Opinion
No. 68277-6-I
02-04-2013
In the Matter of the Dependency of K.M.L., DOB: 09/11/10, A.R.L., DOB: 08/19/08, E.E.L., DOB: 05/17/07, Minor Children. BRITTAINY LABBERTON, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
(linked with No. 68070-6-I)
(consol. with Nos. 68278-4-I,
68279-2-I)
UNPUBLISHED OPINION
Dwyer, J. — Brittainy Labberton appeals from the trial court's order terminating her parental rights. She contends that, because the court-appointed special advocate (CASA) did not report to the court the views of her children regarding the termination proceeding, the subsequent termination of the parent-child relationship was improper. In the alternative, she contends that the termination statute is unconstitutionally vague on its face. Because neither contention has merit, we affirm.
I
E.E.L., the oldest daughter of Brittainy Labberton and Samuel Labberton, was born on May 17, 2007. A.R.L. was born the following year on August 19, 2008. In the weeks following A.R.L.'s birth, she failed to gain sufficient weight in her parents' care. A.R.L. was admitted to the hospital. She thereafter began to rapidly gain weight. In the hospital, A.R.L. demonstrated none of the "fussy eating or vomiting" that the Labbertons had reported as causing the lack of weight gain. When informed of A.R.L.'s weight gain, neither parent expressed happiness. Instead, Brittainy complained, "Oh my God, she's fat," and "I have a fat baby." Both parents later confirmed that they had not followed their doctor's orders to feed A.R.L. appropriately.
In order to avoid confusion, Brittainy Labberton and Samuel Labberton are referred to as Brittainy and Samuel, respectively.
In October 2008, the Labbertons entered into a voluntary placement agreement with the Department of Social and Health Services (DSHS), and A.R.L. was removed from their home. Shortly after A.R.L. was removed, Brittainy told a psychologist about intrusive thoughts of killing E.E.L., including a dream in which she slit E.E.L.'s abdomen open with a knife, and another in which she suffocated her with a plastic garbage bag. E.E.L. was thereafter also removed from the home. E.E.L.'s new foster parents discovered that E.E.L. was "ravenously hungry," eating so fast that she choked on her food. In March 2009, the Labbertons entered agreed orders of dependency as to both E.E.L. and A.R.L.
The Labbertons eventually pleaded guilty to criminal mistreatment of A.R.L. Brittainy and Samuel admitted to having "created an imminent and substantial risk of substantial bodily harm to a child by withholding sufficient food." As a condition of their criminal judgments and sentences, Brittainy and Samuel were prohibited from having unsupervised contact with their biological children for two years.
On September 11, 2010, one day after sentencing, Brittainy gave birth to a third child, K.M.L. Due to the conditions of the judgment and sentence, K.M.L. was immediately placed in a foster home. K.M.L. was thereafter found dependent pursuant to agreed orders of dependency in October 2010.
In the dependency orders, Brittainy and Samuel agreed to engage in remedial services in order to address their parenting deficiencies. Brittainy agreed to complete a psychological evaluation, to consult with a nutritionist regarding the proper feeding of her children, to engage in parenting coaching and individual mental health counseling, and to participate in joint counseling with her husband to address the couple's relationship issues. Samuel, who also agreed to complete a psychological evaluation and to engage in individual mental health counseling, was further ordered to engage in anger management classes and a domestic violence perpetrator's treatment program. Although the Labbertons engaged in some of the remedial services offered by the State, they made little progress in addressing their parenting deficiencies. Neither parent acknowledged responsibility for the criminal mistreatment of A.R.L. or for the behavior that caused their children to be placed in foster care.
On April 15, 2011, DSHS petitioned for the termination of the parent-child relationship between the Labbertons and their three children. A nine-day fact-finding trial was held in October and November of that year. A clinical psychologist, the Labbertons' social worker, a supervisor with the Department of Family and Child Services, a parenting coach, and a visit supervisor testified that the Labbertons were currently unfit parents, that the children would be unsafe if returned to the Labbertons' care, and that the parent-child relationship should be terminated. The CASA testified that termination was in the best interests of the children. No professional recommended against termination.
Following the trial, the court determined that Brittainy and Samuel each suffered from a "psychological incapacity or mental deficiency" rendering them incapable of providing proper care to their children. The trial court found that the Labbertons had failed to substantially improve their parenting deficiencies during the period of the dependency, and that there was little likelihood that these deficiencies would be remedied in the near future. In addition, the trial court determined that the continuation of the parent-child relationship "clearly diminishes the children's prospects for early integration into a stable and permanent home."
