author: Dwyer, J.

text:
    Sandra M. MERCERI, a single woman, Respondent, v. The BANK OF NEW YORK MELLON, a national banking association, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and Bank of New York Mellon f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19, Appellants.
    No. 76706-2-I
    Court of Appeals of Washington, Division 1.
    FILED: August 13, 2018
    Gregor Hensrude, Klinedinst PC, 701 5th Ave. Ste 1220, Seattle, WA, 98104-7007, Anthony Carmen Soldato, Klinedinst PC, 701 5th Ave. Ste 1220, Seattle, WA, 98104-7007, for Appellant.
    Susan Lynne Fullmer, Susan L. Fullmer, Attorney At Law, 150 Nickerson St. Ste 311, Seattle, WA, 98109-1634, Gordon Arthur Woodley, Woodley Law, Po Box 53043, Bellevue, WA, 98015-3043, for Respondent.
    PUBLISHED OPINION
   Dwyer, J.

¶ 1 Mere default will not alone accelerate the payments due on an installment promissory note. Some affirmative action is required by the holder of the note that makes it clear and unequivocal to the payor that the holder has, in fact, declared the entire debt due. In this case, in the absence of such an affirmative act, the superior court deemed the payments due on a note to have been accelerated. Because this acceleration took place more than six years before suit was filed, the superior court ruled, the applicable statutory limitation period barred the action. In accordance with these rulings, the superior court then quieted title to certain real property in the debtor. We hold that the payments due on the note were never accelerated and that the statutory limitation period never expired. Accordingly, we reverse.

I

¶ 2 Sandra Merceri owned a home in Bothell, Washington. In November 2006, she obtained a loan documented by a promissory note in the amount of $468,000. The adjustable rate note was payable in monthly installments, the first of which was due on January 1, 2007. The remaining installments were due on the first of each month thereafter, with the last payment due on December 1, 2046. A deed of trust secured the promissory note with a lien on Merceri's property.

¶ 3 Merceri defaulted on the loan in early 2010. Based on her failure to make monthly payments due under the note and deed of trust, a notice of default and intent to accelerate, dated February 16, 2010, was sent to Merceri. It stated, in pertinent part,

If the default is not cured on or before March 18, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property.

¶ 4 In the months thereafter, Merceri was sent letters presenting options to her, such as loan modification, repayment arrangements, short sale, and full reinstatement. On June 3, 2011, defendant Bank of New York Mellon (the Bank) was assigned the deed of trust as trustee for a securitized trust.

¶ 5 Between 2013 and 2016, Select Portfolio Servicing, Inc. (SPS), the servicer of the loan, sent Merceri mortgage statements showing the amount due on her loan as the sum of past due monthly payments plus charges and fees. A January 2, 2013 notice of default listed the amount due to cure the default as $76,175.02 (much less than the entire loan amount) and stated, "SPS may accelerate all payments owing and sums secured by the Security Instrument."

¶ 6 On June 1, 2016, the successor trustee issued a notice of trustee sale, which stated, "The sum owing on the obligation secured by the Deed of Trust is: The principal sum of $509,802.40, together with interest as provided in the Note from 2/1/2010 on, and such other costs and fees as are provided by statute."

¶ 7 Merceri initiated a suit against the Bank on October 14, 2016, seeking to quiet title to the property. She argued that the Bank's attempt to foreclose was barred because the six-year statutory limitation period had expired. This, she argued, was because the February 16, 2010 letter accelerated the payments due on the loan, making them all due upon her failure to cure her default by March 18, 2010.

¶ 8 Both parties filed motions for summary judgment. The trial court granted Merceri's motion for summary judgment, and entered a declaratory judgment quieting title and reconveying the deed of trust. The Bank appeals.

II

¶ 9 The Bank contends that the trial court erred by granting Merceri's motion for summary judgment and entering the judgment quieting title. This is so, the Bank asserts, because the applicable statutory limitation period regarding the Bank's ability to enforce payment of the loan obligation had never expired. We agree.

A

¶ 10 We review an order granting summary judgment de novo, performing the same inquiry as the trial court. Nichols v. Peterson N W ., Inc., 197 Wash. App. 491, 498, 389 P.3d 617 (2016). In doing so, we draw "all inferences in favor of the nonmoving party." U.S. Oil & Ref. Co. v. Lee & Eastes Tank Lines, Inc., 104 Wash. App. 823, 830, 16 P.3d 1278 (2001). "Summary judgment is proper if the record shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." U.S. Oil & Refining Co., 104 Wash. App. at 830, 16 P.3d 1278.

B

¶ 11 An action upon a contract or agreement in writing must be commenced within six years. RCW 4.16.040. "As an agreement in writing, [a] deed of trust foreclosure remedy is subject to a six-year statute of limitations." Edmundson v. Bank of Am., NA, 194 Wash. App. 920, 927, 378 P.3d 272 (2016).

¶ 12 Washington law distinguishes between demand promissory notes and installment promissory notes. Edmundson, 194 Wash. App. at 928-32, 378 P.3d 272. " 'A demand [promissory] note is payable immediately on the date of its execution.' " Edmundson, 194 Wash. App. at 929, 378 P.3d 272 (internal quotation marks omitted) (quoting GMAC v. Everett Chevrolet, Inc., 179 Wash. App. 126, 135, 317 P.3d 1074 (2014) ). As such, the statutory limitation period begins to run on a demand note when it is executed. Walcker v. Benson & McLaughlin, PS, 79 Wash. App. 739, 741-42, 904 P.2d 1176 (1995). An installment promissory note, on the other hand, is payable in installments and matures on a future date. See Edmundson, 194 Wash. App. at 929, 378 P.3d 272 ; see also Herzog v. Herzog, 23 Wash.2d 382, 388, 161 P.2d 142 (1945). " '[W]hen recovery is sought on an obligation payable by installments, the statute of limitations runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it.' " Edmundson, 194 Wash. App. at 930, 378 P.3d 272 (quoting Herzog, 23 Wash.2d at 388, 161 P.2d 142 ).

¶ 13 Merceri's promissory note was an installment note payable in monthly installments over a period of 40 years. Its maturity date is in 2046. Thus, the statutory limitation period commenced for each installment from the time it became due and was not paid. But the final six-year period to take an action related to the debt does not begin to run until it fully matures in 2046. Accordingly, unless the note ceased to be an installment note, the Bank's 2016 notice of trustee sale is timely because the statutory limitation period applicable to the entire loan obligation has not yet started to run and the action was brought within six years of missed monthly installment payments.

C

¶ 14 The Bank argues that the trial court erred in ruling that the payment obligation on Merceri's loan was accelerated by the 2010 notice, causing the six-year statutory limitation period to commence. We agree.

