                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 2, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

    In re the Adoption of                                            No. 47410-7-II

    H.M.G.1                                                     UNPUBLISHED OPINION

                                  Minor Child.


          LEE, J. — P.P. appeals the superior court’ s grant of summary judgment to K.G., which

terminated P.P.’ s parental rights to their child, H.M.G., and granted C.G.’s ( K.G.’s wife and

H.M.G.’s stepmother) petition to adopt H.M.G. We reverse summary judgment because there is

a genuine issue of material fact as to whether P.P. failed to fulfill her parental duties under

circumstances demonstrating substantial lack of regard for her parental obligations. We also

reverse the adoption because it was based on an improper termination of P.P.’ s parental rights.

                                                 FACTS
A.        PATERNITY ACTION

          P.P. (the mother) and K.G. (the father) are the natural parents of H.M.G., who was born on

May 7, 2007. The mother and father have been involved in a contentious custody battle over

H.M.G. since 2007.

          The father married C.G. (the stepmother) in 2008. H.M.G. has resided with his father and

stepmother since April 2008.




1
    We use initials to maintain the minor’ s confidentiality.
No. 47410-7-II


       In 2009, the mother was convicted of three counts of perjury and one count of bribing a

witness arising from incidences related to the ongoing custody dispute between her and the father.

The mother was incarcerated in early 2010.

       Prior to her incarceration, the mother had supervised visitation with H.M.G. The visitation

supervisor’ s reports detail that the mother brought toys and gifts, appropriately engaged with

H.M.G., and was affectionate and loving. Among other things, the visitation supervisor’ s reports

made the following observations:

       Mom and [ H.M.G.] work on a puzzle. Mom teaches [ H.M.G.] how to put it
       together. She teaches him numbers on the puzzle [ and] how they fit together.
        H.M.G.] responds very well.

Clerk’ s Papers (CP) at 460.

       Mom is attentive and patient; tolerant and uses good age-appropriate explanations.

CP at 453.

       Mom is attentive and energetic and animated. She is interested and allows [H.M.G]
       to lead in play. She is a good teacher and sets good boundaries.

CP at 458.

       Mom communicates very well [ with H.M.G.]. She gets on his level. She is
       instructive, fun [and] interested. [ H.M.G.] responds well to mom.

CP at 461.

       In June 2010, the Thurston County Superior Court entered an amended final parenting plan

and designated the father as H.M.G.’ s primary custodian ( the 2010 parenting plan). The court,




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No. 47410-7-II


relying on the factors outlined in RCW 26.09.191(3),2 prohibited the mother from having contact

with H.M.G. until she was released from prison.3 Specifically, the court found the following

factors existed:

          Neglect or substantial nonperformance of parenting functions.

          A long-term emotional or physical impairment which interferes with the
          performance of parenting functions as defined in RCW 26.09.004. (From previous
          findings)

          The absence or substantial impairment of emotional ties between the parent and
          child.

          The abusive use of conflict by the parent which creates the danger of serious
          damage to the child’s psychological development. ( From previous modification
          action as well as previous findings)

          A parent has withheld from the other parent access to the child for a protracted
          period without good cause. (From previous findings)

CP at 600.4 Further, the court found that

                  The mother shall have no contact with the child until after she is released
          from prison. At such time she may seek to resume limited supervised contact with
          the child. Any contact shall be supervised at all times in the presence of a PhD
          level therapist who is fully familiar with the circumstances of this case; has had
          contact with [the father]; has had contact with the Guardian ad Litem, and who has
          either been agreed to by [the father] or appointed by the court. All costs associated
          with the therapist or visitation shall be paid in advance by the mother. The therapist,
          with knowledge of the situation, may come up with a plan to restore some
          relationship between the child and [ the mother].



2“
   A parent’ s involvement or conduct may have an adverse effect on the child’ s best interests, and
the court may preclude or limit any provision of the parenting plan” based on enumerated statutory
factors. RCW 26.09.191(3) (“ Restrictions in temporary or permanent parenting plans”).

