FILED AUGUST 14, 2018 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IN THE MATTER OF THE ADOPTION ) OF ) No. 35332-0-III ) J. L.-R. ) UNPUBLISHED OPINION )
FEARING, J. — We address familiar questions surrounding RCW 26.33.120, the
adoption statute that allows termination of a parent’s rights to the child because of
disregard for parental obligations. Because substantial evidence supports the trial court’s
findings and conclusions supporting the termination of appellant José Leon-Rivera’s
paternal rights and because precedent upholds the constitutionality of RCW 26.33.120,
we affirm the trial court’s order of termination.
FACTS
In 2009, José Leon-Rivera met Janelle Guzman, and the couple thereafter
commenced cohabiting together. Guzman then had two children, we fictitiously call
Jasmine and Esther, from a previous marriage. Janelle Guzman’s daughter Esther suffers
from celiac disease, a gluten intolerance, and adheres to a particular diet to prevent No. 35332-0-III In re Adoption of J.L.-R.
symptoms from the disease. Guzman purchases special food for Esther.
On an unidentified day during the summer of 2010, José Leon-Rivera returned
home drunk, and Guzman expressed dismay because she did not wish Leon-Rivera to
drink or be intoxicated in front of her children. Guzman directed Leon-Rivera to leave
the residence. In response, Leon-Rivera threw a shovel at her, thereby cutting Guzman’s
leg.
On July 25, 2011, Janelle Guzman bore José Leon-Rivera a son, who we
pseudonymously name Juan. After Juan’s birth, Leon-Rivera cared for Janelle’s two
older children and Juan two to three days a week for up to three hours at a time while
Guzman worked. Guzman worked at McDonald’s and Jack-in-the-Box. Leon-Rivera
worked for Specialty Floor Care at night as a custodian.
Janelle Guzman concluded that she could not depend on José Leon-Rivera with
childcare. Leon-Rivera constantly phoned Guzman while he watched the children.
During the calls, Leon-Rivera asked inane questions, such as, “[h]ow do you make a
bottle?” Report of Proceedings (RP) at 123. While Leon-Rivera supervised Esther, he
failed to feed Esther the diet needed for celiac disease, a failure that caused Esther
stomach distress. The stomach ailment subsided when Leon-Rivera ended his occasional
care for Esther. Lisa Rodriguez, Janelle Guzman’s close friend and relative, observed
Leon-Rivera bicker with Jasmine and Esther as if Leon-Rivera was another child.
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Since José Leon-Rivera worked nights, he slept during the day. On one occasion,
Lisa Rodriguez retrieved Juan from daycare because Juan was sick. When Leon-Rivera
later fetched Juan from Rodriguez’s home, he did not ask about Juan’s wellbeing, the
nature of Juan’s illness, or any medications taken or needed.
The romantic relationship between José Leon-Rivera and Janelle Guzman
deteriorated after Juan’s birth. During the summer of 2012, Guzman directed Leon-
Rivera, after an argument, to leave the home. Leon-Rivera departed, but not before he
slashed two of Guzman’s car tires.
In January 2013, Janelle Guzman discovered on Facebook that José Leon-Rivera
had a new girlfriend who was expecting his child. Leon-Rivera’s girlfriend gave birth to
a daughter, Betty. Betty is also a pseudonym. Leon-Rivera thereafter cared for Betty
because of her mother’s incarceration.
Janelle Guzman informed José Leon-Rivera that she would not pursue child
support if Leon-Rivera provided $100 a month and a box of diapers. Guzman also told
Leon-Rivera that he could see Juan once a week because she believed it important for
Leon-Rivera to be present in Juan’s life. Between the summer of 2012 and March 2013,
Leon-Rivera made one $100 payment, once bought diapers, and saw Juan on three
occasions.
On an unidentified day in March 2013, Janelle Guzman met José Leon-Rivera to
retrieve Juan. Leon-Rivera arrived an hour late, and Guzman confronted him. In
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retaliation, Leon-Rivera flung Juan at Guzman and threw Juan’s car seat on the ground.
Guzman gave Juan a bath later that day and noticed bruising on Juan’s ribs. Guzman did
not suspect that Leon-Rivera hurt Juan. Nevertheless, she worried that Leon-Rivera did
not know how Juan bruised himself.