¶ 15 Our Supreme Court has held "that even if the provision in an installment note provides for the automatic acceleration of the due date upon default, mere default alone will not accelerate the note." A.A.C. Corp. v. Reed, 73 Wash.2d 612, 615, 440 P.2d 465 (1968). " 'Some affirmative action is required, some action by which the holder of the note makes known to the payors that he intends to declare the whole debt due. ' " Glassmaker v. Ricard, 23 Wash. App. 35, 37-38, 593 P.2d 179 (1979) (quoting Weinberg v. Naher, 51 Wash. 591, 594, 99 P. 736 (1909) ); 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195 Wash. App. 423, 436, 382 P.3d 1 (2016), review denied, 187 Wash.2d 1003, 386 P.3d 1084 (2017).

[A] provision hastening the date of maturity of the whole debt is for the benefit of the payee, and if he does not manifest any intention to claim it, before tender is actually made, there is in law no default such as will cause the maturity of the debt before the regular time provided in the agreement.

Coman v. Peters, 52 Wash. 574, 578, 100 P. 1002 (1909). "[A]cceleration must be made in a clear and unequivocal manner which effectively apprises the maker that the holder has exercised his right to accelerate the payment date." Glassmaker, 23 Wash. App. at 38, 593 P.2d 179.

¶ 16 Here, the Bank sent Merceri a notice warning her that the entire debt would be accelerated if she failed to cure her default. The notice read, in pertinent part,

If the default is not cured on or before March 18, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property.

¶ 17 Thereafter, the Bank did not take an affirmative action in a clear and unequivocal manner indicating that the payments on the loan had been accelerated. The Bank never declared that the entire debt was due. Nor did it refuse to accept installment payments. See, e.g., Rodgers v. Rainier Nat'l Bank, 111 Wash.2d 232, 757 P.2d 976 (1988) (trustee accelerated payments due on the loan by refusing partial payment and demanding principal and interest in full); Jacobson v. McClanahan, 43 Wash.2d 751, 264 P.2d 253 (1953) (lender accelerated payments due on the loan by giving notice of default and refusing to accept subsequent installment payments). In addition, mortgage statements sent to Merceri after the February 2010 notice show the amount due as merely the sum of unpaid past due installments, not the full principal. The statements do not show an accelerated amount due.

¶ 18 Merceri makes several arguments in support of acceleration. She argues that her deed of trust is evidence of acceleration. It states that "failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured." Merceri contends that the February 2010 notice went a step further by stating that her loan "will be accelerated." This argument is not persuasive. A loan is accelerated by clear and unequivocal action by the lender. Regardless of how the February 2010 notice compares to the deed of trust, it still does not amount to notice of acceleration. Merceri also argues that mortgage statements show acceleration because, after default, the Bank ceased to capitalize unpaid interest and charge late fees. But again, this falls far short of a clear and unequivocal statement of acceleration.

¶ 19 At oral argument, Merceri again claimed that language in the deed of trust compelled the conclusion that the debt was accelerated in 2010. But the language cited in paragraph 22 of the document upon which this contention relies, includes the following: "If the default is not cured on or before the date specified in the notice, Lender at its option, may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and/or any other remedies permitted by Applicable Law." (Emphasis added.) There is no evidence in the record that this lender exercised its option.

¶ 20 Also at oral argument, Merceri pointed to the 2016 notice of trustee sale, which states that the principal sum owed was "$509,802.40," as evidence of acceleration. But, even if this was so, a 2016 acceleration would not serve to bar a claim asserted in a 2016 lawsuit.

¶ 21 Finally, in both a supplemental statement of authority and at oral argument, Merceri pointed to the decision in Washington Federal, National Association v. Azure Chelan LLC, 195 Wash. App. 644, 382 P.3d 20 (2016), as being helpful to her claim. It is not.

¶ 22 In Washington Federal, the court described the key document as follows:

Further, the April 2007 Notice of Default lists the various defaults and states the "Total Amount Due" as $6,116,545.07. This number includes the "Accelerated balance due under Promissory Note" of $5,656,151.29.

195 Wash. App. at 663, 382 P.3d 20 (citation to record omitted). No such action of the lender took place herein. Here, to the contrary, the lender offered the debtor numerous alternatives to paying the entire amount of the loan and repeatedly informed the lender that the amount due was the sum of missed monthly payments-not the entire principal amount. Merceri never received a notice of default setting forth an "Accelerated balance due." In these important respects, the WashingtonFederal decision bears little resemblance to this dispute and does not militate in favor of Merceri's arguments on appeal.

¶ 23 The trial court erred by accepting Merceri's contention that the payments on the debt were accelerated in 2010.

III

¶ 24 The trial court erred by ruling that the debt had been accelerated in 2010, that the statutory limitation period had expired, and that quieting title in Merceri was warranted. These rulings, and the judgment entered thereon, are reversed.

¶ 25 On remand, the trial court should grant the Bank's motion for summary judgment on the statute of limitation issue. It should then conduct proceedings consistent with the entry of that order.

¶ 26 Reversed and remanded.

We concur:

Andrus, J.

Mann, A.C.J.

      Merceri argues briefly that the nonjudicial foreclosure attempt was not an "action" and that only a judicial foreclosure can toll the statute of limitations under RCW 4.16.170. This argument is unavailing. See, e.g., Edmundson, 194 Wash. App. 920, 378 P.3d 272. We will not further discuss this issue.

      The Bank answers that this figure proves no such thing and that, rather, the sum was included as required by law because it delineates the Bank's maximum interest in the proceeds of any forced sale.


source: Caselaw Access Project

author: Schindler, J.

license: Public Domain

text:
    The STATE of Washington, Respondent, v. Mauricio GARCIA GOMEZ, Appellant.
    No. 75673-7-I
    Court of Appeals of Washington, Division 1.
    FILED: February 5, 2019
    Kevin Andrew March, Nielsen, Broman & Koch, PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
    Prosecuting Attorney King County, King County Pros./App. Unit Supervisor, Donna Lynn Wise, King County Prosecutor's Office, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Schindler, J.

¶ 1 Assault in the second degree is an alternative means crime. The State charged Mauricio Garcia Gomez with two counts of assault in the second degree committed by three alternative means: intentional assault inflicting substantial bodily harm, or assault with a deadly weapon, or assault by strangulation. Consistent with well established case law, the jury instructions state the jury must agree unanimously on the crime of assault in the second degree but need not be unanimous as to which of the alternative means has been proved beyond a reasonable doubt. Garcia Gomez appeals the jury convictions on the two counts of assault in the second degree. Garcia Gomez contends he was deprived of his constitutional right to a unanimous jury verdict because sufficient evidence does not support each of the charged alternative means to commit assault in the second degree. In the alternative, Garcia Gomez argues that if the jury was not unanimous as to the alternative means, the convictions violate his right to due process. In a supplemental assignment of error, Garcia Gomez claims the statutory alternative means to commit assault in the second degree are alternative crimes, not alternative means. Because overwhelming and unrebutted evidence supports each of the charged means of committing assault in the second degree and the assault statute lists alternative means of proving a single crime, not alternative crimes, we affirm the jury convictions.

