In Re The Adoption Of: M.t.j.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the matter of the Adoption of No. 81769-8-I
M.T.J., DIVISION ONE
A minor child. UNPUBLISHED OPINION
CHUN, J. — M.T.J.’s father had contact with M.T.J. at the start of his life.
But since 2016, the father has had nearly no contact with the child despite a
parenting plan providing for visitation and communication. M.T.J.’s mother
obtained a protection order against M.T.J.’s father, but the order allowed him to
visit M.T.J. and did not prohibit him from contacting the child. M.T.J.’s mother
and his half-brother petitioned for termination of the father’s parental rights. The
trial court ordered termination. For the reasons discussed below, we affirm.
I. BACKGROUND
M.T.J. lives with his mother in Washington State. After M.T.J. was born,
his father moved from California to the mother’s residence.
In July 2013, M.T.J.’s mother asked the father to move out. She later
petitioned for a protection order against the father based on domestic violence
allegations. The court dismissed her petition, and she petitioned again.
Sometime after the father moved out, he brought a parentage action in
Snohomish County Superior Court. The court granted a temporary order on
Citations and pin cites are based on the Westlaw online version of the cited material.
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January 7, 2014, giving the father visitation rights every Tuesday and Thursday
from 4–6 p.m. and every Saturday from 12–5 p.m.
Then, in the domestic violence matter, the court issued a protection order
against the father on January 15, 2014. The order protected the mother and one
of her other sons but allowed the father to keep visiting M.T.J. under the
temporary parenting order and subsequent parenting plans.
Later, in the parentage action, the court issued an agreed order on
September 23, 2014, granting the father visitation every other weekend from
Saturday at 9 a.m. to Sunday at 12 p.m. and every Tuesday evening from 4 p.m.
to 7 p.m. The parties then agreed to, and the court entered, a final parenting
plan (the Parenting Plan) on December 1, 2014, which altered the weekend visits
to start on Fridays at 6 p.m. The Parenting Plan also provided that the parents
were to communicate by e-mail and notify each other at least 48 hours in
advance if unable to comply with the regular schedule. An order entered on June
2015 adjusted the Parenting Plan and provided the e-mail addresses for the
parents to use. The e-mail addresses in the order remain the current e-mail
addresses for the parties. The mother’s home address has also remained the
same.
The court in the domestic violation action renewed the protection order
three times. All the renewed protection orders allowed visitation to occur under
the Parenting Plan and two orders authorized e-mails between the parents to
discuss the Parenting Plan and the father’s visitation with M.T.J. On February 8,
2018, the mother petitioned to renew the order a fourth time, but the court
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declined to do so, finding that there had been no new incidents to justify its
renewal.
In December 2018, M.T.J.’s half-brother initiated a new matter and
petitioned to adopt M.T.J. And in January 2019, he petitioned to terminate the
father’s parental rights. The mother consented to the adoption. The matter
proceeded to trial.
At trial, the mother testified that during the first month and half following
the entry of the January 2014 temporary parenting order, the father visited M.T.J.
consistently. But she said that his visits became sporadic. She testified that he
became homeless during this time. The father’s last visit with M.T.J. occurred in
March 2016. Afterward, no other visitations occurred; though, until July 2016, the
father continued to e-mail the mother about cancelling visitations. Except for one
postcard he sent in April 2020, the father had no contact with M.T.J. since March
2016. The father continued to reside in Washington until at least October 2016
before moving back to California. In June 2019, the father presented at a
seminar in Bellevue, Washington, but did not try to contact M.T.J. while he was in
the state. Though he made some child support payments, as of early 2020, the
father owed almost $26,000 in child support despite receiving benefits from
California and earning income in the few years preceding trial. The father never
moved to modify his child support obligation, despite his claimed worsened
financial circumstances.
The father testified at trial that after he left the mother’s home in July 2013,
she falsely accused him of domestic violence, harassed him, drove him into
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poverty, and alienated him from M.T.J. The father said he receives “tremendous
. . . pushback” from the mother when he tries to connect with M.T.J. The father
testified that before March 2016, he had a “consistently wonderful” relationship
with M.T.J. He said he bought M.T.J. toys, taught him to ride a bike, went on
various outings, cooked him meals, and introduced M.T.J to his Buddhist
community. The father also expressed concern that if the court terminated his
parental rights, M.T.J. would not be exposed to his African American heritage,
which would have negative psychological effects on him. The father testified that
in February 2018, he sought to have an attorney move to modify the Parenting
Plan so M.T.J. could visit him in California. The father also called witnesses who
testified that they had observed him care for M.T.J. before March 2016.
