In Re The Adoption Of C.h. ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 3* m
In the Matter of the Adoption of C.H., ^ "T1>2!
a person under the age of eighteen. No. 72464-9-1 ^ 5£jm
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UNPUBLISHED OPINION
FILED: April 27, 2015
Becker, J. — At issue is an order granting the petition of a child's
stepfather and mother, respondents herein, to terminate the parental rights of the
child's biological father, appellant herein. Termination of parental rights is
appropriate where a biological parent has failed to perform parental duties under
circumstances showing a substantial lack of regard for his or her parental
obligations, termination is in the best interest of the child, and the parent is
withholding his consent to the termination contrary to the best interest of the
child. Evidence that the parent made some steps to establish contact with the
child does not render a termination unlawful. We conclude the evidence in this
case was sufficient to support the order of termination.
On March 8, 2004, C.H. was born to an unmarried couple. At that time,
the child's mother was 17 years old and the father, Nicholas Schweyen, was 20.
No. 72464-9-1/2
They all lived together for a time, although not happily. Schweyen last saw the
child in 2006. In 2009, when the child was 5 years old, the child's mother
became involved with another man, whom she married in 2013. The record
shows that C.H. is fully incorporated into this new family and is bonded to the
stepfather. After marrying, the child's mother and stepfather joined in this petition
to terminate Schweyen's parental rights and for a stepparent adoption.
Schweyen did not consent. After a trial in which Schweyen was
represented by counsel, the court entered an order terminating Schweyen's
parental rights on August 27, 2014. This was followed by a decree of adoption
on September 19, 2014. In between, on September 12, 2014, Schweyen filed a
notice of appeal of the order of termination. Schweyen did not amend his notice
of appeal to include the decree of adoption.
A parent's rights may be terminated if it is shown by clear, cogent, and
convincing evidence that (1) it is in the best interest of the child, (2) the parent
has failed to perform parental duties under circumstances showing a substantial
lack of regard for his or her parental obligations, and (3) is withholding consent to
adoption contrary to the best interest of the child.
Except in the case of an Indian child and his or her parent, the
parent-child relationship of a parent may be terminated upon a
showing by clear, cogent, and convincing evidence that it is in the
best interest of the child to terminate the relationship and that the
parent has failed to perform parental duties under circumstances
showing a substantial lack of regard for his or her parental
obligations and is withholding consent to adoption contrary to the
best interest of the child.
RCW 26.33.120(1).
No. 72464-9-1/3
The adoption statute's requirement that clear, cogent, and convincing
evidence be presented to sustain an order terminating parental rights means that
the ultimate fact in issue must be shown to be highly probable. In re the Matter
of H.J.P.. 114 Wash. 2d 522, 532, 789 P.2d 96 (1990). On review, the appellate
court determines whether the trial court's findings of fact are supported by
substantial evidence which satisfies the "highly probable" test. H.J.P.. 114
Wash. 2d at 532.
Schweyen argues that termination was inappropriate because the
respondents failed to prove by clear, cogent, and convincing evidence that he
intentionally abandoned CH. He cites In re Adoption of Trvon. 27 Wash. App. 842,
621 P.2d 775 (1980).
The trial court's findings did not include a finding of intentional
abandonment, but they are not for that reason insufficient. A finding of
intentional abandonment is not a prerequisite for termination under the current
stepparent adoption statute, RCW 26.33.120, which was enacted in 1984 and
took its current form in 1987. See In re Adoption of McGee, 86 Wash. App. 471,
937 P.2d 622, review denied. 133 Wn.2d 1014(1997). Trvon was decided under
a previous statute, which required a finding that the parent "deserted or
abandoned such child under circumstances showing a wilful substantial lack of
regard for parental obligations." Former RCW 26.32.040(4) (1973) (emphasis
added); Trvon. 27 Wash. App. at 844. The Supreme Court has concluded that
regardless of whether the previous or present statutory scheme is employed, the
fundamental finding necessary to terminate parental rights is a finding of parental
No. 72464-9-1/4
unfitness. That is established by a finding that the nonconsenting parent has
failed to perform parental duties under circumstances showing a substantial lack
of regard for his or her parental obligations. H.J.P., 114 Wash. 2d at 530-31.
A parent's obligations are (1) to express love and affection for the child;
(2) to express personal concern over the health, education, and general well-
being of the child; (3) the duty to supply the necessary food, clothing, and
medical care; (4) the duty to provide an adequate domicile; and (5) the duty to
furnish social and religious guidance. In re Adoption of Lvbbert, 75 Wash. 2d 671,
674, 453 P.2d 650 (1969). The evidence amply supports the trial court's findings
that Schweyen did not fulfill any of these obligations. The findings support the
court's conclusion that Schweyen "failed to perform parental duties over an
extended period of time, showing substantial lack of regard for his parental
obligations."
Schweyen argues that the order may not stand because he did not at any
point intend to desert or abandon his child. He testified below that he always
intended to maintain a relationship with the child, that he made some attempts to
contact the mother in order to arrange for visitation, and that he at one point hired
a lawyer to assist him with this objective. He contends the court erred by failing
to find that his intentions were thwarted only because his lawyer was
incompetent, the mother was uncooperative, and in recent years he has
struggled with schizophrenia. According to Schweyen, this evidence showed that
his failure to perform parental duties was not willful and therefore the evidence
demonstrating his disregard of parental obligations was insufficient to support the
No. 72464-9-1/5
order of termination. We disagree. Under the statutory standard, recognized in
H.J.P. as adequate to satisfy due process, the evidence was sufficient to prove
by the clear, cogent, and convincing standard of proof that he "failed to perform
parental duties under circumstances showing a substantial lack of regard for his
or her parental obligations."
As respondents point out, the evidence shows Schweyen made no more
effort to be a parent than the appellant in In re Interest of Pawling, 101 Wash. 2d
392, 679 P.2d 916 (1984). In Pawling, the appellant last saw the child when he
was 2 years old and was incarcerated when the child was three. He tried to
arrange visits with the child but was unsuccessful. Even though he worked prior
to incarceration, he paid at most $300 in child support. While the appellant was
incarcerated, the mother remarried and the child's stepfather became his
psychological parent. The stepfather successfully petitioned to terminate the
appellant's parental rights when the child was six years old. Our Supreme Court
affirmed termination.
Schweyen likewise failed to express love, affection, and personal concern,
did not furnish social and religious guidance, did not provide a place to live, and
paid only nominal support. Following Pawling, we affirm the termination of
Schweyen's parental rights to C.H.
Respondents request attorney fees under RAP 18.9 on the ground that
Schweyen's appeal is frivolous. We decline to award fees in this case.
No. 72464-9-1/6
Affirmed.
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WE CONCUR:
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