The trial court concluded that "[t]he State has proven by clear, cogent, and convincing evidence that these children do not have parents who are currently capable of parenting them," and explained that "[t]ermination of the parent-child relationship . . . is in the best interest of the children." Accordingly, the court entered an order terminating the parental rights of both Samuel and Brittainy on November 28, 2011.
Samuel also appeals from the trial court's order terminating his parental rights. Samuel's appeal, which raises the same issues as those decided herein, is addressed in our decision in the linked case, In re Dependency K.M.L., No. 68070-6-I, 68071-4-I, 68072-2-I (Wash. App. Feb. 4, 2013).
II
As a threshold matter, the CASA contends that Brittainy's filing of her notice of appeal was untimely and that, accordingly, Brittainy is not entitled to appellate review of the order terminating her parental rights. We disagree.
RAP 5.2(a) requires that a notice of appeal be filed within 30 days of entry of the judgment in the trial court. "The appellate court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal." RAP 18.8(b). The filing of a notice of appeal within 30 days of the entry of the judgment has been characterized by our Supreme Court as a jurisdictional step in the perfection of an appeal. Mackey v. Champlin, 68 Wn.2d 398, 399, 413 P.2d 340 (1966).
Here, the CASA asserts that Brittainy did not file a notice of appeal within the 30 days allotted by RAP 5.2(a). The CASA is correct that Brittainy's attorney filed a document entitled "notice of appeal"—accompanied by a motion to extend time—on February 17, 2012, after the expiration of the 30 day period in which to file such a notice. We note, however, that Brittainy also filed with the superior court a document entitled "specific direction to the court of appeals" on December 22, 2011—24 days after entry of the judgment. This document states:
I, respondent, Brittainy Labberton seek review by the Court of Appeals of the State of Washington, Division I, of the Findings of Fact, Conclusions of Law, & Order Terminating Parental Rights entered in the above captioned matters on November 28, 2011. I believe that there are decisions within the purview of the Superior Court that require scrutiny and seek review in good faith.
A notice of appeal must "(1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken." RAP 5.3(a). We are to disregard defects in the form of a notice of appeal "if the notice clearly reflects an intent by a party to seek review." RAP 5.3(f).
Here, the pleading filed by Brittainy on December 22, 2011, satisfies the requirements set forth by the rule. The pleading specifies the person seeking review, designates the decision to be reviewed, and names the Court of Appeals, Division I, as the appellate court to which review is taken. Although the pleading is not entitled "notice of appeal," it clearly reflects an intent by Brittainy to seek review. Thus, we are to disregard this defect in the form of the pleading. RAP 5.3(f). Because this pleading was filed within 30 days of the entry of the judgment, the filing of a notice of appeal was timely.
Accordingly, we turn to the merits of Brittainy's claims.
III
Brittainy first contends that the CASA was required to elicit—and subsequently report to the trial court—the views and preferences of her children regarding the termination proceeding. In the absence of such evidence, she asserts, the termination of her parental rights was improper. We disagree.
In a proceeding to terminate parental rights, the trial court must appoint a guardian ad litem or court-appointed special advocate (CASA) for the child. RCW 13.34.100(1). The CASA's role is to "represent and be an advocate for the best interests of the child." RCW 13.34.105(1)(f). In order to fulfill this role, the CASA must "investigate, collect relevant information about the child's situation, and report to the court factual information regarding the best interests of the child." RCW 13.34.105(1)(a). In addition, the statute requires that the CASA "meet with, interview, or observe the child, depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court." RCW 13.34.105(1)(b).
"A 'court-appointed special advocate' appointed by the court to be the guardian ad litem for the child, or to perform substantially the same duties and functions as a guardian ad litem, shall be deemed to be guardian ad litem for all purposes and uses of this chapter." RCW 13.34.030(10).
Here, although the CASA personally observed the Labberton children on many occasions, she did not interview them regarding their views of the termination proceedings and, consequently, did not report any such views to the trial court. Brittainy contends that the plain language of the statute requires that evidence of a child's views and positions be reported by the CASA in any termination proceeding. She further contends that the termination of her parental rights in the absence of such evidence constituted a violation of her right to due process.