3
 Although the parenting plan prohibited contact, it allowed the mother to send mail to H.M.G.
The father had sole discretion whether to give the mail to H.M.G.

4
    The record does not contain the “ previous findings” or “previous modification action.”


                                                    3
No. 47410-7-II


CP at 600-01.

       While she was incarcerated, the mother sent H.M.G. cards and letters. In November 2010,

the mother was released from prison. In December 2010, the father and stepmother petitioned and

were granted a restraining order against the mother, prohibiting contact with H.M.G., the father,

the stepmother, and the stepmother’ s family.

       Soon after her release, the mother began her efforts to find a Ph.D. to start the reunification

process outlined in the final parenting plan. Between November 2010 and October 2011, the

mother proposed at least six Ph.D. counselors. The father did not agree to any of the proposed

counselors.

B.     First PETITION TO TERMINATE THE MOTHER’ S PARENTAL RIGHTS

       In April 2011, the father and stepmother filed petitions to terminate the mother’ s parental

rights and for the stepmother to adopt H.M.G., citing “ the mother’ s failure to perform parental

duties under circumstances showing a substantial lack of regard for her parental obligations.” In

re Adoption of H.M.G., noted at 184 Wn. App. 1007, 2014 WL 5307965 at * 1. The mother

responded, denying the basis for the termination and opposing the adoption. H.M.G., 2014 WL

5307965 at * 1. The matter was transferred from Thurston County Superior Court to Pierce County

Superior Court.

       In October 2011, the father and stepmother moved to suspend the mother’ s visitation

pending trial. The father and stepmother argued that they were “ trying to prevent [ the mother’ s]

gamesmanship continuing,” noting that since the mother’ s release from prison, “ there were two

full trials” with “ over 60 to 65 motions with multiple motions for reconsideration.” CP at 359,

358. The father and stepmother emphasized the mother’ s “ history with manufacturing evidence,



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No. 47410-7-II


manufacturing declarations, of manufacturing cards and supposed letters, . . . anything from her

with certainly more proof needed than with the normal case.” CP at 367.

       Further, the father and stepmother emphasized that their “ family needs some peace” and

that the stress of ongoing dispute is disruptive. CP at 368. They further argued that H.M.G. “ is

not bonded with [the mother]. [ H.M.G.] does not have any idea who she is.” CP at 359. The trial

court responded that it “would have to hear from the guardian ad litem on that” but that the record

lacked a guardian recommendation. CP at 359. Counsel for the father and stepmother indicated

that there was a guardian ad litem in the “ first trial,” but the guardian was dismissed. CP at 359.

       The trial court found that

       there is a parenting plan that gives her some visitation rights. She has not been able
       to complete those or exercise any visitation, but there’ s only two months remaining.
       I’m not going to suspend visitation. I’m going to deny the motion because I think
       you’ re really asking me, in essence, really to prejudge the case.

CP at 368.

C.     DISMISSAL OF FIRST PETITION       TO   TERMINATE   THE   MOTHER’ S PARENTAL RIGHTS       AND
       REUNIFICATION

       In November 2011, the father and stepmother moved to voluntarily dismiss the termination

action “ given that [ the mother] did indicate that she was willing to take steps to comply with the

parenting plan.”   CP at 375. In a hearing regarding their motion to dismiss, the father and

stepmother noted that if the mother “ complies with the parenting plan, there is a chance that she

could see her [ child].” CP at 382. The trial court dismissed the petitions without prejudice to

allow the mother time to address her parental deficiencies.

       In February 2012, the mother moved to appoint another Ph.D. counselor, Dr. Tye Hunter.

The father and stepmother were not present at the hearing on the motion, although the day before



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No. 47410-7-II


the hearing, their attorney told the court clerk that she would be in another court. The court

reviewed Dr. Hunter’ s credentials and granted the mother’ s motion. The superior court ordered

that the mother be able to start the process of establishing contact with H.M.G.

