                                                                           FILED
                                                                        6/11/2018
                                                                     Court of Appeals
                                                                         Division 1
                                                                   State of Washington



          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

In the Matter of the Adoption of         )
FLL, a child.                            )       No. 77391-7-1
                                         )
LB and JB,                               )       ORDER GRANTING MOTION
                                         )       FOR RECONSIDERATION,
                     Respondents,        )       WITHDRAWING OPINION,
                                         )       AND SUBSTITUTING OPINION
              v.                         )
                                         )
FL,                                      )
                                         )
                     Appellant.          )


       Appellant FL has filed a motion for reconsideration of the opinion filed in the

above matter on April 16, 2018. Respondents LB and JB have filed a response in which

they neither endorse nor object to appellant's motion. The court has determined that

appellant's motion for reconsideration should be granted, the opinion should be

withdrawn and a substitute opinion be filed. Now, therefore, it is hereby

       ORDERED that appellant's motion for reconsideration is granted. It is further

       ORDERED that the opinion filed on April 16, 2018, is withdrawn and a substitute

opinion be filed.



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                                                    C,OURI Or APPEALS DIV 1
                                                     STATE OF  WASHINGTON

                                                     2018 JUN 1 1 AH 10: 30




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Adoption of
FLL, a child.                                      No. 77391-7-1

LB and JB,                                         DIVISION ONE

                      Respondents,

              V.                                   UNPUBLISHED OPINION

FL,                                                FILED: June 11,2018

                      Appellant.
                                           )

       BECKER, J. — Shortly after receiving a life sentence for murdering the

mother of one of his sons, appellant FL stopped communicating with FLL, his son

by a different mother. FLL's mother and stepfather, JB and LB, petitioned the

court to terminate FL's parental rights and to adopt FLL. The superior court

granted the petition, finding in part that appellant "has failed to, and is

permanently unable to, perform parental duties." He argues on appeal that the

court relied on inadmissible hearsay and, alternatively, that he received

ineffective assistance of counsel. We affirm.

       FL and JB married in 2005. They are the biological parents of a boy, FLL,

born in 2005. FL has another son born a year earlier to a different mother.
No. 77391-7-1/2


       In 2008, a Mississippi jury convicted appellant of murdering the mother of

the child's half-brother. The jury also convicted him of the kidnapping and felony

child abuse of the child's half-brother. The court sentenced appellant to life in

prison without parole.

       In 2012, the child's mother, JB, divorced appellant and married LB. Four

years later, LB petitioned to adopt FLL and to terminate appellant's parental

rights. Following a two-day trial, the superior court granted the petition and

entered the following oral ruling:

               Based on all of the evidence in this case, the Court will grant
       the Petitioners' request to terminate the parental rights of[FL], and
       to permit the child to be adopted by[LB] pursuant to RCW
       26.33.120. In doing so, the Court makes an express finding . . .
       that there is clear, cogent, and convincing evidence that[FL] is an
       unfit parent based on.. . the parent's failure to perform parental
       duties under circumstances showing a substantial lack of regard for
       his parental obligations.
               This is the threshold issue that the Court must resolve before
       looking to the child's best interest. Under statutory interpretation
       and also case law, there are five different requirements which
       define parental duties: expressions of love and affection,
       expressions of personal concern for the health, education, and
       wellbeing; and supplying necessary food, clothing, and medical
       care; providing adequate domicile; and furnishing social and . . .
       religious guidance to the child. The last three [FL]simply is not
       capable of doing given his incarceration in Mississippi... for a life
       sentence. So, those three prongs,food, clothing, medical care,
       housing, and social and religious guidance, are not capable of
       being provided. Suppose social guidance could be done through
       letters, but more importantly, the expressions of love and affection
       and expression of personal concern for the health, education, and
       wellbeing, simply there is just no evidence of that in this case.
               There was contradictory testimony about when [FL]'s contact
       dropped off, but by his own testimony he testified that since 2012
       he has had no phone calls and no letters to the child.. ..The
       testimony that the mother and [LB] have, you know, rebuffed all
       attempts is simply not credible to this Court. This Court finds that if

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No. 77391-7-1/3


      there had been efforts to contact the child, either through family
      members of[FL] or—by proxy, or by [FL] himself, that that would've
      been allowed. So, the Court finds that[FL] is unfit. .. based on all
      of the above.
               The Court does want to acknowledge the law in this area,
      that parental misconduct does not necessarily—or automatically
      result in termination of parental rights. There is plenty of case law
      to that effect. But the Court can make a fact-specific determination
      whether the misconduct is demonstrative of parental unfitness, and
      in this case the Court does find by clear, cogent, and convincing
      evidence in the form of a criminal conviction which has been upheld
      on appeal that[FL]is unfit to parent the child. Without going into
      great detail, because it's simply not necessary, but the conviction of
      [FL] with regard to his actions of a terrible neglect of his young son
      [FLL's half-brother], born the same year... as[FLL].. ., that
      compels this Court to also find that under that conviction, the facts
      of it, that he is an unfit parent.
               The—there has been no testimony in this case that[FL] has
      in any way rehabilitated himself during incarceration. His testimony
      that he would be writing but that he doesn't have sufficient
      resources to pay for postage, simply not credible. It's not credible
      that his family wouldn't assist him in this regard.
               With regard to the next area that the Court needs to focus
      on, the Court specifically finds that it is in the best interest of this
      child to terminate the parental rights of[FL], because he has no
      relationship with his birth father, and will not have the opportunity to
      have one, and perhaps most importantly, the testimony of[LB]
       himself was very compelling in his desire and ability to continue
       parenting [FLL] in the way that he has been. He acts as a father
      emotionally, physically, and gives him the support, attention, and
      devotion that this child needs and, frankly, is thriving under.

