Appeal from Superior Court of Whatcom County. Docket No: 94-5-00195-4. Date filed: 09/27/95. Judge signing: Hon. Michael F. Moynihan.
Petition for Review Denied October 7, 1997,
Authored by Mary K. Becker. Concurring: Walter E. Webster, C. Kenneth Grosse.
The opinion of the court was delivered by: Becker
BECKER, J. -- Infant McGee's prospective adoptive parents and birth mother appeal the trial court's refusal to terminate the parental rights of the birth father. The trial court concluded the birth father was an unfit parent, but had not abandoned his parental duties. Because the court's unchallenged findings amply establish the father's unfitness to parent under the operative language of the statute, and there is no additional requirement to show abandonment or intent to abandon, we reverse and remand for orders permitting the adoption to go forward.
Infant McGee was born August, 1994, to unmarried parents. The baby's mother, Toni McGee, at one time lived with the father, Lane Morrison. Upon finding that she was pregnant, Toni McGee made plans to have the baby placed for adoption. After birth, the baby was placed with the Hess family. They petitioned for the termination of Lane Morrison's parental rights. Morrison resisted, and obtained an order permitting him to have weekly one-hour supervised visitation with the baby. The case proceeded to a five-day trial in June, 1995.
RCW 26.33.120 is the statute governing termination of parental rights in the context of a petition for adoption. It requires petitioners to prove with clear, cogent, and convincing evidence that termination is warranted:
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. *fn1
This standard does not call for a balancing of the factors. The threshold question is "whether the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations." This issue must be resolved by the court before it may consider the best interests of the child. *fn2
The trial court made the following findings of fact, all of them undisputed on appeal. During the time Toni McGee lived with Lane Morrison, she endured mental, emotional and physical abuse. Morrison pointed a pistol at her on more than one occasion. Twice, while sober, he forced her to lie down on the floor of the shower while he urinated upon her. Toni McGee moved out. Her contacts with Morrison after that were occasional. It was during one such contact she became pregnant with Infant McGee. Because of threats she had received from Morrison, Toni McGee obtained a no contact order. Morrison violated the order and threatened to kill Toni McGee. He refused to discuss single co-parenting with her and told her, "you will not live to raise this child without me."
According to expert testimony found credible by the court, Morrison has severe psychological problems. He is unable to physically nurture a child; he has an obsessive need to control; and he has a thought disorder and a dependent personality disorder. He is unaccepting of psychiatric treatment. He is a batterer who has inspired great fear in the child's mother, Toni McGee, and in his other child's mother, Tami Hohmann.
During the time Morrison lived with Tami Hohmann, he was a regular user of cocaine and a "low level" drug dealer. While living with Toni McGee, he continued a pattern of heavy drinking, use of marijuana, and domestic violence.
After he and the mother of his first child separated, Morrison made few child support payments. He did not pursue visitation with that child because he did not want to pay a large amount of back child support. He threatened to kill Tami Hohmann and her parents. Hohman did not seek child support enforcement because of her fear of Morrison.
After a lengthy oral opinion that occupies 26 pages of transcript, the court entered 61 findings of fact. Only three findings of fact reflect favorably on Morrison's parental fitness:
2. The Court finds that Lane Morrison initially expressed pleasure when he discovered that Toni McGee ...