FACTS

¶ 2 After interviewing 13-year-old I.G. at school on October 28, 2015, Kent Police Detective Melanie Robinson went to the apartment complex where the family lived to meet with his mother C.G. C.G. had black bruises under her eyes, an "obviously disfigured" nose, and a "cauliflowered" ear. C.G. showed Detective Robinson a "long scar" on her arm and "large bruises" on her legs. Detective Robinson took photographs of the injuries to C.G. The police arrested Mauricio Garcia Gomez that day. After his arrest, C.G. went to the Valley Medical Center emergency room.

¶ 3 The State charged Garcia Gomez with two counts of assault in the second degree. The information alleged as to each count that Garcia Gomez committed domestic violence assault in the second degree "between September 1, 2015 and October 30, 2015" by three alternative means: intentionally assaulting C.G. "with a deadly weapon, to-wit: a knife," or intentionally assaulting C.G. "thereby recklessly inflicting substantial bodily harm," or assaulting C.G. "by strangulation." The information alleged the aggravating factors of domestic violence; that the offense was a part of an ongoing pattern of psychological, physical, or sexual abuse of the victim; multiple incidents over a prolonged period of time; and that Garcia Gomez committed domestic violence "within sight or sound of the ... minor children" in violation of RCW 9.94A.535(3)(h)(i) and (ii).

¶ 4 Garcia Gomez pleaded not guilty. The trial court agreed to bifurcate the trial on the two counts of assault in the second degree and the aggravating factors.

¶ 5 A number of witnesses testified during the trial on the two counts of assault in the second degree, including C.G., I.G., the apartment manager, and Dr. Russell Spies. The court admitted into evidence the photographs Detective Robinson took of C.G. on October 28 and the whip Garcia Gomez used to hit C.G. on her legs. The defense did not call any witnesses.

¶ 6 C.G. testified that in the fall of 2015, she and Garcia Gomez lived in a two-bedroom apartment in Kent with their five children, ranging from age 2 to 13. C.G. testified the injuries inflicted by Garcia Gomez occurred at "different times" in September and October 2015.

¶ 7 C.G. testified that Garcia Gomez hit her "mainly at home. ... [P]retty much whenever he felt like it." C.G. said that approximately two weeks before the police arrested Garcia Gomez, he walked into the kitchen and punched her in the nose. C.G. testified Garcia Gomez punched her so hard that her vision became "blurry" and her nose was bleeding heavily. C.G. thought her nose was broken. Her nose had a "[d]ifferent structure" after Garcia Gomez punched her and the swelling made it difficult to breathe.

¶ 8 C.G. testified that in September or October 2015, Garcia Gomez punched her in her right ear. Because he would repeatedly slap and punch her on the right side of her face and ear in the days that followed, the swelling never healed. C.G. testified the swelling in her ear hurt, "[e]ven when he wasn't hitting it."

¶ 9 C.G. testified that during the same time period, Garcia Gomez made a whip with electrical cords. Although C.G. was wearing jeans, the injuries he inflicted using the whip "burned" for days and left marks on her legs.

¶ 10 C.G. testified that another time in September or October, Garcia Gomez grabbed her "around the neck" with both hands while she was in bed. Garcia Gomez stood over her and tightened his grip so hard she was unable to breathe.

¶ 11 On another occasion in September or October while C.G. was driving, Garcia Gomez suddenly sliced her right arm with the blade of a pocketknife. The cut "burned" and bled. C.G. did not know why Garcia Gomez cut her. "He just said it just felt right to do it." C.G. showed the jury the scar on her arm.

¶ 12 C.G. testified that she did not report the abuse or seek treatment for her injuries until after the police arrested Garcia Gomez. C.G. said she was "scared" the doctors would "ask[ ] questions" about "how ... those injuries happened."

¶ 13 Thirteen-year-old I.G. testified that in September and October 2015, his father physically abused his mother usually "twice every day," typically "in the bedroom and sometimes in the living room" of the apartment. I.G. testified that a couple of times, he heard his mother "screaming ... painful sounds." I.G. testified that his mother had bruises on her "face," "legs," and "feet" and that her "nose got cracked." I.G. testified he did not "see those bruises before the fighting ..., it happened after the fighting." I.G. testified that when he heard "fighting ... in their bedroom[,] ... [m]y brothers and sisters" were also in the apartment.

¶ 14 I.G. saw Garcia Gomez use "his hands on my mom." I.G. described a time in September or October when he saw his father punch his mother "on the face" while she was driving. I.G. testified that his father would climb on top of his mother on the sofa in the living room and punch her. I.G. testified he "couldn't" call the police because he was "scared ... [t]o make things worse."

¶ 15 The manager of the apartment complex testified that during September and October 2015, she noticed C.G.'s "significant weight loss." On more than one occasion and at "different times," the manager saw that C.G. had "black eyes" and bruises on her face and arms.

¶ 16 Dr. Spies examined C.G. on October 28. The severe pain in her neck and left shoulder radiated down her arm and caused numbness in her hand for more than a week. Dr. Spies testified C.G. suffered nerve damage between her neck and hand, likely from a "disc injury." Dr. Spies testified blunt force trauma to the right side of the face can "impact the nerves on the left neck[.] ... Like whiplash."

¶ 17 Dr. Spies testified that the area around C.G.'s right eye was "discolored" and swollen. Breathing through her nose was difficult and painful. Dr. Spies testified her nose was visibly misshapen from either a deviated septum or a fracture, "or both," and surgery was necessary to repair her nasal passages. Dr. Spies said C.G. suffered from a "markedly" "large subchondral hematoma" in her right ear, a deformity known as "cauliflower ear." Because the injury to her ear was not treated right away, the deformity was likely permanent. Dr. Spies testified the black eye, broken nose, and deformed ear injuries were consistent with blunt force trauma.

¶ 18 The court instructed the jury the State had the burden of proving each of the elements of the crime of assault in the second degree beyond a reasonable doubt. Jury instruction 7 states, "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." The court instructed the jury that "[a] person commits the crime of assault in the second degree when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm or assaults another with a deadly weapon or assaults another by strangulation."

