                                                                        FILED
                                                                    OCTOBER 29, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

In the Matter of the Interest of              )
                                              )        No. 36241-8-III
J.A.H.-I,                                     )
                                              )
       a person under the age of eighteen.    )        UNPUBLISHED OPINION
                                              )

       KORSMO, J. — A father, J.I., appeals from the termination of his parental rights to

J.H.-I. in an action brought by the mother, J.J., and her husband. We affirm.

                                         FACTS

       The child was born in September 2009, shortly after the father’s return from an

overseas military deployment. The parents were not married, but lived together for a few

months until permanently separating in May 2010. Although the mother and child stayed

in the greater Yakima area, the father moved around. He lived for a time in Spokane,

then back in Yakima during 2013-2014, and then in Alaska for three years.

       The father’s last physical visit with the child occurred in February 2011, and the

one occasion when he briefly spoke on the telephone with the child was in 2013. Over a

seven year period he sent the child six birthday cards and six Christmas cards.

       The mother married another man, E.J., in 2012 after a year of living with him.

J.H.-I is a special needs child whose social development lags behind her chronological
No. 36241-8-III
In the Matter of the Interest of J.A.H.-I


development. She does not know J.I. The child and E.J. bonded quite well and the child

referred to him as “father.”

       The mother brought an action to establish a parenting plan in 2011, an action that

angered the father. He represented himself in court. The judge entered a plan by which

the father would have a Sunday afternoon in Ellensburg supervised by the child’s

maternal grandfather. J.I. did not exercise his visitation rights, feeling uncomfortable

with the location.

       In early 2017, he reached out to a dispute resolution center, but learned it did not

consider visitation an appropriate subject for their services. J.J. and E.J. then filed this

action to terminate the father’s parental rights in June 2017. The petition cited the

father’s absence from the child’s life and argued that it was in the child’s best interest for

E.J. to be the legal father.

       The matter proceeded to bench trial, with both parties represented by counsel.

After considering the evidence described above, the court found that E.J. had performed

the role of father to the child. The court concluded that J.I. had failed to perform his

parental duties and therefore was an unfit parent. The court also concluded that the

child’s best interests were served by terminating the father-child relationship and

allowing E.J. to adopt her.

       J.I. promptly appealed to this court. Counsel was assigned to represent him. A

panel considered his appeal without conducting oral argument.

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                                          ANALYSIS

         Assigning error to numerous findings, J.I. argues that the evidence does not

support the determination that he failed to perform his parental duties and, therefore, it

was premature to decide that it was in the child’s best interests to terminate the parental

relationship. We address the parental duties issue before turning to the best interest of the

child.

         Parental Duties

         The father challenges the trial court’s conclusion that he failed to perform parental

duties as well as four related factual findings. The conclusion was based by findings

supported by sufficient evidence.

         The governing statute provides in pertinent part:

         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).

         This statute requires the petitioner to prove by clear, cogent and convincing

evidence that termination is warranted. In re Adoption of McGee, 86 Wn. App. 471, 473,

937 P.2d 622 (1997). The parental fitness determination is a threshold issue that must be

resolved by the trial court before the court may consider the best interest of the child. In


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re H.J.P., 114 Wn.2d 522, 531, 789 P.2d 96 (1990). It is considered a jurisdictional

requirement. Id.; In re Pawling, 101 Wn.2d 392, 400, 679 P.2d 916 (1984).

       In assessing the performance of parental duties, courts look at five factors:

       (1) Express 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 Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969). With these elements in mind,

the court must also examine the parent’s behavior and not merely stated intentions and

desires. McGee, 86 Wn. App. at 480.

       We review the trial court’s factual determinations for substantial evidence. In re

Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). “Substantial evidence” is sufficient

evidence to persuade a fair-minded person of the truth of the declared premise.

Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425,

10 P.3d 417 (2000). Conclusions of law are reviewed de novo. Robel v. Roundup Corp.,

148 Wn.2d 35, 42, 59 P.3d 611 (2002). We defer to the trial court’s credibility

determinations; we will not reweigh evidence even if we would have resolved conflicting

evidence differently. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343

P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225

P.3d 266 (2009). Stated another way, an appellate court is not in a position to find

persuasive evidence that the trier of fact found unpersuasive. Quinn, 153 Wn. App. at

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717. In determining the sufficiency of evidence, an appellate court need only consider

evidence favorable to the prevailing party. Bland v. Mentor, 63 Wn.2d 150, 155, 385

P.2d 727 (1963).

       J.I. contends that he did not exercise visitation due to an earlier threat allegedly

issued to him by the grandfather who was to supervise visitation. J.I. argues that two

findings that suggest the “alleged” threat was “insufficiently substantial” to justify his

failure to exercise visitation are not supported by the evidence. J.I. also makes a similar

argument concerning findings (1) he did not have contact information for the mother’s

father, (2) he did not visit because he was unhappy with the ruling, and (3) the court’s

recognition that many people represent themselves in Yakima County child visitation

actions. We need discuss these matters only briefly because none of these findings was

of particular significance.