             That said, this Court finds clear, cogent, and convincing
      evidence, also contained in Ms. Kennelly's report and the testimony
      that came forth in this case, that it is clearly in. . .[FLL]'s best
      interests that this adoption go through, and the Court is willing to
      sign any orders to that effect that you have.

(Emphasis added.)

      The court subsequently entered the following written findings and

conclusions which incorporated, but partially amended, its oral ruling:


                                         3
No. 77391-7-1/4


             2. There is clear, cogent and convincing evidence that it is
                in the child's best interests to terminate the relationship.
                Biological father has failed to, and is permanently unable
                to, perform parental duties. The Court specifically finds
                that the respondent father is unfit based on his failure to
                perform parental duties under circumstances showing a
                substantial lack of regard for his parental obligations.
             3. Respondent father is serving a life sentence without
                possibility of parole for first-degree murder and felony
                child abuse of the subject child's half-brother. The
                circumstances blocking respondent father's performance
                of his parental obligations demonstrate a substantial lack
                of regard for his parental duties.
             4. The Respondent father's withholding of consent to the
                proposed adoption is contrary to the best interests of the
                child.
             5. Adoption of[FLL] by his step-father,[LB] is in the child's
                best interests.
             6. The court has considered the supporting documents,
                testimony and argument from parties but did not consider
                the report of Kathleen Kennelly,.. .

              . . . The Court further incorporates its oral rulings made on
       this day with the express exception of any references made to the
       Kennelly report and recommendation.

(Emphasis added.) FL appeals.

Standard of Review

       Parental rights are a fundamental liberty interest protected by the United

States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,71

L. Ed. 2d 599(1982). To terminate parental rights, the State must satisfy a two-

step test. First, it must prove the following statutory elements by clear, cogent,

and convincing evidence:

            (a) That the child has been found to be a dependent child;
            (b) That the court has entered a dispositional order pursuant
       to RCW 13.34.130;


                                         4
No. 77391-7-1/5


              (c) That the child has been removed or will, at the time of the
       hearing, have been removed from the custody of the parent for a
       period of at least six months pursuant to a finding of dependency;
             (d) That the services ordered under RCW 13.34.136 have
       been expressly and understandably offered or provided and all
       necessary services, reasonably available, capable of correcting the
       parental deficiencies within the foreseeable future have been
       expressly and understandably offered or provided;
             (e) That there is little likelihood that conditions will be
       remedied so that the child can be returned to the parent in the near
       future.. ..[and]

              (f) That continuation of the parent and child relationship
       clearly diminishes the child's prospects for early integration into a
       stable and permanent home.

RCW 13.34.180(1). If the State satisfies these criteria, the court may terminate

parental rights only if the State also demonstrates by a preponderance of the

evidence that termination is in the "best interests" of the child. RCW

13.34.190(2).

       In addition to the statutory requirements for termination, due process

protections require a court to find current parental unfitness before parental rights

can be terminated. In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379

P.3d 75 (2016). While "'[i]mprisonment alone does not necessarily justify the

termination of parental rights," an incarcerated parent's "inability to perform his

or her parental obligations is certainly relevant to the child's welfare." In re

Welfare of E.D., 195 Wn. App. 673, 690, 381 P.3d 1230(2016)(quoting In re

Dependency of J.W., 90 Wn. App. 417, 426, 953 P.2d 104 (1998)), review

denied, 187 Wn.2d 1018 (2017). The court need not "disregard the negative

effects that incarceration may have on a delicate parent-child relationship. . .[or]


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No. 77391-7-1/6


ignore the child's need for timely permanency." E D., 195 Wn. App. at 695. A

parent's prison term may constitute a continuing incapacity affecting the parent's

ability to meet parental obligations. J.W., 90 Wn. App. at 426; In re Welfare of

Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973).

       On review, unchallenged findings of fact are considered verities. In re

Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001). Challenged

findings will be upheld if they are supported by substantial evidence. J.F., 109

Wn. App. at 722. We defer to the trier of fact on issues of conflicting testimony,

credibility of the witnesses, and the weight or persuasiveness of the evidence.

