile court's decision. In re Welfare of

Aschauer, 93 Wn. d 689, 695, 611 P. d 1245 ( 1980). We limit our analysis to whether
               2                  2


substantial evidence supports the juvenile court's findings. Sego, 82 Wn.2d at 739. Substantial
evidence is evidence sufficient to persuade a fair -
                                                   minded rational person of the truth of the

declared premise. Bering v. SHARE, 106 Wn. d 212, 220, 721 P. d 918 (1986), dismissed,
                                         2                  2             cent.

479 U. . 1050 (1987).We . o not make credibility determinations or.weigh evidence. Sego, 82
     S                  d
Wn. d at 739 40.
  2          -


       MG argues that the Department failed to prove by clear, cogent and convincing evidence

that "continuation of the parent and child relationship clearly diminish[ed]RMG's]
                                                                             [   prospects

for early integration into a stable and permanent home," RCW 13. 4.
                                                       as    f)
                                                             180(
                                                                1 requires.
                                                                3 )( She
contends that because RMG's father's rights are still intact, termination of her parental rights is
                                                             s home.
not necessary because RMG may attain permanency in her father'                     Relying on the



                                                M
44044 0 I1 / 44050 4 II
      - -          - -




therapist's testimony, the Department responds that the mere existence of an ongoing legal
relationship with MG will thwart RMG's efforts towards permanence.

          The Department must prove that " ontinuation of the parent and child relationship clearly
                                         c

diminishes the child's prospects for early integration into a stable and permanent home."RCW

f).
180(
13. 4.Recently our supreme court held that no longer would proof of the element in
   1
   3 )(

l C)
RCW- 80( 2 serve as proof of )(
34. 3.
   1
   1                         the element in RCW 13. 4.In re Dependency
                                                f).
                                                180(
                                                   l)(
                                                   3

   S.,Wn. d ,
of K. .
    D   2                      294 P. d 695, 701 (2013).Accordingly, we must examine whether
                                    3

the Department set forth sufficient evidence to satisfy the requirements in RCW 13. 4.
                                                                                f)
                                                                                180(
                                                                                   1
                                                                                   3 )(

even though MG does not challenge the juvenile court's finding as to RCW 13. 4.
                                                                         e).
                                                                         180(
                                                                            l
                                                                            3 )(

          RCW 13. 4.is chiefly concerned " with the continued effect of the legal
              f)
              180(
                 1
                 3 )(

relationship between parent and child, as an obstacle to adoption; it is especially a concern where

children have potential adoption resources."In re Dependency ofA. ., Wn. App. 244, 250,
                                                                C 123

98 P. d 89 (2004).Less relevant is the quality of the parent child relationship. A. ., Wn.
    3                                                        -                    C 123

App. at 250. The Department need not prove the existence of a potential adoptive home for the

child in order to prove the element in RCW 13. 4.
                                           f):
                                           180(
                                              l the parent child relationship and
                                              3 )(         -

whether it impedes the child's prospects for integration"is more significant to application of this

factor than "what constitutes a stable and permanent home."In re Dependency of K. .137
                                                                               C.,
                                                                                S

Wn. d 918, 927, 976 P. d 113 (1999).
  2                  2

          Where the continuation of the parent child relationship does not interfere with the child's
                                               -

integration into a permanent home because termination of parental rights would have no impact
on   a   child's   living arrangement,   RCW   f)
                                               180(
                                               13. 4.
                                                  l)(
                                                  3  has not been proved. See In re the




2
    RCW 13. 4.
        e) proof t] there is little likelihood that conditions will be
        180(
           1 requires
           3 )(       "[ hat
remedied so that the child can be returned to the parent in the near future."
                                                   5
44044 0 II /44050 4 II
      - -         - -



Welfare of S.V. ., Wn. App. 762, 775, 880 P. d 80 (1994). In S.V. ., held that it was
              B 75                         2                    B we

error to terminate the father's parental rights where his child was living with the paternal

grandmother pursuant to a court-
                               established guardianship, and that arrangement would not

change if the father were to lose his parental rights. 75 Wn. App. at 775.. This court observed
that termination of a parent's rights despite the availability of a permanent home elsewhere,

deprive[s] child] of the benefits of a parentthe potential for nurturing support and the
         the [                                —
financial support that the law would otherwise obligate [the parent] to provide."S. .75 Wn.
                                                                                 B.,
                                                                                  V

App. at 775.