The trial court found “by clear, cogent, and convincing evidence that [the
father] has failed to perform parental duties under circumstances showing a
substantial lack of regard for his parental obligations.” The court also found that
it was in “the best interest of [M.T.J.] that the parental rights of his birth father . . .
be terminated.” Based on these findings, the court ordered termination of the
father’s parental rights. The father appeals.
I. ANALYSIS
RCW 26.33.120 provides that a trial court may terminate a parent-child
relationship 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 [their] parental obligations and is
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withholding consent to adoption contrary to the best interest of the
child.
Under this standard, “the ultimate fact in issue is shown by evidence to be ‘highly
probable.’” In re Dependency of K.D.S., 176 Wn.2d 644, 653, 294 P.3d 695(2013) (quoting In re Dependency of K.R., 128 Wn.2d 129, 141, 94 P.2d 831(1973)). We review whether substantial evidence supports the trial court’s
findings of fact. In re Parental Rights to K.M.M., 186 Wn.2d 466, 477, 379 P.3d
75 (2016). “‘Substantial evidence’ is evidence in sufficient quantity to persuade
a fair-minded, rational person of the truth of the declared premise.” State v.
Saint-Louis, 188 Wn. App. 905, 914, 355 P.3d 345 (2015), aff’d sub nom. In re
Dependency of D.L.B., 186 Wn.2d 103, 376 P.3d 1099 (2016) (quoting In re
Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009)). We do “not
weigh the evidence or the credibility of witnesses.” Id. “Because of the highly
fact-specific nature of termination proceedings, deference to the trial court is
‘particularly important.’” K.M.M., 186 Wn.2d at 477 (quoting In re Welfare of Hall,
99 Wn.2d 842, 849, 664 P.2d 1245 (1983)).
RCW 26.33.120 requires a two-part showing for termination: (1) that the
parent failed to perform their parental duties under circumstances showing a
substantial lack of regard for their parental obligations, and (2) that termination is
in the best interest of the child. Courts must resolve the first issue before
addressing the second. In re Adoption of K.M.T., 195 Wn. App. 548, 558, 381
P.3d 1210 (2016).
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A. Failure to perform parental duties under circumstances showing a
substantial lack of regard for parental obligations
The father says the trial court erred in finding facts supporting termination
of his parental rights. The mother and M.T.J.’s half-brother counter that the
father fails to assign error to challenged findings of fact. We reach the merits of
the father’s appeal and conclude that substantial evidence supports the trial
court’s finding that he failed to perform parental duties under circumstances
showing a substantial lack of regard for parental obligations.
1. Assignment of error
The father assigns error to the trial court “finding facts that supported an
order that terminated [his] parental rights over M.T.J.” But as the mother and
M.T.J.’s half-brother note, he fails to assign error to specific findings of fact as
required by RAP 10.3(g). And the rule provides, “A separate assignment of error
for each finding of fact a party contends was improperly made must be included
with reference to the finding by number” and we “will only review a claimed error
which is included in an assignment of error or clearly disclosed in the associated
issue pertaining thereto.” RAP 10.3(g).
The father responds that his argument is “that the trial court’s findings of
fact do not support its determination to terminate his parental rights over M.T.J.,
meaning there is not substantial evidence in the record to support such a
determination.” The father conflates two separate inquiries. See Saint-Louis,
188 Wn. App. at 914 (“Where the trial court has weighed the evidence, our
review is limited to determining whether the court’s findings of fact are supported
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by substantial evidence and whether those findings support the court’s
conclusions of law.”).
Because he focuses on whether substantial evidence supports the trial
court’s determination and because his argument is fact-based, it appears the
father is challenging the trial court’s findings of fact. The following is the only
finding of fact that he appears to challenge: “The testimony at trial demonstrated
by clear, cogent, and convincing evidence that [the father] has failed to perform
parental duties under circumstances showing a substantial lack of regard for his
parental obligations.” We thus review that finding for substantial evidence. See
State v. Kinneman, 120 Wn. App. 327, 342, 84 P.3d 882 (2003) (“‘[i]n a case
where the nature of the appeal is clear and the relevant issues are argued in the
body of the brief . . . , there is no compelling reason for the appellate court not to
exercise its discretion to consider the merits of the case or issue.’” (first alteration
in original) (quoting State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995)));
RAP 1.2(a) (“These rules will be liberally interpreted to promote justice and
facilitate the decision of cases on the merits.”).
We treat the remaining, unchallenged findings of fact as verities on
appeal. See State v. Moore, 161 Wn.2d 880, 884, 169 P.3d 469 (2007) (“Moore
does not challenge the trial court’s findings of fact. We therefore view these
findings as verities.”).