¶ 19 Because C.G. testified to three different acts of intentional assault (punching C.G. in the nose, repeatedly hitting her in the ear, and using the whip to hit her), the court proposed giving a Petrich unanimity instruction. The defense agreed the court should give the instruction. Jury instruction 16 states:

The State alleges that the defendant committed acts of assault in the second degree on multiple occasions. To convict the defendant on any count of assault in the second degree, one particular act of assault in the second degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of assault in the second degree.

¶ 20 The "[t]o convict" jury instruction states the jury must unanimously agree that Garcia Gomez committed the crime of assault in the second degree but need not unanimously agree on the alternative means. The to-convict jury instruction on count 1 states:

To convict the defendant of the crime of assault in the second degree, as charged in Count 1, separate and distinct from count 2, each of the following two elements of the crime must be proved beyond a reasonable doubt:
1) That on or about September 1, 2015 through October 30, 2015, the defendant:
a) intentionally assaulted [C.G.] and thereby recklessly inflicted substantial bodily harm; or
b) assaulted [C.G.] with a deadly weapon; or
c) assaulted [C.G.] by strangulation; and
2) That this act occurred in the State of Washington.
If you find from the evidence that element (2) and either alternative element (1)(a) or (1)(b) or (1)(c) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (1)(a) or (1)(b) or (1)(c) has been proved beyond a reasonable doubt, as long as each juror finds that either (1)(a) or (1)(b) or (1)(c) has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to either element (1) or (2), then it will be your duty to return a verdict of not guilty as to Count 1.[ ]

The to-convict instruction on count 2 is the same except for the first paragraph that states, "To convict the defendant of the crime of assault in the second degree, as charged in Count 2, separate and distinct from count 1, each of the following two elements of the crime must be proved beyond a reasonable doubt"; and the last sentence that states, "[T]hen it will be your duty to return a verdict of not guilty as to Count 2."

¶ 21 The jury found Garcia Gomez was guilty of the two counts of assault in the second degree. After the jury returned the verdicts, the State presented evidence on the aggravating factors.

¶ 22 C.G. testified about verbal and emotional abuse that escalated to physical abuse beginning in 2011. C.G. said Garcia Gomez forced her to have sex. If C.G. said "no," Garcia Gomez would "get angry" and yell at her or push her. C.G. testified that in 2011, the police arrested Garcia Gomez for domestic violence assault against her. C.G. said the physical abuse began "really increasing" in mid-2015. C.G. testified Garcia Gomez physically assaulted her in 2015 "more than 100" times.

¶ 23 C.G. said the children were often in the apartment or the car when Garcia Gomez attacked her. C.G. testified that when Garcia Gomez used the whip to hit her, the children "were all sitting in the living room" near her and screamed at Garcia Gomez "to not do it."

¶ 24 By special verdict, the jury found Garcia Gomez and C.G. were household members, the two counts of assault in the second degree were part of an ongoing pattern of abuse, and Garcia Gomez committed the crimes when the children were present.

¶ 25 At sentencing, the court described the domestic violence assaults against C.G. as "horrific."

Mr. Garcia-Gomez, this - this Court, unfortunately, sees a lot of cases involving allegations of domestic violence and abuse. Your case was one of the most horrific that I've seen in almost 12 years on the bench. You treated your wife, the mother of your children, in a way that our society does not allow someone to treat their dog, and you did it in front of your children. And even to - just now you don't seem to have any comprehension of why what you did was so horrific and what effect it had on your family, the people who loved you and trusted you to protect them, to help take care of them, to comfort them when they were hurt. And instead you were the one inflicting the hurt.
Every time you lost your temper, you lashed out physically. You broke bones. You made a whip. ...
....
... [I]t's clear, Ms. Garcia is still terrified of you, and I suspect your children are frightened as well. They love you, but they're scared of you too, and that's a terrible place for a child to be.

¶ 26 The court imposed an exceptional sentence of 96 months on each count to run concurrently. The court entered findings of fact and conclusions of law on the exceptional sentence. The court incorporated by reference its oral ruling.

¶ 27 The findings state, "A unanimous jury found the defendant guilty of two counts of Assault in the Second Degree - Domestic Violence" and "the same jury unanimously found" the State proved the aggravating factors.

The unrebutted testimony by [C.G.] was that the defendant had been physically and sexually abusive toward her in an escalating pattern since at least 2011-2015, a period of four or five years. She additionally testified that the physical and sexual abuse got much worse in the summer of 2015.

¶ 28 The conclusions of law state the record "contains substantial evidence to support the imposition of an exceptional sentence under each of the aggravating factors found by the jury." But "[e]ither factor, standing alone, justifies an exceptional sentence above the standard range."

ANALYSIS

Jury Unanimity

¶ 29 Garcia Gomez seeks reversal of the convictions of assault in the second degree. Garcia Gomez contends he was deprived of his constitutional right to a unanimous jury verdict because insufficient evidence supports each of the charged means of committing assault in the second degree. Under article I, section 21 of the Washington Constitution, a criminal defendant has the right to a unanimous jury. State v. Armstrong, 188 Wash.2d 333, 340, 394 P.3d 373 (2017) ; State v. Owens, 180 Wash.2d 90, 95, 323 P.3d 1030 (2014).

¶ 30 "In enacting criminal statutes, the legislature may articulate a set of prohibited behaviors as (1) a list of distinct offenses or (2) a single offense with one or more alternative means." State v. Woodlyn, 188 Wash.2d 157, 163, 392 P.3d 1062 (2017).

¶ 31 Assault in the second degree is an alternative means crime. "The second degree assault statute, RCW 9A.36.021, articulates a single criminal offense" with "seven separate subsections defining how the offense may be committed." State v. Fuller, 185 Wash.2d 30, 34, 367 P.3d 1057 (2016) ; see also State v. Smith, 159 Wash.2d 778, 784, 154 P.3d 873 (2007).

¶ 32 RCW 9A.36.021(1) provides, in pertinent part:

A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
(b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or
(c) Assaults another with a deadly weapon; or
(d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
(e) With intent to commit a felony, assaults another; or
(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or
(g) Assaults another by strangulation or suffocation.[ ]

¶ 33 The State charged Garcia Gomez with two counts of assault in the second degree committed by three alternative means in violation of RCW 9A.36.021(1)(a), (c), and (g) : intentional assault recklessly inflicting substantial bodily harm, or assault with a deadly weapon, or strangulation.

¶ 34 The Washington Supreme Court precedent "addressing alternative means crimes requires unanimity as to means only when a general verdict raises due process concerns, i.e., when one or more alternatives presented to the jury are not supported by sufficient evidence." Woodlyn, 188 Wash.2d at 162, 392 P.3d 1062.