         On March 9, 2012, the father and stepmother sought to vacate the February order allowing

the mother to establish contact with H.M.G. The superior court entered an order denying the

request, and found that further delay was unreasonable and the intent of the 2010 parenting plan

         was that if [the mother] followed the framework set forth in the parenting plan and
         had intervention by the psychologist she could start this process of visitation and/or
         reunification with her child. I think that’ s the intent of the parenting plan that was
         entered.
                 I think her step was reasonable. We did make her go through the extra hoop
         of providing more information about this [psychologist].

CP at 406-07. The court ordered that Dr. Hunter “ shall contact [ the father and stepmother’ s

counsel] as per previous order [and] set forth a proposed plan for reunification between [the mother

and H.M.G.]. No visitation will take place prior to further court review and order.” CP at 635.

D.       THE SECOND PETITION TO TERMINATE THE MOTHER’ S PARENTAL RIGHTS AND APPEAL

         Also on March 9, 2012, the father and stepmother personally served the mother with an

amended summons and petitions for termination and adoption. 5 H.M.G., 2014 WL 5307965, at

    1. The same cause number was used by the petitioners, even though the matter had been

previously dismissed. H.M.G., 2014 WL 5307965, at * 1. The mother did not respond. H.M.G.,

2014 WL 5307965, at * 1.




5
 The amended summons and petitions for termination and adoption were filed with the court April
3, 2012.



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No. 47410-7-II


          On April 3, 2012, the father and stepmother moved for an order of default against the

mother.6 H.M.G., 2014 WL 5307965, at * 1. On April 5, 2012, a superior court commissioner

entered a default order terminating the mother’ s parental rights. H.M.G., 2014 WL 5307965, at

    1.

          The mother moved to vacate the default order, alleging that she gave the responsive

documents to her father to mail, but that her father forgot to mail them due to the death of his dog

on the same day. H.M.G., 2014 WL 5307965, at * 2. The court denied her motion to vacate the

default order. H.M.G., 2014 WL 5307965, at * 2. The mother then filed a CR 60 motion for relief

from the order, which was also denied. H.M.G., 2014 WL 5307965, at * 2. The mother appealed

the default order. H.M.G., 2014 WL 5307965, at * 2.

          Division Three of this court reversed the default order. H.M.G., 2014 WL 5307965, at * 3.

The court held that the superior court lacked the authority to enter the termination and adoption

orders because the father and stepmother failed to give the mother notice of the default order.

H.M.G., 2014 WL 5307965, at * 3.

E.        REVERSAL, REMAND, AND SUMMARY JUDGMENT

          On remand from Division Three, the mother answered the father and stepmother’ s

amended petition to terminate her parental rights, denying the basis for termination and opposing

the adoption. The father and stepmother moved for summary judgment, arguing that the mother

    has failed to perform parental duties under circumstances showing a substantial lack of regard for

her parental obligations.” CP at 701. In support, the father and stepmother noted that the mother



6
  There is no indication that the father and stepmother worked with the counselor to develop a
reunification plan before moving for a default order terminating the mother’ s parental rights.


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No. 47410-7-II


has had no contact with H.M.G. for five years, had been convicted of multiple felonies, and that

the 2010 parenting plan was “ clear, cogent, and convincing evidence that obviously there are

parental issues here between the mother and the child.” 7 Verbatim Report of Proceedings ( VRP)

Feb. 27, 2015) at 6-7.

       In opposition to the summary judgment motion, the mother showed that she was current

on her child support payments. She argued that she has demonstrated love and affection for

H.M.G. and has been working to satisfy the court-ordered conditions to reunification. Further, the

mother maintained that her lack of contact with H.M.G. was a result of the father and stepmother’ s

actions.

       The superior court granted the father and stepmother’ s motion for summary judgment,

terminating the mother’ s parental rights and granting the petition for adoption.     The mother

appeals.