2. Substantial evidence supports the trial court’s finding
The father says the trial court erred in finding facts supporting termination
of his parental rights. The mother and M.T.J.’s half-brother respond that
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unchallenged and undisputed findings of fact support the trial court’s decision to
terminate the father’s parental rights. We conclude that substantial evidence
supports the court’s finding that clear, cogent, and convincing evidence showed
that the father failed to perform his parental duties under circumstances showing
a substantial disregard for his parental obligations.
As mentioned above, termination under RCW 26.33.120 requires 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 [their] parental obligations and is
withholding consent to adoption contrary to the best interest of the
child.
A parent’s obligations involve the following minimum attributes
“(1) [E]xpress love and affection for the child; (2) 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 Interest of Skinner, 97 Wn. App. 108, 119, 982 P.2d 670 (1999) (quoting In
re H.J.P., 114 Wn.2d 522, 531, 789 P.2d 96 (1990) (quoting In re Adoption of
Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969))). “A proper regard for
parental obligations is reflected in behavior, not intentions.” In re Adoption of
McGee, 86 Wn. App. 471, 480, 937 P.2d 622 (1997).
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a. Expressed love and affection1
The father says it cannot be disputed that he expressed love and affection
for M.T.J. He emphasizes evidence showing that before March 2016, he played
with M.T.J., bought him toys, took him on outings, and had a good relationship
with him. But the father does not dispute that he had no contact with M.T.J.—
aside from a postcard he sent in 2020 after litigation began—since March 2016.
The record shows that the father essentially did not express love and affection for
M.T.J. for at least four years. See In re Interest of J.L.M., No. 36656-1-III, slip
op. at 10, (Wash. Ct. App. Aug. 29, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/366561_unp.pdf., review denied, 194
Wn.2d 1025, 456 P.3d 396 (2020) (upholding a termination order where the birth
mother did not express love and affection to the child for five years).2
The father also points to his testimony that he would give his life for M.T.J.
and that M.T.J. is the only thing that matters to him. But in assessing the failure
to perform parental duties, we look at actions and not intentions. See McGee, 86
Wn. App. at 480.
Finally, the father contends he did not continue to have a relationship with
M.T.J. because the mother actively alienated him through false allegations, by
preventing M.T.J.’s paternal grandmother from seeing M.T.J., and by harassing
1
We do not mean to suggest in our analysis that the father does not feel love or
affection for M.T.J., or—pertinent to the next section of this opinion—does not have
personal concern about his son’s well-being. We note that the legal standards require
us to examine what has been “expressed.”
2
See GR 14.1(c) (“Washington appellate courts should not, unless necessary for
a reasoned decision, cite or discuss unpublished opinions in their opinions.”).
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him. But first, none of the protection orders arising from the mother’s allegations
prevented the father from visiting or contacting M.T.J. The December 2014 and
2016 orders explicitly authorized e-mails between the parents for purposes of the
Parenting Plan. Second, whether the mother did prevent M.T.J.’s paternal
grandmother from seeing M.T.J. has no bearing on the father’s expression of
love and affection to M.T.J. And third, the trial court did not appear convinced by
the father’s testimony that the mother’s alleged harassment of him prevented him
from expressing love and affection to M.T.J. We do not assess credibility on
appeal nor do we re-weigh the evidence. See Saint-Louis, 188 Wn. App. at 914.
b. Expressed personal concern about the health, education, and
general well-being of the child
The father contends that he satisfied this requirement because he testified
about his concern that M.T.J. would suffer if he was not exposed to his African
American heritage. But again, we assess a parent’s actions rather than their
intentions. See McGee, 86 Wn. App. at 480. The father also points to evidence
in the record that he took M.T.J. on outings to the park, library, and zoo and says
those outings were educational. But these outings occurred before the father
essentially disappeared from M.T.J.’s life in March 2016.
c. The duty to supply the necessary food, clothing, and medical
care
The father failed to supply necessary food, clothing, and medical care to
M.T.J. He says that despite not seeing his son since March 2016 and living in
poverty, he did his best to support M.T.J. financially, and made some child
support payments to the mother when possible. The record shows that at the
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time of trial, the father owed close to $26,000 in child support. The trial court
found, and the father does not dispute, that since paying slightly less than $3,000
in 2016, he paid $54.26 in 2017, nothing in 2018, $525 in 2019, and $1000 in
2020 after this termination matter began. If, as the father contends, other
payments were impossible, he could have moved to modify his child support
obligation. But he never did so.
The father also points to evidence that he and M.T.J. made meals
together and he regularly fed M.T.J. But no evidence exists, and the father does
not allege, that he fed or cared for M.T.J. in such a manner since March 2016.