¶ 35 In Woodlyn, the court rejected the argument that the " 'constitutional right to jury unanimity applies to alternative means of committing the crime.' " Woodlyn, 188 Wash.2d at 163, 392 P.3d 1062. The court held:

We have never recognized a categorical right to express unanimity (i.e., unanimity as to means) in alternative means convictions. See [ State v. ]Arndt, 87 Wn.2d [374,] 377-78[, 553 P.2d 1328 (1976) ] ; [State v. ]Franco, 96 Wn.2d [816,] 823[, 639 P.2d 1320 (1982), abrogated on other grounds by State v. Sandholm, 184 Wn.2d 726, 736, 364 P.3d 87 (2015) ]; [State v. ]Whitney, 108 Wn.2d [506,] 511[, 739 P.2d 1150 (1987) ]. Rather, there are particular situations when express unanimity is required, specifically when at least one means lacks sufficient evidentiary support. See, e.g., Owens, 180 Wn.2d at 95 [323 P.3d 1030]. Washington cases have adopted an analysis that turns on the sufficiency of evidence as a due process concern: if the jury is instructed on one or more alternative means that are not supported by sufficient evidence, a "particularized expression" of jury unanimity as to the supported means is required. [ Owens, 180 Wn.2d at 95, 323 P.3d 1030.] The purpose of this requirement is to ensure that when a verdict might be based on more than one alternative, the verdict is adequately supported.

Woodlyn, 188 Wash.2d at 164, 392 P.3d 1062.

¶ 36 Accordingly, if sufficient evidence supports each alternative means, "Washington defendants do not enjoy a recognized right to express unanimity."

Woodlyn, 188 Wash.2d at 164, 392 P.3d 1062 ; Armstrong, 188 Wash.2d at 347, 394 P.3d 373 ("We have held for more than 75 years that jury unanimity as to means is not required in alternative means cases where substantial evidence supports both alternatives.").

¶ 37 Garcia Gomez contends sufficient evidence does not support the convictions because the jury instructions state the jury must agree on a particular act of assault but do not require the jury to unanimously agree on the charged means of committing the crime of assault in the second degree. As an example, Garcia Gomez argues that if the jury agreed he assaulted C.G. intentionally by either punching her in the nose, repeatedly hitting her ear, or whipping her with electrical cords, insufficient evidence supports the alternative means of committing assault with a deadly weapon or by strangulation. The premise of his argument is contrary to well established Supreme Court precedent.

¶ 38 "In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged." State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 (1988). But if "substantial evidence supports each alternative means," jury unanimity is not required "as to the means by which the crime was committed." Kitchen, 110 Wash.2d at 410, 756 P.2d 105 ; Armstrong, 188 Wash.2d at 339, 394 P.3d 373 (express jury unanimity is not required "so long as sufficient evidence supports each charged means"). Evidence is sufficient if after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Owens, 180 Wash.2d at 99, 323 P.3d 1030.

¶ 39 In Woodlyn and Armstrong, the Washington Supreme Court expressly rejected the argument that jury unanimity was required as to the means of committing the crime. Woodlyn, 188 Wash.2d at 163, 392 P.3d 1062 ; Armstrong, 188 Wash.2d at 343, 394 P.3d 373 (rejecting claim that lack of express unanimity is permissible only where the record allows the court to "infer" unanimity).

¶ 40 In contrast to an alternative means crime, in a multiple acts case, several acts are alleged, any one of which could constitute the crime charged. Kitchen, 110 Wash.2d at 411, 756 P.2d 105. Because "the jury must be unanimous as to which act or incident constitutes the crime" in a multiple acts case, the court must give a Petrich unanimity jury instruction. Kitchen, 110 Wash.2d at 411, 756 P.2d 105.

¶ 41 Here, the court decided and the defense agreed to give a Petrich instruction. The jury unanimously agreed Garcia Gomez was guilty of two counts of assault in the second degree. The overwhelming and unrebutted evidence supports the jury finding guilt beyond a reasonable doubt not only as to each act of assault but also as to each of the charged alternative means for the two counts of committing assault: intentional assault recklessly inflicting substantial bodily harm, or assault with a deadly weapon, or strangulation.

¶ 42 In the alternative, Garcia Gomez contends that if the jury was not unanimous as to the means, the convictions violate due process. Garcia Gomez claims that because the alternative means of assault by reckless infliction of substantial bodily harm, assault with a deadly weapon, and assault by strangulation are factually distinct, the jury had to be unanimous as to the particular means.

¶ 43 Garcia Gomez relies on the language in State v. Ortega-Martinez, 124 Wash.2d 702, 707, 881 P.2d 231 (1994), that states, "In certain situations, the right to a unanimous jury trial also includes the right to express jury unanimity on the means by which the defendant is found to have committed the crime." In Armstrong, the Washington Supreme Court rejected the language Garcia Gomez relies on as dicta that is both "unnecessary to the holding in Ortega-Martinez and unsupported by the cases it cited." Armstrong, 188 Wash.2d at 342, 394 P.3d 373.

¶ 44 Garcia Gomez cites Arndt and State v. Crane, 116 Wash.2d 315, 804 P.2d 10 (1991). Neither Arndt nor Crane supports his argument that the charged alternative means of committing assault in the second degree are "repugnant to each other." Arndt, 87 Wash.2d at 383, 553 P.2d 1328.

¶ 45 In Arndt, the court describes the analytical framework to determine whether a statute creates separate crimes or identifies a single crime with more than one means of committing the crime. The court must determine legislative intent by considering " '[1] the title of the act; [2] whether there is a readily perceivable connection between the various acts set forth; [3] whether the acts are consistent with and not repugnant to each other; [4] and whether the acts may inhere in the same transaction.' " Arndt, 87 Wash.2d at 379, 553 P.2d 1328 (quoting State v. Kosanke, 23 Wash.2d 211, 213, 160 P.2d 541 (1945) ). The court held that where "there is substantial evidence presented to support each of the alternative means, and the alternative means are not repugnant to one another, unanimity of the jury as to the mode of commission is not required." Arndt, 87 Wash.2d at 376, 553 P.2d 1328.

¶ 46 Arndt supports the conclusion that RCW 9A.36.021(1) sets forth alternative means of committing a single crime, and it is therefore "unnecessary to a guilty verdict that there be more than unanimity concerning guilt as to the single crime charged." Arndt, 87 Wash.2d at 377, 553 P.2d 1328. Further, the alternative means of committing assault in the second degree are not repugnant to each other. Proof of assault in the second degree under one subsection does not disprove assault in the second degree under another subsection. Arndt, 87 Wash.2d at 383, 553 P.2d 1328.

