(so O CD COO « J>g INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON 3* m Inthe Matter ofthe Adoption of C.H., a person underthe age ofeighteen.

UNPUBLISHED OPINION FILED: April 27, 2015 ^ "T1>2! 

### No. 72464-9-1 ^ 5£jm 

## DIVISIONONE ^r 1^

Becker, J. — At issue is an order granting the petition of a child's 

### stepfatherand mother, respondents herein, to terminate the parental rights of the child's biological father, appellant herein. Termination ofparental rights is appropriate where a biological parent has failed to perform parental duties under circumstances showing a substantial lack ofregard for his or her parental 

### obligations, termination is in the best interestofthe child, and the parent is withholding his consentto the termination contraryto the best interest of the child. Evidence thatthe parent made some steps to establish contactwiththe child does not render a termination unlawful. We conclude the evidence in this
case was sufficientto support the order oftermination. On March 8, 2004, C.H. was born to an unmarried couple. Atthattime, 

### the child's motherwas 17 years old and the father, Nicholas Schweyen, was 20. o 0° 00 2:<No. 72464-9-1/2 They all lived togetherfor 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 stepfatherjoined inthis petition to terminate Schweyen's parental rights and for a stepparent adoption. Schweyen did not consent. After a trial inwhich Schweyen was represented by counsel, the court entered an orderterminating Schweyen's parental rights on August 27, 2014. This was followed by a decree ofadoption
on September 19, 2014. In between, on September 12, 2014, Schweyen filed a notice ofappeal ofthe order oftermination. Schweyen did not amend his notice ofappeal to include the decree ofadoption. A parent's rights may be terminated if it is shown by clear, cogent, and convincing evidence that (1) it is inthe best interest ofthe child, (2) the parent 

### has failed to perform parental duties under circumstances showing a substantial lack ofregard for his or her parental obligations, and (3) is withholding consentto adoption contrary to the best interest ofthe child. Except inthe case ofan 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 inthe best interest ofthe child to terminate the relationship and that the parent has failed to perform parental duties under circumstances 

### showing a substantial lack ofregard for his or her parental obligations and is withholding consentto adoption contrary to the best interest ofthe child. RCW 26.33.120(1).No. 72464-9-1/3 

### The adoption statute's requirementthat clear, cogent, and convincing evidence be presented to sustain an orderterminating parental rights means that the ultimate fact in issue must be shown to be highly probable. In re the Matter 

### ofH.J.P.. 114 Wn.2d 522, 532, 789 P.2d 96 (1990). On review, the appellate court determines whetherthe trial court's findings of fact are supported by substantial evidence which satisfies the "highly probable" test. H.J.P.. 114 Wn.2d at 532. Schweyen argues thattermination was inappropriate because the 

### respondents failed to prove by clear, cogent, and convincing evidence that he intentionally abandoned CH. He cites Inre Adoption of Trvon. 27 Wn. App. 842, 621 P.2d 775 (1980). The trial court's findings did not include a finding ofintentional abandonment, butthey are notfor that reason insufficient. Afinding of intentional abandonment is not a prerequisite for termination underthe current stepparent adoption statute, RCW 26.33.120, which was enacted in 1984 and took its currentform in 1987. See In re Adoption of McGee, 86 Wn. 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 Wn. App. at 844. The Supreme Court has concluded that regardless ofwhetherthe previous or present statutory scheme is employed, the fundamental finding necessary to terminate parental rights is a finding ofparentalNo. 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 

### ofregard for his or her parental obligations. H.J.P., 114 Wn.2d at 530-31. A parent's obligations are (1) to express love and affection for the child; 

### (2) to express personal concern overthe health, education, and general well

### being ofthe 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. Inre Adoption ofLvbbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969). The evidence amply supports the trial court's findings 

### that Schweyen did notfulfill any ofthese obligations. Thefindings supportthe court's conclusion that Schweyen "failed to perform parental duties overan 

### extended period of time, showing substantial lack of regard for his parental obligations." 

### Schweyen argues thatthe ordermay not stand because he did not at any point intend to desert orabandon his child. He testified below that he always intended to maintain a relationship withthe child, that he made some attempts to 

### contactthe mother inorderto arrange for visitation, and that he at one point hired


### a lawyerto assisthimwith thisobjective. He contends the court erred byfailing to find that his intentions were thwarted only because his lawyerwas 

### incompetent, the motherwas uncooperative, and inrecentyears he has 

### struggledwith schizophrenia. According to Schweyen, this evidence showed that his failure to perform parental duties was notwillful and therefore the evidence 

### demonstrating his disregard of parental obligations was insufficientto support theNo. 72464-9-1/5
order oftermination. We disagree. Underthe statutory standard, recognized in 

### H.J.P. as adequate to satisfy due process, the evidence was sufficientto prove by the clear, cogent, and convincing standard ofproofthat he "failed to perform parental duties undercircumstances showing a substantial lack ofregard for his
or her parental obligations." As respondents point out, the evidence shows Schweyen made no more effortto be a parentthan the appellant in In re Interest of Pawling, 101 Wn.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 butwas unsuccessful. Even though he worked prior to incarceration, he paid at most $300 in child support. While the appellantwas 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 childwas 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.


## £ •7 WE CONCUR:



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