Opinion
67493-5-I
06-18-2012
IN RE DEPENDENCY OF J.M.W., v. JAVONNA WILLIAMS, Appellant. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,
UNPUBLISHED OPINION
Leach, C.J.
Javonna Williams appeals the termination of her parental rights to her son, J.M.W. She contends that Washington's parental termination statute, RCW 13.34.130, is unconstitutionally vague on its face because it provides trial courts with no guidelines for determining when a termination is in the "best interests of the child." Because Williams does not show how the statute is unconstitutional as applied to the facts of her case, her vagueness challenge fails. Alternatively, Williams claims that due process required that J.M.W. be appointed counsel at the termination hearing.
Because Williams did not raise this issue in the trial court and does not demonstrate actual prejudice, she may not raise it now. We affirm.
Because Williams's appeal concerns purely legal issues, we do not set forth the substantive facts of the dependency proceedings in this opinion.
J.M.W. was born on December 6, 2004, to Javonna Williams. In 2007, a court found J.M.W dependent by agreed order and removed him from his mother's care. In 2009, the Department of Social and Health Services (DSHS) filed a termination petition, which the trial court denied. In January 2012, DSHS filed a second termination petition. After a two-day trial, the court found that Williams was unfit to parent and that termination was in J.M.W.'s best interests. Without challenging any of the trial court's findings of facts, Williams appeals.
Analysis
Williams make two constitutional challenges to the trial court's termination decision. First, she challenges RCW 13.34.130 for facial unconstitutional vagueness. Second, she asserts a due process right to counsel on behalf of her son. We review the constitutional challenge to RCW 13.34.130 de novo. Because Williams did not raise the due process issue at the trial court, we initially determine whether she has demonstrated a manifest error affecting a constitutional right. As we explain,
In re Welfare of C.B., 134 Wn.App. 336, 342, 139 P.3d 1119 (2006) (citing In re Parentage of C.A.M.A., 154 Wn.2d 52, 57, 109 P.3d 405 (2005)).
RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Williams's vagueness challenge fails and she may not raise the due process claim because she fails to demonstrate prejudice.
We presume that a statute is constitutional. A party challenging that presumption bears the burden of proving beyond a reasonable doubt that the statute is unconstitutional. "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." A facial vagueness challenge contends that the statute's terms are "'so loose and obscure that they cannot be clearly applied in any context.'" 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. As a result, when a vagueness challenge to a statute does not involve First Amendment interests, we do not consider a facial challenge.
In re Interest of Skinner, 97 Wn.App. 108, 114, 982 P.2d 670 (1999).
In re Dependency of I.J.S., 128 Wn.App. 108, 115, 114 P.3d 1215 (2005).
City of Spokane v. Douglass, 115 Wn.2d 171, 181, 795 P.2d 693 (1990).
Douglass, 115 Wn.2d at 182 n.7 (quoting Basiardanes v. City of Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)).
Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); In re Welfare of H.S., 94 Wn.App. 511, 524-25, 973 P.2d 474 (1999); In re Dependency of C.B., 79 Wn.App. 686, 689, 904 P.2d 1171 (1995); Douglass, 115 Wn.2d at 182.
Douglass, 115 Wn.2d at 182-82.
In order to terminate the parent-child relationship, the court must find by clear, cogent, and convincing evidence the six factors listed in RCW 13.34.130. If the court makes these findings, it must also find that termination of the parent-child relationship is in the best interests of the child before the court may terminate the relationship.The statute does not define "best interests of the child, " nor does it provide any express standards for the court to use to analyze the child's best interests. Williams contends that without specific guidelines the statute allows for arbitrary enforcement and should be declared unconstitutional and void for vagueness. We disagree.
Williams presents no argument and no facts supporting an as-applied challenge to the statute. Further, our Supreme Court has said that the necessarily individualized factual determinations required in dependency proceedings make it impossible and undesirable to articulate a rigid list of facts for determining a child's best interests. As the court noted in In re Welfare of Aschauer,
Her analogy to vagueness challenges in death penalty cases is inapposite. Capital punishment cases are analyzed under the Eighth Amendment, rather than the due process clause of the Fifth and Fourteen Amendments. State v. E.A.J., 116 Wn.App. 777, 792, 67 P.3d 518 (2003).
In re Welfare of Aschauer, 93 Wn.2d 689, 697-98 n.5, 611 P.2d 1245 (1980) (citing In re Welfare of Becker, 87 Wn.2d 470, 477, 553 P.2d 1339 (1976).
Aschauer, 93 Wn.2d 689, 697-98 n.5.
[w]ith developing knowledge and understanding of the needs of children, the criteria for determining what is "proper" or in their best interests also change. . . . Were 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.
Thus, Williams's vagueness challenge fails.
Next, Williams contends that her son had a constitutional right to counsel. In In re Dependency of M.S.R., our Supreme Court held:
In re Dependency of M.S.R. 174 Wn.2d, 271 P.3d 234, 245 (2012).
[T]he due process right of children who are subjects of dependency or termination proceedings to counsel is not universal. The constitutional protections, RCW 13.34.100(6), and our court rules give trial judges the discretion to decide whether to appoint counsel to children who are subjects of dependency or termination proceedings.
Because Williams did not request counsel for J.M.W. below, we first address whether Williams may challenge the lack of counsel on appeal. RAP 2.5 permits a party to raise for the first time on appeal only a manifest error affecting a constitutional right. To demonstrate that an asserted error is manifest, the appellant must show actual prejudice. Actual prejudice means that the alleged error had practical and identifiable consequences in the trial of the case.
RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).
Williams does not demonstrate how J.M.W. was prejudiced. Williams does not identify any place in the record where counsel for J.M.W. might have supplemented the evidence, impeached a witness, or provided more effective advocacy for J.M.W. She also does not challenge the trial court's factual findings that J.M.W. had no parent capable of adequately caring for him, that he was adoptable, or that he had prospects for adoption. These findings all support the conclusion that termination of the parent-child relationship was in J.M.W.'s best interest. Williams does not claim that failure to appoint counsel had any practical and identifiable consequence in the fact-finding hearing. Consequently, any alleged prejudice is entirely speculative and not sufficient to meet Williams's burden. Because Williams fails to show prejudice, we decline to address her due process claim.
For purposes of this analysis, we assume but do not decide that this alleged error is of constitutional magnitude.
See generally State v. Norby, 122 Wn.2d 258, 264, 858 P.2d 210 (1993) ("The mere possibility of prejudice is not sufficient to meet the burden of showing actual prejudice.").
Conclusion
Because Williams has not shown that RCW 13.34.130 is unconstitutionally vague as applied to the particular facts of this case or that J.M.W was prejudiced by the lack of counsel, we affirm.