¶ 47 In Crane, the Washington Supreme Court draws the distinction between an alternative means crime where "a single offense may be committed in more than one way" and the jury must be unanimous "as to guilt for the single crime charged," and a multiple acts case where several acts are alleged, "any one of which could constitute the crime charged." Crane, 116 Wash.2d at 325, 804 P.2d 10. The court held an alternative means crime "usually involve[s] a charge under a statute which contains several alternative ways of committing one crime, and the defendant has been charged with conduct which may fulfill more than one alternative." Crane, 116 Wash.2d at 326, 804 P.2d 10.

¶ 48 In Crane, the State charged the defendant with one count of murder in the second degree and two counts of assault in the second degree. Crane, 116 Wash.2d at 321, 804 P.2d 10. The evidence showed "the fatal assault could only have occurred during a 2-hour span." Crane, 116 Wash.2d at 330, 804 P.2d 10. On appeal, the defendant argued the trial court violated his constitutional right to unanimity by refusing to instruct the jury on the need to agree unanimously "to at least one particular assault" that caused the death of the child. Crane, 116 Wash.2d at 324, 804 P.2d 10. Because the evidence showed the "continuous conduct" exception to the Petrich rule applied, the court held a "unanimous jury verdict would not be required as to each incident of assault during this short period of time; instead, the jury would only need to be unanimous in its determination that the conduct occurred." Crane, 116 Wash.2d at 330, 804 P.2d 10 (citing Petrich, 101 Wash.2d at 571, 683 P.2d 173 ). " Petrich requires an election or unanimity instruction in cases where evidence supports several criminal acts which would support conviction of a criminal offense." Crane, 116 Wash.2d at 330, 804 P.2d 10.

¶ 49 In supplemental briefing, Garcia Gomez asserts his right to due process was violated because the charged alternative means of committing assault in the second degree constitute separate offenses. Due process requires the State to prove every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; State v. Borrero, 147 Wash.2d 353, 364, 58 P.3d 245 (2002).

¶ 50 We reject his argument on a number of grounds. Assault in the second degree is an alternative means crime. The statute lists alternative ways of proving the single offense of assault in the second degree, not separate crimes. Fuller, 185 Wash.2d at 34, 367 P.3d 1057. Although Garcia Gomez relies on the dissent in Armstrong, we are bound by the majority opinion. State v. Gore, 101 Wash.2d 481, 486-87, 681 P.2d 227 (1984). The other cases Gomez Garcia cites, Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), and Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), do not support his argument.

¶ 51 In Schad, a plurality of the United States Supreme Court concluded that when a statute enumerates alternative means, whether jurors must be unanimous with respect to a particular means depends on two questions. Schad, 501 U.S. at 630-32, 111 S.Ct. 2491. The first inquiry is legislative intent: Did the legislature intend to establish separate offenses for which unanimity is required or different means of violating a single offense for which unanimity is not required. Schad, 501 U.S. at 630-31, 111 S.Ct. 2491 ; United States v. Edmonds, 80 F.3d 810, 815 (3d Cir. 1996). The second inquiry is constitutional: If the legislature intended alternative means to violate a single crime, is the statute's definition of the crime unconstitutional under the due process clause. Schad, 501 U.S. at 632, 111 S.Ct. 2491 ; Edmonds, 80 F.3d at 815.

¶ 52 Due process places some limits "on a State's capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense." Schad, 501 U.S. at 632, 111 S.Ct. 2491. But the Court held the decision of the Arizona Legislature to treat premeditated murder and felony murder as alternative means rather than different offenses did not exceed due process limits. Schad, 501 U.S. at 632, 111 S.Ct. 2491. The Court emphasized that it has "never suggested that in returning general verdicts ... the jurors should be required to agree upon a single means of commission." Schad, 501 U.S. at 631, 111 S.Ct. 2491. Rather, " 'different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.' " Schad, 501 U.S. at 631-32, 111 S.Ct. 2491 (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring) ).

¶ 53 Richardson is a statutory interpretation case. In Richardson, the Supreme Court addressed a federal statute that required proof of multiple crimes. Richardson, 526 U.S. at 817-18, 119 S.Ct. 1707. The Court held that to convict a defendant under the federal continuing criminal enterprise drug statute, 21 U.S.C. § 848(a), a jury must agree unanimously on the specific, underlying drug code violations that comprise the "continuing criminal enterprise." Richardson, 526 U.S. at 815, 119 S.Ct. 1707. The Court interpreted 21 U.S.C. § 848(a) to mean Congress intended each violation to be treated as an element of the offense. Richardson, 526 U.S. at 818-19, 119 S.Ct. 1707. The Court noted potential unfairness of not requiring such agreement because the term "violation" encompassed approximately 90 predicate drug crimes involving "many different kinds of behavior of varying degrees of seriousness." Richardson, 526 U.S. at 819, 119 S.Ct. 1707. But the Court emphasized that juries "need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element" or "which of several possible means the defendant used to commit an element of the crime." Richardson, 526 U.S. at 817, 119 S.Ct. 1707.

Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement-a disagreement about means-would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.

Richardson, 526 U.S. at 817, 119 S.Ct. 1707.

¶ 54 We hold RCW 9A.36.021 does not violate due process. RCW 9A.36.021 is a single crime offense that defines different ways the offense may be committed.

Mandatory Legal Financial Obligations

¶ 55 Garcia Gomez challenges imposition of the mandatory $500 victim penalty assessment under RCW 7.68.035(1)(a) and the mandatory $100 DNA collection fee under RCW 43.43.7541. Garcia Gomez claims imposition of the victim penalty assessment and the DNA collection fee without consideration of his ability to pay violates due process. We have previously considered and rejected the argument that imposition of mandatory legal financial obligations violates due process. See State v. Lundy, 176 Wash. App. 96, 103, 308 P.3d 755 (2013) ; State v. Mathers, 193 Wash. App. 913, 918-24, 376 P.3d 1163, review denied, 186 Wash.2d 1015, 380 P.3d 482 (2016) ; State v. Seward, 196 Wash. App. 579, 585-86, 384 P.3d 620 (2016), review denied, 188 Wash.2d 1015, 396 P.3d 349 (2017).

Statement of Additional Grounds

¶ 56 In his pro se statement of additional grounds, Garcia Gomez argues the court ignored requests to discharge his attorney. The record does not support his argument. Contrary to Garcia Gomez's assertion, the trial court did not ignore his letters or requests to discharge his attorney, plead guilty to lesser charges, or be released and placed in drug treatment. The court did not abuse its discretion in denying his requests, including the request to discharge counsel. See State v. Stenson, 132 Wash.2d 668, 733-34, 940 P.2d 1239 (1997).