We first note that neither Brittainy nor Samuel chose to raise this issue at trial. Counsel for both parents cross-examined the CASA at length without questioning her regarding the views or positions of the children. They did not object to the CASA's failure to describe the children's views. We will not ordinarily entertain a claim of error not raised before the trial court. RAP 2.5(a). Although an exception exists for a claim of manifest error affecting a constitutional right, RAP 2.5(a)(3), in order to benefit from this exception, a defendant who has not objected in the trial court must demonstrate both that the purported error is of constitutional magnitude and that the error is manifest. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).
Here, Brittainy's claim of error meets neither requirement of RAP 2.5(a)(3). Although Brittainy is correct that "[p]arental termination proceedings are accorded strict due process protections," In re Darrow, 32 Wn. App. 803, 806, 649 P.2d 858 (1982), she has cited to no decision indicating that the CASA's testimony ran afoul of these constitutional protections. As the United States Supreme Court has explained, "the nature of the process due in parental rights termination proceedings turns on a balancing of the 'three distinct factors' specified in Mathews v. Eldridge, 424 U.S. 319, 335[, 96 S. Ct. 893, 47 L. Ed. 2d 18] (1976)." Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The three factors are: "the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure." Santosky, 455 U.S. at 754. Applying these principles, we have explained that the due process protections afforded parents in a termination hearing include a strict burden of proof, the right to notice, and an opportunity to be heard and defend. In re Interest of Infant Child Skinner, 97 Wn. App. 108, 114, 982 P.2d 670 (1999); In re Welfare of S.E., 63 Wn. App. 244, 250, 820 P.2d 47 (1991); Darrow, 32 Wn. App. at 806.
Brittainy makes no effort to demonstrate that any of these protections were violated by the CASA's failure to testify regarding the views and positions of the Labberton children. Nor does Brittainy apply the Mathews balancing test in order to show why such testimony should be required. Because Brittainy has not demonstrated that the alleged error was of constitutional magnitude, for this reason alone, she is not entitled to appellate review of this issue.
Furthermore, Brittainy fails to demonstrate that the alleged error was manifest. An error is manifest only where the appellant can show "actual prejudice"—the burden is on the appellant to make a "plausible showing . . . that the asserted error had practical and identifiable consequences in the trial of the case." State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Here, the record is replete with evidence supporting termination of Brittainy's parental rights. Five professionals testified that termination was appropriate; no professional testified to the contrary. Because Brittainy makes no "plausible showing" that the failure of the CASA to testify regarding her children's views had any practical consequences at the trial, the alleged error was not manifest, and Brittainy's assertion of entitlement to appellate review fails for this reason as well.
Moreover, on the merits, we perceive no violation of the requirements set forth by the termination statute. Questions of statutory interpretation are reviewed de novo. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 443, 842 P.2d 956 (1993). The purpose of statutory interpretation is to give effect to legislative intent. Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997).
As noted above, RCW 13.34.105(1)(b) requires that the CASA "meet with, interview, or observe the child, depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court." Brittainy asserts that this provision required the CASA in this case to report to the trial court the preferences of her children regarding the termination proceeding. However, the plain language of the statute requires only that the CASA report those views and positions that are "expressed by the child." RCW 13.34.105(1)(b). Accordingly, the statute is not violated, as Brittainy appears to assert, in every instance in which the CASA does not testify regarding a child's preferences.
Here, there is no indication in the record that any of the Labberton children ever expressed their views regarding the termination proceeding to the CASA. Moreover, it is not the CASA's duty to elicit a child's views regardless of the circumstances. As the statute makes clear, whether to question the child regarding his or her views of a matter before the court depends upon "the child's age and developmental status." RCW 13.34.105(1)(b). The statute does not specify when a child is sufficiently mature to be interviewed about his or her preferences regarding the outcome of a termination proceeding. However, as our Supreme Court has noted in a similar context, young children are often unable to "form, articulate, or otherwise express a position on any relevant issue." In re Dependency of M.S.R., 174 Wn.2d 1, 21, 271 P.3d 234 (2012) (holding that "each child's circumstances will be different" and granting discretion to court in termination proceeding to decide whether children under 12 must have counsel appointed for them). Indeed, as the trial court recognized in M.S.R., questioning such young children about their preferences in a termination proceeding "could cause them extreme anxiety, and they might blame themselves for the rest of their lives that they caused the action that the Court had to take." 174 Wn.2d at 8. The CASA—whose role as advocate for a child's best interests involves frequent contact with the child—is uniquely well-situated to determine whether questioning the child about his or her preferences is appropriate.
