                                                                             FILED 

                                                                          APRIL 28, 2015 

                                                                    In the Office of the Clerk of Court 

                                                                  W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


In re the Adoption of                           )
                                                )         No. 32371-4-111
L.G.S.                                          )
                                                )
A person under the age                          )
of eighteen                                     )
                                                )         UNPUBLISHED OPINION
                                                )
                                                )

          KORSMO, J.     The biological father, R.S., challenges the trial court's termination

of his parental rights in order to facilitate the adoption of his daughter, L.G.S., by her

stepfather. The trial court's determinations that R.S. was an unfit father and that it was in

the best interest ofthe child to terminate the relationship are supported by the record. We

affirm.

                                            FACTS

          L.G.S. was born in January 2007; her mother is N.P. R.S. lived with N.P. and his

daughter for the first eight months of her life, but then moved out of the family home and

has not seen the child since that time. R.S. has been incarcerated continuously since

February 2008, except for a nine day period. He currently is serving a federal sentence

and has a potential release date in August 2015. Stepfather B.P. has known L.G.S. since
No. 32371-4-111
In re the Adoption of L. G.s.


the child was one and has been married to N.P. since May 28, 2010. He holds L.G.S. out

as his daughter and she uses his surname.

       RS. and N.P. entered into a final parenting plan that restricted his residential time

due to his "willful abandonment" of the child and his "refusal to perform parental

functions." Clerk's Papers (CP) at 28. His monthly support obligation is $150. He has

not provided financial support for the child. R.S. has attempted to contact his daughter

by sending letters and cards from prison. The child has not been given the letters because

she believes B.P. is her father and does not know of the existence ofR.S.

       B.P. and N.P. petitioned to terminate R.S.' parental rights and allow B.P. to adopt

L.G.S. The guardian ad litem (GAL) agreed that the relationship should be terminated

because RS. had not had contact with the child since 2007, had not supported the child,

and had not performed any parenting functions. R.S. testified that he loves L.G.S. and

could be a good provider and role model for her; however, he also offered to consent to

the adoption if paid $21 ,600--the same figure he would owe in support from that point in

time until L.G.S. turned 18. Nonetheless, the trial court granted the petition, concluding

that the sporadic efforts at contacting the child did not meet R.S.' parental obligations and

that termination was in the best interests ofL.G.S. In its memorandum opinion, the trial

court noted: "there is no question that [R.S.] has deserted or abandoned" L.G.S. CP at

109.

       RS. then timely appealed to this court.                                                  f
                                                                                                l
                                                                                                j
                                             2                                                  i
                                                                                                i
                                                                                                fI
                                                                                                i
No. 32371-4-III
In re the Adoption ofL. as.


                                        ANALYSIS

       R.S. challenges both the unfitness determination and the conclusion that termination

was in the child's best interest. We address those issues in the stated order.

       Parental Unfitness

       R.S. contends that the trial court applied the incorrect standard in determining that

he was unfit. The record, however, is clear that the court applied the appropriate standard

and its references to R.S. abandoning and deserting his child did not evidence a return to

the former standard for determining parental unfitness.

       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).

       Under this statute, the petitioner must prove by clear, cogent and convincing

evidence that termination is warranted. In re Adoption ofMcGee , 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

re HJ.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).


                                              3

No. 32371-4-111
In re the Adoption ofL. G.s.


        Prior to enactment of the current statute, the legislation used to require a

determination by the trial court that the "parent has deserted or abandoned the child under

circumstances showing a wilful substantial lack of regard for parental obligations" in

order to establish parental unfitness. Former RCW 26.32.056 (1979).1 Because the

memorandum opinion also stated that R.S. had "deserted or abandoned" his child, he

contends that the court erroneously applied the incorrect standard to his case.

        We disagree. The record shows that the court had the proper standard in mind in

reaching its decision. Two paragraphs before the challenged language, the court's

memorandum decision summarized the applicable law as applied to the allegations of the

case:

        The statute requires the Petitioner to show by clear, cogent and convincing
        evidence that 1) [L.G.S.] has been deserted or abandoned (showing parental
        unfitness by Mr. [R.S.] and 2) terminating Mr. [R.S.'] rights would be in
        the best interest of [L.G.S.].