At some unidentified date in the spring 2013, Janelle Guzman started to date
coworker José Armando Guzman. Beginning in April 2013, José Leon-Rivera never
visited Juan and never sought to enforce his parenting rights. Lisa Rodriguez texted
Leon-Rivera and attempted to arrange visitation, but Leon-Rivera never responded. In
April, Janelle Guzman moved in with José Armando Guzman after the couple purchased
a home together. In July 2013, an unnamed female, on behalf of Leon-Rivera, delivered
a present to Juan on his second birthday, but Janelle Guzman refused the gift.
Early in 2014, nine months after he had last seen Juan, José Leon-Rivera sent a
representative to Janelle Guzman’s residence to request a parenting plan. A lawyer
informed Guzman that Leon-Rivera did not properly file any legal pleadings, so Guzman
prepared, but did not file, a response. Leon-Rivera apparently filed some pleadings,
however, because Guzman received a letter requesting mandatory mediation. She
attended a mediation session. The mediation did not result in a resolution, and the clerk’s
office later dismissed the proceeding for want of prosecution.
Janelle Guzman and José Armando Guzman wed on Valentine’s Day 2015. The
couple have a daughter together. Guzman and her older daughters, Esther and Jasmine,
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know that José Armando Guzman is not Juan’s biological father, but, nevertheless, have
not informed Juan that Leon-Rivera is his natural father. Janelle Guzman believes
withholding this information from Juan serves his best interest. According to Janelle
Guzman, Juan believes José Armando Guzman to be his father. According to Lisa
Rodriguez, Juan prefers to be with José Armando Guzman over Janelle. According to
Rodriguez, Juan follows José Armando Guzman wherever the latter goes.
In June 2015, José Leon-Rivera started work as a warehouseman at the Jack Frost
Fruit Company. When the Division of Child Support garnished Leon-Rivera’s wages at
the fruit firm for payment of child support for Juan, he quit working.
José Leon-Rivera later lived with his next employer and his employer’s girlfriend,
Ramona Coronado Lopez. Lopez grew concerned about how Leon-Rivera treated his
daughter, Betty. Leon-Rivera ignored the parenting advice Lopez proffered. Lopez once
overheard Leon-Rivera, in the presence of Betty, threaten to decapitate Betty’s
Chihuahua and throw its head in the garbage. Lopez reported Leon-Rivera’s conduct to
Child Protective Services (CPS). On learning of the report, Leon-Rivera told Lopez that
she would “regret” her conduct if CPS removed Betty from Leon-Rivera’s custody. José
Leon-Rivera requested a lower paycheck from Ramona Lopez so that the court would not
require him to pay Janelle Guzman child support.
By the time of the trial on Janelle Guzman’s petition to terminate parental rights,
José Leon-Rivera had, as recommended by a guardian ad litem, obtained car insurance
5 No. 35332-0-III In re Adoption of J.L.-R.
and had registered for a parenting class. Nevertheless, Leon-Rivera had missed two class
sessions because of his work schedule.
Juan, the young subject of this adoption proceeding, displays traits on the autism
spectrum. Guzman testified to her son’s behavioral characteristics:
He doesn’t adjust well to change. If you tell him, “we’re having dinner at three o’clock,” you are having dinner at three o’clock, or he goes into total meltdown, because “You said.” He doesn’t do well with talking to new people. Even for the first six months that he was in preschool he would not even talk to his teacher. After repeated conversations of, “it’s okay at school if you talk to the teacher.” He doesn’t make new friends well, because he won’t talk to them, kind of sits back and just watches.
RP at 140.
PROCEDURE
On April 14, 2015, Janelle Guzman filed a petition for termination of the parent-
child relationship between José Leon-Rivera and Juan. Guzman sought the termination
so that José Armando Guzman could adopt Juan. Juan was then three years old. José
Leon-Rivera had not seen Juan for two years.
The trial court appointed Terry Lockett, a Department of Social and Health
Services (DSHS) guardian ad litem, as an expert witness. In August 2016, Lockett filed a
report with her recommendations. She did not recommend termination of José Leon-
Rivera’s parental rights. Lockett suggested that Leon-Rivera participate in childcare
training, and, if he failed to complete such training, the court should terminate his
parental rights. Lockett listed six training courses for Leon-Rivera to complete. Lockett
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also proposed that Leon-Rivera not have any contact with Juan until Leon-Rivera
completed the courses. Lockett believed the services could be completed within six
months. Finally, Lockett advised that Leon-Rivera obtain car insurance.