                                           ANALYSIS

       The mother argues that the superior court erred by granting the father and stepmother’ s

motion for summary judgment, which terminated the mother’ s parental rights.8 Further, the

mother argues that the superior court erred by entering the decree of adoption and related findings




7
 The father and stepmother repeatedly reference the mother’ s felony convictions and history of
prostitution. Beyond the mother’ s convictions referenced above, the record contains no evidence
of other convictions or prostitution.

8
 It does not appear that a termination and adoption under RCW 26.33.120 has proceeded through
summary judgment in Washington before. While this court’ s decision does not foreclose the
possibility that some circumstances may present in the future wherein summary judgment may be
an appropriate proceeding to terminate parental rights, we hold that such circumstances are not
present in this case.


                                                8
No. 47410-7-II


of fact “because [the decree and findings] were based on the faulty order terminating [the mother’ s]

parental rights.” Br. of Appellant at 2. We agree.

A.     STANDARD OF REVIEW

       We review a superior court’ s decision to grant summary judgment de novo. Lyons v. U.S.

Bank NA, 181 Wn.2d 775, 783, 336 P.3d 1142 ( 2014). When reviewing summary judgment, a

  s] uperior court[’ s] findings of fact and conclusions of law are superfluous.” Fabre v. Town of

Ruston, 180 Wn. App. 150, 158, 321 P.3d 1208 (2014); accord CR 52(a)( 5).

       Summary judgment is appropriate where there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. CR 56(c). A fact is material if it

affects the outcome of the litigation. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164,

273 P.3d 965 (2012). We review “ the order of summary judgment de novo, engaging in the same

inquiry as the trial court, which is to consider all facts submitted in the record and reasonable

inferences in a light most favorable to the nonmoving party.” Fraternal Order of Eagles, Tenino

Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 253, 59 P.3d 655

2002), cert. denied, 538 U.S. 1057 ( 2003). “ The trial court does not weigh evidence or assess

witness credibility. Neither do we do so on appeal.” Barker v. Advanced Silicon Materials, LLC,

131 Wn. App. 616, 624, 128 P.3d 633, review denied, 158 Wn.2d 1015 (2006).

B.     CHAPTER 26.33 RCW—TERMINATION OF PARENTAL RIGHTS THROUGH ADOPTION

       1.      Legal Principles

       Natural parents possess a fundamental liberty interest, protected by the Fourteenth

Amendment, in the care, custody, and management of their children. In re H.J.P., 114 Wn.2d 522,

526, 789 P.2d 96 ( 1990). However, parental rights have limitations. RCW 26.33.120 governs



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No. 47410-7-II


termination of parental rights in the context of adoption proceedings. In re Adoption of McGee,

86 Wn. App. 471, 473, 937 P.2d 622, review denied, 133 Wn.2d 1014 (1997).

        T]he 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); McGee, 86 Wn. App. at 473. Importantly, “[ t]his standard does not call for a

balancing of the factors.” McGee, 86 Wn. App. at 474. The court must resolve “[ t]he threshold

question” [ of] “‘ whether the parent has failed to perform parental duties under circumstances

showing a substantial lack of regard for his or her parental obligations’” before considering the

best interests of the child. McGee, 86 Wn. App. at 474 (quoting H.J.P., 114 Wn.2d at 531).

       Under RCW 26.33.120, “[ p]arental unfitness is established by showing 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 531 (quoting

RCW 26.33.120).

        The Washington State Supreme Court] established that parental obligations consist
       of the following 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.

H.J.P., 114 Wn.2d at 531 (quoting In re Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969)).

       The petitioners— here, the father and stepmother— have the burden to demonstrate that

termination is warranted. McGee, 86 Wn. App. at 473. Therefore, on summary judgment, the




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No. 47410-7-II


father and stepmother are required to prove that there is no genuine issue of material fact as to

whether (1) the mother has “ failed to perform parental duties” ( 2) “ under circumstances showing

a substantial lack of regard for [her] parental obligations.” McGee, 86 Wn. App. at 474 (quoting

H.J.P., 114 Wn.2d at 532).

       2.      The Mother’ s Parental Duties

       The mother contends that there are genuine issues of material fact as to whether she failed

to perform her parental duties under circumstances that demonstrate a substantial lack of regard

for her obligations. We agree.