         Here, the Department became           aware   in March 2012 that GA       was   RMG's father. The


Department filed a dependency petition as to him, yet proceeded to the termination trial in MG's
case   before   a   dependency   was   established in GA's     case.   Thus, at the time of the termination

trial, the legal rights of GA      to RMG      were    still intact.   Like the child in S.V.B.,
                                                                                               who could

continue living with his grandmother despite the continuation of his father's parental rights, the

existence of the legal relationship between RMG and MG will not prevent RMG from achieving

permanency in GA's home. See S. V. ., Wn. App. at 775.
                                 B 75

         We are not persuaded by the Department's argument that the therapist's recommendation

against contact with MG is sufficient to satisfy the element in RCW 13. 4.First, a no-
                                                                    f).
                                                                    180(
                                                                       1
                                                                       3 )(
contact order remains in effect         barring   MG from     communicating with RMG.         Ex. 11 at 10.


Mechanisms other than terminating MG's parental rights exist to prevent her from having

contact with RMG. See RCW 26. 0.
                          e) plan (
                          040(
                             1 parenting
                             1 )(        may contain restraining order).

Second, there was no evidence to support the notion that continuation of the legal parent child
                                                                                          -
                caused RMG harm                MG         ordered to have   no   contact with her.   Cf. In re
relationship                            once        was




Dependency ofEsgate, 99 Wn.2d 210, 214 25,660 P. d 758 (1983)former RCW 13. 4.
                                       -       2              (         180(
                                                                           6
                                                                           3 )
                                                          6
44044 0 II /44050 4 II
      - -         - -



proved where "the State established that continuation of the parentchild relationship often
                                                                   /
created feelings of insecurity and instability in the child ").

        The juvenile court's finding as to RCW 13. 4. unsupported by the evidence
                                               f)
                                               180(
                                                  1 is
                                                  3 )(

because MG's parental rights to RMG do not diminish RMG's prospects for early integration

into a stable and permanent home so long as GA has parental rights as to her. Accordingly, we

reverse the termination order as to RMG. Because MG's sufficiency argument only relates to

RMG, leaving undisturbed the termination order as it pertains to JMG, we address MG's second

argument.

H.      SUBSTANTIVE DUE PROCESS


        MG contends that the termination statutes, RCW 13. 4.and RCW 13. 4.violate
                                                       180
                                                         3           190,
                                                                       3

her right to substantive due.process because their creation of an all or nothing definition of the

parent child relationship means they are not narrowly tailored. All three divisions of this court
       -

have already found the termination statutes are constitutional even though they do not permit the

juvenile court to consider less restrictive alternatives to termination. In re the Welfare ofM. .
                                                                                             H.,
                                                                                              R
145 Wn. App. 10, 30, 188 P. d 510 (2008),cert. denied, 129 S. Ct. 1682 ( 2009);In re
                          3

Dependency of T. ., Wn. App. 791, 798 99, 158 P. d 1251 (2007); re the Welfare of
              C. .
               B
               C 138                  -        3              In
C. ., Wn. App. 336, 345, 139 P. d 1119 (2006); re Dependency of I..128 Wn. App.
 B 134                        3              In                 S.,
                                                                 J

108, 120, 114 P. d 1215 (2005). As we held, t"he termination statutes are narrowly drawn to
               3

meet the State's compelling interest to prevent harm or risk of harm to children and the court

need not consider a dependency guardianship as an alternative to termination when no petition
has been filed." C. .,134 Wn.
                  B                       App.   at   345.   And so long as MG's parental rights are

recognized, JMG is not legally free to be adopted. The termination statutes are narrowly tailored
and   are   therefore   constitutional.   The redefinition of the parent child relationship as an
                                                                         -
                                                       VA
44044 0 II /44050 4 II
      - -         - -



unbundled set of components proposed by MG is a matter for the legislative process, not the

judicial process.

       We reverse the order terminating MG's parental rights as to RMG. We affirm the order

terminating MG's parental rights as to JMG.

       A majority .of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We   concur:




           rgen, .