       J.I. contends that he was threatened during a phone call, but both the grandfather

and the mother denied the allegation. The trial court did not find that there was a threat,

but only ruled that the alleged threat—“it wouldn’t take an army for him to come after

me”—was not a substantial one. The statement was not directed at the father’s exercise

of visitation and did not amount to a threat of bodily harm. The testimony amply

supported the findings. The other findings are of even less significance. The finding that

the father claimed he did not have contact information for the grandfather was erroneous,

but inconsequential. The finding that J.I. was unhappy with the court’s ruling was well

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supported. J.I. threatened to drop out of the child’s life if the mother went to court and

then did so. Finally, the finding that many people represent themselves in visitation cases

is one within the personal knowledge of the trial judge. It, too, was supported by

substantial evidence.

       These findings were of little moment, however. The essence of the court’s

conclusion that J.I. did not perform his parental duties was overwhelmingly supported by

his lack of involvement in the child’s life. After 2011, there was no physical contact with

the child and only one single telephone call. The remaining communication consisted of

an annual card in the mail. The record is devoid of any showing of love and affection for

the child, concern for the child’s wellbeing, or any efforts the father made to provide

guidance to the child. In short, the Lybbert factors weigh heavily in favor of the court’s

determination that J.I. did not live up to parental obligations.

       Against the failure to parent, J.I. can only argue that he was often unemployed or

employed out of state, leaving him limited opportunities to support the child. However,

even assuming that he provided the maximum child support that he could, he has no

legitimate excuse for otherwise dropping out of the child’s life.

       The court did not err in concluding that the father failed to perform his parental

duties. Clear, cogent, and convincing evidence supported the determination.




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       Best Interests of the Child

       J.I. also argues that the court’s best interests of the child conclusion was premature

because he was a fit parent and also was not supported by the evidence. In light of our

resolution of the first issue, the conclusion was not premature. Accordingly, we consider

J.I.’s challenges to the evidence.

       The best interests of the child standard must be established by clear, cogent, and

convincing evidence. RCW 26.33.120. Because of the high standard of proof, “the

evidence must be more substantial than in the ordinary civil case” determined by the

preponderance of the evidence standard. In re Hall, 99 Wn.2d 842, 849, 664 P.2d 1245

(1983). Whether termination is in the best interest of a child is based on the particular

facts and circumstances of each case. In re Dependency of A.V.D., 62 Wn. App. 562,

572, 815 P.2d 277 (1991).

       Here, J.I. challenges five findings, including two that state the stepfather was “for

all intents and purposes” the child’s father and that it would be traumatic for her to learn

J.I. was her father. Two other challenged findings noted that J.I. paid child support when

it was collected by the State, with one finding indicating that was the only time it was

paid. The other challenged finding stated that J.I. did not visit the child and that there

was no parenting plan prior to September 2010. We will briefly note these findings in

reverse order.



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         The challenge to the visitation finding is based on evidence that J.I. and his brother

did rent a hotel room and meet with mother and child in July 2010. However, the father

did not testify to ever speaking with the child. According to the mother, the father spent

the entire visit trying to get her to reunite with him and may not have even seen the child.

That testimony allowed the court to conclude J.I. did not visit his child during that time

frame.

         The findings related to child support also are supported by the evidence. The

mother did testify that support was received from the State when J.I. was employed.

There was no testimony that J.I. ever paid support voluntarily rather than through the

State’s collection process. Thus, the two challenged findings are supported by the

evidence.

         The two critical findings involve the role of the stepfather in the child’s life and

her attachment to him. The gist of J.I.’s challenge to these two findings is that “father”

means only the biological father. That challenge does not undermine the factual support

for the court’s finding that the stepfather was the father “for all intents and purposes.”

E.J. actively took on the task of raising the child and developed a close relationship with

J.H.-I. The record contains extensive discussion of the stepfather’s involvement in

raising the child. The evidence very amply supported the determination that he was the

father “for all intents and purposes.” He was the only one who stepped up to perform that

role—and he did it well.

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       The other challenged finding is that the child would be traumatized upon learning

that E.J. was not the father. There was evidentiary support for that finding. The mother

testified that it would be traumatic for the child to learn that the stepfather was not the

father and that news would lead to the child losing trust in both J.J. and E.J. The

mother’s testimony supported the factual finding.

       These two findings are at the heart of the trial court’s best interests of the child

ruling. In termination proceedings, courts recognize that stability and mental health are

important for a child’s wellbeing and development. In re Welfare of M.R.H., 145 Wn.

App. 10, 29-30, 188 P.3d 510 (2008). An individual who lives with a child may become

the de facto parent to the extent that individual should be granted legal recognition. Id. at

28. For instance, in M.R.H., the court determined the adoption of two children by their

foster parents was in their best interest. Id. The biological parent had no contact with the

children for over two years and made no substantial effort to regain custody. Id. at 28-29.

Meanwhile, the children were bonded to the foster parents and expert testimony found the

children would experience mental harm if the biological parent retained custody. Id.

       The absence of J.I. from his child’s life was for a much longer period than that in

M.R.H. While J.I. played no meaningful role in the child’s life, E.J. provided significant

parenting to the extent that he was the only father figure known to the child. The child

and stepfather had bonded and it was important to the child’s future development to have

E.J. performing the role of father. As in M.R.H., here the evidence also supported the

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view that it would be psychologically damaging to the child if the biological father

retained parental rights and interceded in the child's life.

       The stepfather was the only father known to the child. Clear, cogent, and

convincing evidence supported the trial court's determination that it was in the child's

best interest for E.J. to assume the legal role of father. The court did not err in making

that determination.

       The judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




       Lawrence-Berr




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