       The record demonstrates a question of material fact regarding whether the mother failed to

fulfill her parental duties to H.M.G. At summary judgment, the father argued that the mother has

failed to send H.M.G. cards or mail since her arrest in 2009 as support for his argument that she

has failed to perform parental duties. However, the mother disputes that fact, arguing that while

incarcerated, she sent letters, drawings, cards, and a birthday gift to H.M.G. through her sister and

brother-in-law. Further, the mother’ s brother-in-law filed a declaration supporting the mother’ s

assertion that she sent H.M.G. letters, cards and pictures while incarcerated. And the record

contains documentation of letters and cards sent to H.M.G. Moreover, the mother presented

evidence that she expressed personal concern over H.M.G.’ s well-being, and love and affection

when she participated in supervised visitation. CP at 436-61, 458 (discussing loving interactions,

including the following: “ Mom is attentive and energetic and animated. She is interested and

allows [ H.M.G] to take lead in play.      She is a good teacher and sets good boundaries.”).

Furthermore, the parties agree that the mother was current on her child support payments when




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No. 47410-7-II


her rights were terminated, which is some evidence of performing parental duties. 9 Thus, the

record contains evidence that mother expressed love and affection for H.M.G. and provided for

his well-being, creating a genuine question of material fact as to whether the mother failed to

perform her parental duties.

       3.      Circumstances Showing a Substantial Lack of Regard for Parental Obligations

       Here, even assuming without deciding that the mother failed to fulfill her parental duties,

there is a genuine issue of material fact as to whether she did so “ under circumstances showing a

substantial lack of regard for her obligations.”       RCW 26.33.120. H.J.P. and McGee provide

guidance in our determination of when a parent has failed to perform duties under circumstances

showing a substantial lack of regard for parental obligations.

       In H.J.P., the court affirmed the termination of the father’ s parental rights, holding the trial

court’ s finding that the father failed to perform his parental duties under circumstances showing

substantial lack of regard for his parental obligations was supported by clear, cogent, and

convincing evidence. 114 Wn.2d at 533. The trial court found that the father had the ability to

pay child support but failed to do so, and had “ not communicated in a way that effectively,

persistently, or consistently demonstrated his love and affection for [ the child].”       H.J.P., 114

Wn.2d at 532 (alteration in original).

       In McGee, the father wanted to parent his infant-child, but the mother sought to terminate

his parental rights. 86 Wn. App. at 478. The court held that the record demonstrated “ only one



9
 The father and stepmother appear to dispute the circumstances in which the mother paid support;
but, they do not offer any argument that the mother was not current, or offer any authority
suggesting that the circumstances render her payments inadequate.



                                                  12
No. 47410-7-II


conclusion: [ The father] failed to perform his parental duties under circumstances showing a

substantial lack of regard for his parental obligations.” McGee, 86 Wn. App. at 480. The record

demonstrated that the father had threatened to kill the mother, he “ pointed a pistol at [ the mother]

on more than one occasion,” and “[ t]wice, while sober, [ the father] forced [the mother] to lie down

on the floor of the shower while he urinated upon her.” McGee, 86 Wn. App. at 474. And, the

record demonstrated that the father had “ severe psychological problems,” including “ a thought

disorder.”   McGee, 86 Wn. App. at 474. The father refused psychiatric treatment, had “ an

obsessive need to control,” and was “ unable to physically nurture a child.” McGee, 86 Wn. App.

at 474. The record also demonstrated that the father “ is a batterer who has inspired great fear” in

both of his children’ s mothers. McGee, 86 Wn. App. at 474.