¶ 57 We affirm the jury convictions of two counts of domestic violence assault of C.G. in the second degree.

WE CONCUR:

Mann, A.C.J.

Leach, J.

      "Cauliflower ear" is associated with "repeated blows in boxing." Webster's Third New International Dictionary 355 (2002).

      State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984).

      Emphasis added.

      The Sixth Amendment to the United States Constitution does not require jury unanimity in state criminal cases. Apodaca v. Oregon, 406 U.S. 404, 406, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

      In 2007, the legislature enacted subsection (g) to add "strangulation" as a means of committing assault in the second degree. Laws of 2007, ch. 79, § 2. In 2011, the legislature amended subsection (g) to include "suffocation." Laws of 2011, ch. 166, § 1.

      Emphasis in original.

      Emphasis in original.

      We also note, "Under the invited error doctrine, a defendant may not request that instructions be given to the jury'' and then raise a constitutional challenge for the first time on appeal. State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999) ; State v. Hood, 196 Wash. App. 127, 131-32, 382 P.3d 710 (2016), review denied, 187 Wash.2d 1023, 390 P.3d 331 (2017).

      Emphasis in original.

      Emphasis omitted.

      Alterations in original.

      (Emphasis in original.) Garcia Gomez also cites State v. Peterson, 168 Wash.2d 763, 230 P.3d 588 (2010). The statute in Peterson is not analogous to the second degree assault statute. In Peterson, the Supreme Court concluded failure to register under former RCW 9A.44.130 (2003) is not an alternative means crime. Peterson, 168 Wash.2d at 770, 230 P.3d 588. The court held the statute prohibits the single act of moving without providing notice to appropriate authorities. The different deadlines for the provision of notice based on an offender's residential status did not create alternative means. Peterson, 168 Wash.2d at 769-70, 230 P.3d 588.

      Deoxyribonucleic acid.


author: KAUTZ, Justice.

text:
    In the MATTER OF the Termination of Parental Rights to: LCH, BLH, and KAGH, Minor Children.
    Elizabeth Joy Swenson, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).
    S-18-0079
    Supreme Court of Wyoming.
    January 31, 2019
    Representing Appellant: DaNece Day of Steven Titus & Associates, PC, Gillette, Wyoming.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.
    Guardian Ad Litem: Dan S. Wilde, Deputy State Public Defender; Aaron S. Hockman, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, a Division of the Office of the State Public Defender. Appearance by Mr. Hockman.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   KAUTZ, Justice.

[¶1] Elizabeth Joy Swenson (Mother) appeals the termination of her parental rights with respect to her three children, LCH, BLH and KAGH. We affirm.

ISSUE

[¶2] Mother presents the following issue:

Did the evidence clearly and convincingly establish that Mother's parental rights should be terminated?

FACTS

[¶3] Mother has three children who are the subject of this case: LCH born in 2009, BLH born in 2010, and KAGH born in 2013. Mother resided in Gillette, Wyoming, with the children, and the children's father resided in Newcastle, Wyoming. In June 2013, Mother was involuntarily hospitalized because of mental health problems, and the State placed the children in protective custody. At that time, LCH was four, BLH was two, and KAGH was about a week old. The juvenile court held a shelter care hearing on June 19, 2013, and placed the children in foster care. The children have remained in foster care since then.

[¶4] The Department of Family Services (DFS) developed a case plan for Mother and the children, identifying the permanency goal for the children as reunification with their mother. It provided extensive services to accomplish reunification. The children stayed overnight with Mother in August 2014, as part of a trial home placement. That effort ended unsuccessfully when Mother was unable to safely provide for the children. She permitted others, some intoxicated and one who brought a gun, in the home with the children. After the trial home placement failed, numerous counselors attempted to assist Mother in developing skills and abilities to consistently recognize and act on the needs of the children. Unfortunately, although Mother attended visitations and counseling, she was not engaged in the activities, and the children were not developing any relationship with her. To the contrary, visits were chaotic and increased visitation and joint counseling led to increased behavioral and emotional problems for the children.

[¶5] LCH, BLH and KAGH all have special emotional and physical needs. On October 31, 2014, Mother participated in a "Parent Child Interactional Evaluation" at the Kempe Center for the Prevention of Child Abuse and Neglect. The report from that evaluation stated: "The children require permanency as soon as possible; a potential caregiver should be able to meet their safety, emotional, and attachment needs immediately. ... [A]t the time of the evaluation it was not certain that she (Mother) had the capacity to provide long-term care for them or meet complex emotional needs without intensive support." It determined that KAGH required immediate permanency, and that Mother was unable to provide adequate care for her. The report concluded that LCH and BLH could wait on permanency for six months, giving Mother time to "demonstrate the ability to meet their needs."

[¶6] After the report from the Kempe Center, DFS provided substantial therapy, personal assistance, and visitation to both the children and Mother. Those efforts continued until a permanency hearing in the juvenile court in February 2016. Mother did not improve in her ability to provide for the children, but instead failed to maintain an adequately safe home for the children, fell asleep during three sessions, cancelled visits, and was unable to adequately provide for and control the children.

[¶7] The State filed a petition to terminate Mother's parental rights, and after trial, the district court ordered that Mother's rights to LCH, BLH and KAGH be terminated.

STANDARD OF REVIEW

[¶8] Mother challenges the sufficiency of the evidence to establish the statutory requirements for termination of her parental rights. "In a sufficiency of the evidence review, we give considerable deference to the district court's determination because it has the advantage of observing the demeanor of the witnesses." AJJ v. State (In re KMJ ) , 2010 WY 142, ¶ 20, 242 P.3d 968, 972 (Wyo. 2010).

We apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. BA v. Laramie County Dep't of Family Servs., 2007 WY 128, ¶ 7, 163 P.3d 844, 847 (Wyo. 2007) ; CDB v. DJE, 2005 WY 102, ¶ 4, 118 P.3d 439, 440 (Wyo. 2005) ; BSC v. Natrona County Dep't of Family Servs., 2004 WY 167, ¶ 11, 102 P.3d 890, 894 (Wyo. 2004). We examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. MN v. State, Dep't of Family Servs., 2003 WY 135, ¶ 5, 78 P.3d 232, 234 (Wyo. 2003). This Court then reviews the supporting evidence to ascertain if it clearly and convincingly satisfies the statutory elements required to support termination. EBH v. Hot Springs Dep't of Family Servs., 2001 WY 100, ¶ 14, 33 P.3d 172, 178 (Wyo. 2001). Evidence is clear and convincing if it would persuade a trier of fact that the truth of the contention is highly probable. LP v. Natrona County Dep't of Public Assistance and Social Servs., 679 P.2d 976, 982 (Wyo.1984). This Court may examine all of the properly admissible evidence in the record, but we do not reweigh the evidence. Street v. Street, 2009 WY 85, ¶ 9, 211 P.3d 495, 498 (Wyo. 2009). In applying our standard of review, we keep in mind that the right to associate with one's family is fundamental and strictly scrutinize petitions to terminate parental rights. RLA v. State of Wyo., Dep't of Family Servs., 2009 WY 109, ¶ 13, 215 P.3d 266, 268 (Wyo. 2009).