Here, the CASA made a reasonable determination not to interview the Labberton children—ages 15 months, 3 years, and 4 years—regarding their termination preferences. As the CASA explained in a written report to the court filed prior to trial, "[t]he children are too young to be put in a position of being asked how they feel about their father's behavior, or how they feel about visits with their parents." Questioning the children regarding the termination of their parents' parental rights would likely have caused them extreme anxiety. As the trial court found, E.E.L. suffered from "issues with grief, loss, and attachment," while A.R.L. was "already starting to demonstrate the signs of an attachment disorder." Under these circumstances, as the advocate of the Labberton children's best interests, the CASA properly determined that the children were too young and immature to be questioned regarding their preferences in the termination proceeding.
Because neither parent chose to question the CASA regarding her decision not to interview the children about their preferences, this issue was left undeveloped at trial. Accordingly, the propriety of the CASA's determination is somewhat difficult to evaluate on this record. Nevertheless, given the ages of the Labberton children at the time of trial and the testimony of other professionals in the case, the CASA's decision appears presumptively reasonable. Brittainy makes no showing to defeat that presumption.
The trial court did not err by terminating Brittainy's parental rights without the CASA interviewing the children regarding their views on the proposed termination of their parents' rights and reporting those views to the court.
IV
Brittainy next asserts that Washington's parental termination statute 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." We disagree.
A statute is presumed to be constitutional. Skinner, 97 Wn. App. at 114. A party challenging that presumption bears the burden of proving beyond a reasonable doubt that the statute is unconstitutional. In re Dependency of I.J.S., 128 Wn. App. 108, 115, 114 P.3d 1215 (2005).
"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." City of Spokane v. Douglass, 115 Wn.2d 171, 181, 795 P.2d 693 (1990). 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. 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). Where a vagueness challenge to a statute does not involve First Amendment interests, a facial challenge to the statute will not be considered. Douglass, 115 Wn.2d at 182.
Pursuant to RCW 13.34.180 and RCW 13.34.190, the trial court must utilize a two-step process in determining whether to terminate parental rights. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). At the first step, the court must determine whether the six factors set forth by RCW 13.34.180 have been proved by clear, cogent, and convincing evidence. These factors focus on the parental fitness and the risk of harm to the child. In re Welfare of C.B., 134 Wn. App. 336, 345, 139 P.3d 1119 (2006). At the second step, which is reached only if all six of the factors are proved, A.B., 168 Wn.2d at 911, the trial court must determine whether termination of the parent-child relationship is in "the best interests of the child." RCW 13.34.190(1)(b). In order to terminate the relationship, the best interests of the child must be proved by a preponderance of the evidence. A.B., 168 Wn.2d at 911. Even where the parent has been found to be unfit under RCW 13.34.180, the relationship cannot be terminated unless the trial court also determines that such termination is in the child's best interests. In re Dependency of Ramquist, 52 Wn. App. 854, 860, 765 P.2d 30 (1988).
The six termination factors are:
(a) That the child has been found to be a dependent child;RCW 13.34.180(1).
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have 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.
The statute does not define "best interests of the child." As our Supreme Court has 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." In re Welfare of Aschauer, 93 Wn.2d 689, 697-98 n.5, 611 P.2d 1245 (1980). Moreover, because every parental termination proceeding presents its own peculiar facts and circumstances, rigid criteria for establishing the best interests of the child are necessarily absent. Aschauer, 93 Wn.2d at 697-98 n.5.
Brittainy contends that without specific guidelines, the statute allows for arbitrary enforcement and should be declared unconstitutional and void for vagueness. However, her challenge to the termination statute's "best interest" standard is a purely facial challenge one. She fails to make any arguments regarding the application of this standard to her own circumstances. Instead, she argues only that the statute "lacks the necessary guidance to protect against arbitrary enforcement and to provide for effective appellate review."
The Labbertons cite to several death penalty cases in support of their facial challenge to the termination statute. However, these cases are inapposite. Vagueness challenges in capital punishment cases are analyzed under the Eighth Amendment rather than under the due process clauses of the Fifth or Fourteen Amendments. State v. E.A.J., 116 Wn. App. 777, 792, 67 P.3d 518 (2003).
Such a claim is not cognizable under the law of our state. Brittainy's challenge to the termination statute does not involve First Amendment rights and, accordingly, we will not consider her facial vagueness challenge. Douglass, 115 Wn.2d at 182. Because Brittainy presents no argument and cites to no facts supporting an as-applied challenge to the statute, her claim of vagueness fails.
Affirmed.
_______________ We concur: _______________ _______________