The reality remains that for four years, the father did not feed, clothe, or care for
his son or provide reliable financial support for those purposes.
d. The duty to provide an adequate domicile
The father did not provide an adequate domicile for M.T.J. He does not
dispute that he has not provided a home for M.T.J. since becoming homeless
and moving to California. But the father contends that in February 2018, he
contacted an attorney to help modify the Parenting Plan so that M.T.J. could visit
him in California. But a visit to California, even if it had happened, does not
equate to adequate domicile as the father does not specify where M.T.J. would
stay during such a visit, nor does the father show how he helps provide M.T.J.
with an adequate domicile when he is not visiting the father. And as discussed
above, the father has failed to satisfy most of his child support obligations.
Those obligations, if met, could have contributed to providing and maintaining an
adequate home for M.T.J.
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e. Duty to furnish social and religious guidance
The father says that he satisfied his duty to furnish social and religious
guidance because he is concerned about M.T.J. not being exposed to his African
American heritage. But again, “proper regard for parental obligations is reflected
in behavior, not intentions.” McGee, 86 Wn. App. at 480. The father also points
to the fact that he introduced M.T.J. to his Buddhist community. But that
occurred before March 2016. He does not allege that he acted to furnish social
and religious guidance since March 2016.
The father cites the 36-year-old case of In re Interest of J.D., 42 Wn. App.
345, 711 P.2d 368 (1985).3 There, Division Three of this court reversed the trial
court’s termination order because insufficient evidence supported a finding that
the father failed to perform his parental obligations. Id. at 349. The court
decided J.D. based on a since-repealed statute, former RCW 26.32.056 (1979),
which required a showing that the parent “deserted or abandoned the child.” Id.
at 348. In J.D., the father lived in Alaska but he made “occasional telephone
calls” and sent cards and gifts on birthdays and holidays. Id. at 346. He also
regularly paid child support until he lost his job. Id. at 346–47.
J.D. is distinguishable because it rested on a repealed statute;
RCW 26.33.120 does not require a showing of abandonment. Also, in J.D.,
though visitation was lacking because of distance, the father remained in contact
3
The father also distinguishes the facts of Lybbert and McGee, contending that
the trial court relied on those cases in its holding. But the trial court did not rely on a
comparison of facts between this case and those cases to support its order; instead, the
court cited those cases for the applicable standards. Thus, we need not address the
father’s contention that the facts of those cases are distinguishable.
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with the children through phone calls and sent gifts and cards regularly. Here,
the father does not dispute that after March 2016, he had no contact with M.T.J.
for four years until he sent one postcard in April 2020, after the commencement
of this litigation.
Substantial evidence supports the trial court’s finding that clear, cogent,
and convincing evidence shows that the father failed to perform parental duties
under circumstances showing a substantial lack of regard for his parental
obligations.
B. Termination in Best Interest of the Child
The father contends that the trial court erred in reaching the inquiry of
whether termination of his parental rights was in M.T.J.’s best interest. He says
the court should not have reached this inquiry because clear, cogent, and
convincing evidence did not support the court’s determination that he abandoned
his parental responsibilities.4 The mother and M.T.J’s half-brother counter that
the father cites a repealed statute, and that the current applicable statute does
not require proof of abandonment. And they contend that because overwhelming
and undisputed evidence supports the trial court’s determination that the father
failed to perform his parental duties under circumstances showing a substantial
disregard for his parental obligations, the court did not err by deciding whether
termination was in M.T.J.’s best interest. We conclude that the court did not err
by deciding whether termination was in M.T.J.’s best interest.
The father incorrectly cites former RCW 26.32.056 (1979), the repealed
4
predecessor to RCW 26.33.120, in his opening brief.
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Courts must address whether a parent failed to perform parental duties
under circumstances showing a substantial lack of regard for parental obligations
before addressing whether termination is in the best interest of the child. See
K.M.T., 195 Wn. App. at 558. Because we conclude that substantial evidence
supports the court’s finding that clear, cogent, and convincing evidence showed
that the father failed to perform his parental duties under circumstances showing
a substantial disregard for his parental obligations, the court did not err by
proceeding to the inquiry of whether termination was in M.T.J.’s best interest.5
We affirm.
WE CONCUR:
5
The father also assigns error to the trial court “ordering that [M.T.J’s half
brother] met the statutory requirements to allow him to adopt M.T.J.” But because he
presents no argument for this assignment of error, we do not address it. See Prostov v.
Dep’t of Licensing, 186 Wn. App. 795, 823, 349 P.3d 874 (2015) (“The failure of an
appellant to provide argument and citation of authority in support of an assignment of
error precludes appellate consideration of an alleged error.”).
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