JLW v. CAB (In re WDW) , 2010 WY 9, ¶ 17, 224 P.3d 14, 19 (Wyo. 2010).

DISCUSSION

[¶9] The district court found that the State presented clear and convincing evidence proving the statutory grounds for termination of Mother's parental rights under both subsections (iii) and (v) of Wyo. Stat. Ann. § 14-2-309(a) (LexisNexis 2017). When more than one statutory basis for termination of parental rights is addressed in a case, as occurred here, we need not consider all grounds if sufficient evidence supports one of them. In re KGS, 2017 WY 2, ¶ 21, 386 P.3d 1144, 1148 (Wyo. 2017). It is necessary for us to only consider the sufficiency of the evidence to support termination under § 14-2-309(a)(v). This statute required the State to prove: "(1) that the children have been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months; and (2) that [the parent] is unfit to have custody and control of the children." In re AGS, 2014 WY 143, ¶ 20, 337 P.3d 470, 477 (Wyo. 2014).

[¶10] The first element - that the children have been in foster care for the required period of time - is only a "mathematical question." Id., ¶ 21, 337 P.3d at 477. "No justification or explanation as to why a child was placed in foster care is required in a termination proceeding brought on these grounds." In re KMO, 2012 WY 100, ¶ 18, 280 P.3d 1216, 1222 (Wyo. 2012). Mother concedes the children were in foster care under the responsibility of the State for fifty (50) months at the time of trial.

[¶11] The second element of § 14-2-309(a)(v) requires that the State prove Mother "unfit" to have custody and control of the children. We have previously recognized:

[T]he determination of whether a parent is unfit to have care and custody of a child must be made within the context of a particular case and will depend upon the situation and attributes of the specific parent and child. Looking at our cases, we are able to extrapolate that fitness includes the ability to meet the ongoing physical, mental and emotional needs of the child. It is well-settled that a parent's fitness is to be determined at the time of the termination trial.
That does not mean, however, that the district court must ignore evidence of a parent's previous unfitness. This Court recently reiterated that it is appropriate for a district court to consider a parent's history and pattern of behavior over time in determining whether rights should be terminated. Evidence of past behavior is plainly relevant in determining current parental fitness."

In re KMO , ¶ 20, 280 P.3d at 1222-23 (internal citations and quotations omitted).

[¶12] The record is replete with evidence that Mother was unable to meet the needs of the children at the time of trial. She was unable to meet their needs even during short visits, whether supervised or unsupervised. Mother does not argue that the evidence failed to show her inability to meet the needs of the children at the time of trial. To the contrary, she asserts that her "rehabilitation, while not complete , has been successful and should be allowed to continue." She claims the State should "invest more time and money into this family that would lead to eventual reunification." In essence, Mother claims that although she was unfit at the time of trial, additional time and assistance to her might result in her being able to adequately care for her children. Her position amounts to an admission that she was unfit at the time of trial.

[¶13] Mother's claim that she might become capable of caring for her children some day in the future ignores the plain language of § 14-2-309(a)(v), and the interests of her children. This section of our statute, adopted pursuant to the federal Adoption and Safe Families Act (ASFA), recognizes that "parents do not have an unlimited time to rehabilitate and reunite with their children." See State ex rel. Children, Youth & Families Dept. v. Maria C., 136 N.M. 53, 94 P.3d 796, 803 (2004). Both ASFA and § 14-2-309(a)(v) acknowledge the need of children for permanency and consistency by placing limits on the time for a parent to correct conditions sufficiently to reunite with the children. These statutes shift the emphasis from protracted efforts for reunification to an expeditious, permanent solution for the child. "A child cannot be held prisoner to the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." New Jersey Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 842 A.2d 215, 237 (2004). By adopting § 14-2-309(a)(v), the legislature recognized that when foster placement exceeds the statutory time frame, "it is the children who suffer by remaining in a state of flux and uncertainty." See David J. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U. Pitt. L. Rev. 139, 144-150 (1992) (discussing the developmental harm to children by long-term placement in temporary foster care). In re AGS , ¶ 17, 337 P.3d at 476-77.

[¶14] Section 14-2-309(a)(v) recognizes circumstances when a parent's rights yield to the permanency interests of the children, even when the parent wants to continue reunification efforts. We described this situation in In re MN , 2003 WY 135, ¶ 32, 78 P.3d 232, 239 (Wyo. 2003) :

We are not unsympathetic to the disabilities and hardships of the parents. However, this case demonstrates a situation in which the best interest of the child and the fundamental rights of the parents diverge. While we zealously guard the fundamental right of parents to care for and associate with their children, we also recognize that a child has the fundamental right to live in an environment free from filth, health hazards, and danger; he also has the right to nourishment, education, and necessary medical attention. Matter of MLM, 682 P.2d 982, 990 (Wyo.1984). "When the rights of a parent and the rights of a child are on a collision course, the rights of the parent must yield." Id.

Mother's claim that she may improve in the future and become "fit" to have custody and control of the children is irrelevant to the elements of § 14-2-309(a)(v).

[¶15] Mother makes other assertions which also are irrelevant to § 14-2-309(a)(v). She complains of the adequacy of services provided by DFS. She claims that she was not accused of violating any court order, and termination of her parental rights "is inherently unfair when there are other parents, without mental illness but sick with addiction, who make mistakes which are excused, overlooked and forgiven - time and time again." Mother complains that the State did not "prove by clear and convincing evidence that Mother cannot be rehabilitated." She alleges that DFS "abdicated it's [sic] Supervisory Role to a Third Party." None of these assertions have any bearing on whether the State proved the elements of § 14-2-309(a)(v).

CONCLUSION

[¶16] Section 14-2-309(a)(v) requires the State to prove, by clear and convincing evidence, that the children had been in foster care for fifteen of the most recent twenty-two months, and that Mother was unfit, at the time of trial, to have custody. Mother explicitly admits that, at the time of trial, the children had been in foster care for far longer than the required time. She tacitly admits that she was unfit to have custody by arguing that she would have gained fitness at some time in the future if the termination had not occurred. The district court's finding that each of these requirements for termination was proven by clear and convincing evidence is supported by the record.

[¶17] Affirmed.