(so O CD COO

« J>g IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 3* m

In the Matter of the Adoption of C.H.,

a person under the age of eighteen.

UNPUBLISHED OPINION

FILED: April 27, 2015

^ "T1>2!

No. 72464-9-1 ^ 5£jm

DIVISION ONE ^r 1^

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.

o 0°

00 2:<
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 Wn.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

Wn.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 Wn. 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 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 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 Wn.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 wellbeing 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 Wn.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 byfailing

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 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 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.

£ •7

WE CONCUR:

\^aj^<^) c.\\. ^q^v^.Qk.^v

6