During trial on the petition to terminate José Leon-Rivera’s parental rights, Terry
Lockett could not initially answer whether or not José Leon-Rivera currently was a fit
parent for Juan. Lockett stated:
I think that as far as with—my answer to that would be—its complex. You’ve got a child that’s been away from him for years. He may or may not have special needs. The mom believes he probably does have special needs. So that’s added into it. He doesn’t know that his—has a father. That’s added into it. And he’s got a father that’s in need of—some assistance. And I think he needs that assistance even if there wasn’t—as far as with the CPS—unfounded reports or concerns about his parenting, I think he—needs assistance anyway just based on the fact of the dynamics of this case. So,—to confine it to whether he’s fit or unfit, I think that, you know, it’s—I—I don’t think he’s unfit parent to the daughter that he has. It’s a big question mark, enough to keep me from saying no contact right now, about whether he’d be fit to parent this child or not. I don’t know.
RP at 320-21.
When questioned further, Terry Lockett acknowledged that Leon-Rivera was not
fit to parent Juan. At the same time, Lockett conceded that Leon-Rivera had been the
sole caretaker of his daughter, Betty, for most of her life and that he performed as a fit
parent to Betty.
The trial court made the following findings by clear, cogent, and convincing
evidence:
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15. When Ms. Guzman did leave the children with Mr. Leon- Rivera, he would contact her with basic childcare questions such as ‘how to make a bottle.’ 16. The relationship between Mr. Leon-Rivera and Ms. Guzman was fraught with problems. They would argue/fight and break up frequently, at least toward the end of the relationship. During an argument in 2010, Mr. Leon-Rivera was intoxicated and threw a shovel at Ms. Guzman cutting her leg. Following an argument in the summer of 2012, Mr. Leon-Rivera slashed two tires on Ms. Guzman’s vehicle. .... 49. Ms. Lockett testified that Mr. Leon-Rivera currently is not a fit parent for [Juan]. .... 59. Mr. Leon-Rivera is withholding consent to adoption contrary to the child’s best interest.
Clerk’s Papers (CP) at 203-11. The trial court entered the following conclusions of law:
3. Mr. Leon-Rivera has failed to perform parental duties under circumstances showing a substantial lack of regard for his parental obligations. 4. Mr. Leon-Rivera is withholding consent to adoption contrary to the best interest of said [Juan]. 5. It is in the child’s best interest that Mr. Leon-Rivera’s parental rights be terminated and [Juan] be made free to be adopted by JOSE A. GUZMAN.
CP at 211-12.
LAW AND ANALYSIS
Findings of Fact
José Leon-Rivera assigns error to factual findings numbered 15, 16, 49, and 59.
We find no error in those findings.
Our controlling statute, RCW 26.33.120 pronounces:
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(1) Except in the case of an Indian child and his or her parent, 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.
Accordingly, the adoption code requires that “clear, cogent, and convincing evidence” be
presented to sustain an order terminating parental rights. In re H.J.P., 114 Wn.2d 522,
532, 789 P.2d 96 (1990). Under this standard of proof, the ultimate fact must be shown
by evidence to be “highly probable.” In re Pawling, 101 Wn.2d 392, 399, 679 P.2d 916
(1984). A trial court’s factual findings will not be disturbed on appeal if they are
supported by substantial evidence that satisfies the “highly probable” test. In re Welfare
of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). This court is not entitled to reweigh
the credibility of witnesses. In re Welfare of Sego, 82 Wn.2d at 739-40.
Finding of fact 15 reads that, when Janelle Guzman left the children with José
Leon-Rivera, he contacted her with basic childcare questions such as preparing a bottle.
Evidence renders this finding highly probable because Janelle Guzman testified that
Leon-Rivera called her and asked how to make a bottle. Lisa Rodriguez also testified
that she overheard Guzman telling Leon-Rivera of the location of the label on the child’s
bottle. During his trial testimony, Leon-Rivera denied asking about the bottle, but the
court found he lacked credibility.
9 No. 35332-0-III In re Adoption of J.L.-R.
Finding of fact 16 reads that the relationship between José Leon-Rivera and
Janelle Guzman was fraught with problems, and the finding describes violence between
the two. Testimony rendered this finding highly probable. Janelle Guzman testified that,
after an argument with Leon-Rivera, he threw a shovel at her. Guzman also testified to
Leon-Rivera slashing her tires.