       Here, while the record is replete with evidence that the mother and the father have had a

tumultuous relationship, it also indicates that the mother has persistently made efforts to meet the

court-ordered requirements for reunification, and resisted the father and stepmother’ s efforts to

terminate her parental rights over the years. And until her parental rights were terminated, the

mother was current on child support. Although the father and stepmother argue that the mother’ s

efforts are “ gamesmanship” and an attempt to hurt the father, taking the evidence in the light most

favorable to the mother, a reasonable fact finder could infer that the mother actively participated

in the court proceedings in an effort to fulfill her parental duties. CP at 244. The mother has been

an active participant in the proceedings, accepted responsibility for her past behavior, maintained

that she wanted contact with H.M.G.

       Furthermore, the father and stepmother’ s arguments do not address whether the mother’ s

lack of visitation occurred under circumstances demonstrating a substantial lack of regard for her



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No. 47410-7-II


parental obligations. Instead, the father and stepmother repeatedly rely on the 2010 parenting plan,

arguing that it barred visitation and is therefore evidence that the mother has failed to fulfill her

parental duties under circumstances demonstrating substantial lack of regard for her parental

obligations. The father and stepmother also argued that “by 2012 we had a final order in Thurston

County with absolutely no visitation, and we had a final order in Pierce County with absolutely no

visitation. Again, I would submit that that is clear, cogent, and convincing evidence that obviously

there are parental issues here between the mother and child.” VRP (Feb. 27, 2015) at 6-7.

       The father and stepmother mischaracterize both the 2010 parenting plan and the 2012 order

denying their motion to vacate. While it is accurate that both of those orders restricted the mother’ s

visitation based on the court’ s approval, both of those orders provided a process for the mother to

obtain visitation. And while the orders may be evidence of “parental issues,” RCW 26.33.120(1)

requires more than a demonstration of “issues” before terminating parental rights.

       Here, the record demonstrates that the mother’ s absence from regular visitation was not

under circumstances demonstrating substantial lack of regard for her parental obligations. Rather,

her lack of contact resulted from the father’ s challenges to her proposed visitation supervisors, her

incarceration, and the improper termination of her parental rights and subsequent appeal process.

       By granting summary judgment, the superior court necessarily had to weigh the credibility

of father and stepmother’ s declarations more heavily than the mother’ s, which is improper on

summary judgment. See Barker, 131 Wn. App. at 624; Am. Express Centurion Bank v. Stratman,

172 Wn. App. 667, 676, 292 P.3d 128 (2012). The record demonstrates disputed issues of fact

regarding the basic issues of termination. For example, the father argued that the mother has failed

to perform any parental duties. The mother, however, brought forth evidence showing that she has



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No. 47410-7-II


consistently demonstrated love and affection for H.M.G. by sending pictures and mail to H.M.G.

while she was incarcerated, and by making efforts to comply with the visitation requirements.

Additionally, the mother brought forth evidence showing that she has provided for his well-being

through her child support payments. And the mother presented evidence demonstrating that when

she had supervised visitation with H.M.G. prior to her incarceration, she was loving, affectionate,

and concerned over the health and well-being of H.M.G.

       Thus, the record shows that genuine issues of material fact exists as to whether the mother

failed to perform her parental duties under circumstances demonstrating a substantial lack of

regard for her parental obligations. Accordingly, summary judgment terminating the mother’ s

parental rights was improper.10

C.     ADOPTION

       The mother argues that this court should reverse the adoption because it was based on an

improper termination of her parental rights. We agree.

       Therefore, we reverse the superior court’ s summary judgment order terminating P.P.’ s

parental rights to her child, H.M.G. We also reverse the granting of C.G.’ s petition to adopt




10
   The best interests of the child are not reached unless the court finds that the nonconsenting
parent is shown to have failed to perform parental duties under circumstances showing a
substantial lack of regard for parental obligations. McGee, 86 Wn. App. at 474. Here, a genuine
issue of material fact exists as to whether the mother has failed to perform her parental duties
under circumstances showing a substantial lack of regard for her parental obligations. Therefore,
we need not reach the best interests of the child.


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No. 47410-7-II


H.M.G. based on an improper termination of P.P.’ s parental rights.

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

Washington Appellate reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                                      Lee, J.
 We concur:



                   Worswick, J.




                  Johanson, C.J.




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