CP at 109.

        This passage illustrates that the trial judge had the current statute in mind while

making his decision. The evidence, dating back to the parenting plan, was that R.S. had

abandoned his daughter. The trial court's use of that same language to describe R.S.'




        1 Repealed by LAWS OF 1984, ch. 155, § 38.



                                               4

No. 32371-4-111
In re the Adoption ofL. G.s.


behavior did not indicate a return to the former statute. It was an appropriate factual

summation of the evidence.

       Abandonment and desertion are not inconsequential facts for finding parental

unfitness, even if they no longer are the primary basis for doing so. A trial judge does not

err in describing a parent's actions in those terms if they fairly state the evidence. Here,

they did so. R.S. had left the family home and had no contact with his daughter for some

months before becoming incarcerated. He made little effort to contact the child after that

point and also made no effort to meet his support obligation. He argued that his

incarceration prevented him from being a parent and that N.P. was frustrating his efforts

to contact L.G.S. However, the trial found that the contact amounted to nothing more

than a single card sent to the child and that R.S.' criminal behavior was something that he

could have controlled.

       The evidence did allow the trial court to determine that he had abandoned and

deserted L.G.S., thus establishing that he had disregarded his parental obligations. The

trial court applied the correct standard to determine parental unfitness.

       Best Interests ofthe Child

       R.S. also argues that the evidence does not support the court's determination that

terminating his relationship with L.G.S. was in her best interests. Substantial evidence

also supported this determination.




                                              5

No. 32371~4-III
In re the Adoption ofL. G.s.


       As noted previously, the best interests of the child standard must be established by

clear, cogent, and convincing evidence. RCW 26.33.120. The court's findings will not

be disturbed on appeal if they are supported by "substantial evidence." In re Sego, 82

Wn.2d 736, 739, 513 P .2d 831 (1973). 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 ofA. V.D., 62 Wn. App. 562,

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

       Here, the court entered the following finding in its memorandum decision:

      As to the best interests of [L.G.S.], the evidence is that Mr. [B.P.] has been
      the father figure to [L.G.S.] since she was less than two years old. They
      have a father-daughter relationship. [L.G.S.] does not have that
      relationship with Mr. [RS.]. IfMr. [R.S.] were to come back into [her] life
      when she is eight and a half, uprooting her familial relationships, her best
      interest would clearly not be served. The experienced GAL has opined it
      would not be in the best interest of [L.G.S.] for the parental relationship
      with Mr. [R.S.] to continue. This Court agrees.

CP at 110.

      This finding is supported by substantial evidence and should not be disturbed.

R.S. has had no contact with L.G.S. since she was ten months old. In contrast, B.P. has

known L.G.S. for the majority of her life and has developed a father-daughter

relationship with her to the extent that she calls him "daddy," uses his surname, and gives


                                             6

No. 32371-4-II1
In re the Adoption ofL. as


birthday and father's day cards to him. R.S. has not provided care or financial support

since 1.G.S. was a baby, while B.P. has contributed to her shelter, food, clothing,

schooling and extracurricular activities.

       The GAL testified that she recommended termination because it was in 1.G.S.'s

best interest. The GAL observed that 1.G.S.' current lifestyle was "like a normal family

on a weekend morning." She was playing with her siblings and referring to B.P. as

"dad." The GAL concluded that even though R.S. expressed love for 1.G.S., it was not

in her best interest for him to refuse consent to adoption by B.P. The GAL report

indicated that R.S. knew nothing of his daughter's education, health, activities or

interests. The GAL was also aware that RS. has not contributed to the child's life

financially, nor had he provided social or religious guidance. He had no part in her life.

       This evidence substantially supports the trial court's best interest finding. In

contrast with her existing family structure, 1.G.S. does not know R.S. and has received

the majority of support and parental guidance from N.P. and B.P. Disturbing these ties at

the age of eight would be disruptive and not in her best interest.

       The evidence amply supported the trial court's determination that it was in the best

interests of1.G.S. to end the parent-child relationship with R.S. and permit her adoption

by B.P. There was no error.

       Affirmed.




                                             7

No. 32371-4-II1
In re the Adoption of1. G.s.


       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: 





                                            8