J.F., 109 Wn. App. at 722; In re Termination of S.J., 162 Wn. App. 873, 881, 256

P.3d 470 (2011); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

Termination of FL's Parental Rights

       Appellant contends the trial court erred in terminating his parental rights

because it improperly relied on two forms of inadmissible hearsay: (a) a

nontestifying social worker's adoption report and (b) a Mississippi Court of

Appeals opinion upholding appellant's convictions for murder, kidnapping, and

child abuse. We disagree.

       Adoption Report

       As required by RCW 26.33.200(1), the trial court ordered the preparation

of an adoption report. Kathleen Kennelly, a social worker and guardian ad litem,

prepared the report but did not testify at trial. Kennelly's report stated in part that

adoption was in the child's best interests.


                                          6
No. 77391-7-1/7


       Appellant objected to the report's admission for purposes of the

termination petition, arguing that it contained hearsay. Although the court

sustained the objection, its oral ruling suggested it considered the report in

terminating FL's parental rights. The court stated it considered the report "not. . .

for the purposes of the termination per se; just the information in there with

regard to [parental]fitness." In its written decision, however, the court made

clear that it "did not consider the report of Kathleen Kennelly." And while the

court incorporated its tentative oral ruling into its final written ruling, it did so "with

the express exception of any references made to the Kennelly report and

recommendation."

       Thus, contrary to FL's assertions, the record establishes that the court did

not consider the adoption report in terminating his parental rights.

       Mississippi Appellate Court Decision

       Appellant also objected to the trial court's consideration of a Mississippi

appellate decision affirming his convictions for murder, kidnapping, and child

abuse. He argued that the opinion could not be considered for any purpose

other than the fact of conviction. The trial court sustained the objection, ruling

that the contents of the decision were hearsay and irrelevant. In its oral ruling,

however, the court stated:

       in this case the Court does find by clear, cogent, and convincing
       evidence in the form of a criminal conviction which has been upheld
       on appeal that[FL] is unfit to parent the child. Without going into
       great detail, because it's simply not necessary, but the conviction of
       [FL] with regard to his actions of a terrible neglect of his young son
       [FLL's half-brother], born the same year, basically, as[FLL] in this

                                             7
No. 77391-7-1/8


       case, that compels this Court to also find that under that conviction,
       the facts of it, that he is an unfit parent.

(Emphasis added.) Because the court's written decision incorporated this portion

of its oral ruling without qualification, appellant contends the court improperly

considered hearsay recited in the Mississippi appellate decision and, therefore,

reversal is required. We disagree.

       Even assuming the court's oral ruling referenced excluded hearsay,

reversal is required only if, within reasonable probabilities, the error affected the

court's decision. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255(2001). A

review of the court's oral and written rulings demonstrates that the hearsay was

inconsequential to the court's finding of parental unfitness and termination of

appellant's parental rights.

       The court's oral ruling focused primarily on five parental duties that courts

may consider in determining parental fitness:

       "(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 the Interests of H.J.P., 114 Wn.2d 522, 531, 789 P.2d 96(1990)(alteration

in original), quoting In re Adoption of Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650

(1969). The court concluded appellant was not capable of fulfilling duties 3, 4,

and 5, "given his incarceration in Mississippi. . . for a life sentence." It further

concluded he had not fulfilled duties 1 and 2 since 2012 despite the ability to



                                           8
No. 77391-7-1/9


contact FLL by phone or letter. In addition, the court relied on the fact of

appellant's "criminal conviction which has been upheld on appeal."

       Similarly, the court's written ruling focused on appellant's convictions,

incarceration, and failure/inability to perform his parental duties during his

incarceration:

              2. There is clear, cogent and convincing evidence that it is
                 in the child's best interests to terminate the relationship.
                 Biological father has failed to, and is permanently unable
                 to, perform parental duties. The Court specifically finds
                 that the respondent father is unfit based on his failure to
                 perform parental duties under circumstances showing a
                 substantial lack of regard for his parental obligations.

              3. Respondent father is serving a life sentence without
                 possibility of parole for first-degree murder and felony
                 child abuse of the subject child's half-brother. The
                 circumstances blocking respondent father's performance
                 of his parental obligations demonstrate a substantial lack
                 of regard for his parental duties.

(Emphasis added.)

       Appellant's convictions for murder, kidnapping, and child abuse, his

sentence of life without parole, and his failure to contact his child or perform

parental duties since 2012 overwhelmingly support the court's findings and

decision to terminate his parental rights. There is no reasonable probability that

the result would have been different absent the court's alleged consideration of

hearsay. Given that conclusion, appellant's claim that his counsel was ineffective

for failing to renew his objection to the hearsay also fails. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)(defendant claiming ineffective

assistance of counsel must establish both deficient performance and a

                                          9
 No. 77391-7-1/10


 reasonable probability that but for counsel's omission, the outcome would have

 been different).

       The respondents have filed a cost bill. The court exercises its discretion

 not to impose appellate costs.

       Affirmed.




 WE CONCUR:



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