Finding of fact 49 reads that Terry Lockett testified that José Leon-Rivera
currently is not a fit parent for Juan. Admittedly, Terry Lockett was initially unwilling to
answer whether José Leon-Rivera was fit to parent Juan. Nonetheless, when pressed, she
stated Leon-Rivera was unfit to parent Juan given the circumstances and Juan’s
behavioral problems. Thus, the undisputed testimony shows that Lockett in the end
reached this conclusion.
Finding of fact 59 declares that José Leon-Rivera is withholding consent to
adoption contrary to the child’s best interest. The undisputed facts established that José
Leon-Rivera refused to consent to José Armando Guzman’s adoption of Juan. The facts
also showed that Leon-Rivera has not seen Juan since March 2013. Leon-Rivera did not
pursue a parenting plan with the court. Leon-Rivera took affirmative steps to shirk his
responsibility to pay support for Juan. Juan has developed a father-son relationship with
José Armando Guzman. Guzman is the only man Juan considers as his father. Evidence
rendered finding of fact 59 highly probable.
10 No. 35332-0-III In re Adoption of J.L.-R.
Statutory Grounds for Termination
The trial court concluded that José Leon-Rivera failed to perform his parental
duties under circumstances showing a substantial lack of regard for his parental
obligations. Leon-Rivera challenges this ruling.
We have already quoted RCW 26.33.120(1), a provision of the adoption code that
allows termination of a parent’s rights, to afford another person the opportunity to adopt
the child, when the parent “has failed to perform parental duties under circumstances
showing a substantial lack of regard for his or her parental obligations.” Based on this
statute, Washington courts have determined the following to be the minimum elements of
parental obligation:
(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 Adoption of Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969).
Leon-Rivera admits he has parenting deficiencies but still deems himself a fit
parent. Leon-Rivera claims Janelle Guzman interfered with his ability to perform
parental obligations because of anger resulting from him impregnating another woman.
Leon-Rivera also attributes his failure to work out a parenting plan to his ignorance of the
United States legal system.
11 No. 35332-0-III In re Adoption of J.L.-R.
The record demonstrates that José Leon-Rivera took little interest in parenting or
showing affection toward Juan. Leon-Rivera attempted to circumvent his requirement to
pay child support and did not work with Janelle Guzman when she attempted to arrange a
visitation schedule with him. Leon-Rivera did not undergo the required services Terry
Lockett suggested he complete. Based on testimony of Lisa Rodriguez and Janelle
Guzman, Juan enjoyed a stable home with his mother, half-sisters, and a respectable
father figure in José Armando Guzman. Coupled with Juan’s behavioral issues and
Juan’s belief that José Armando Guzman is his biological father, José Leon-Rivera
withheld adoption contrary to the best interest of Juan. The record supports the trial
court’s conclusion that Leon-Rivera neglected his parental duties under circumstances
showing a substantial lack of regard for his parental obligations.
In re H.J.P., 114 Wn.2d 522 (1990) bolsters our conclusion. The state Supreme
Court affirmed the termination of the father’s parental rights because of his lack of
contact with the child and his failure to pay child support.
Due Process
José Leon-Rivera attacks RCW 26.33.120(1) on constitutional grounds. He argues
that the statute violates his fundamental due process rights to parent his biological child.
He contends the statute treats him differently than parents, whose child undergoes the
state dependency system, such that the statute violates his equal protection rights. Both
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arguments have already been rejected by the state Supreme Court and this court. We
address the due process challenge first.
José Leon-Rivera claims the termination of his parental rights violates his
substantive due process rights because the termination was not necessary to protect a
child from harm. Parents have a fundamental right to autonomy in child-rearing
decisions. In re Custody of Smith, 137 Wn.2d 1, 13, 969 P.2d 21 (1998), aff’d, Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). A statute that deprives
a fundamental right must pass strict scrutiny, meaning, the legislation in question must be
necessary to further a compelling government interest. In re Custody of Smith, 137
Wn.2d at 15. Therefore, parental rights may be terminated only on a showing of parental
unfitness. Santosky v. Kramer, 455 U.S. 745, 760, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982).
The Washington Supreme Court in In re H.J.P., 114 Wn.2d 522 (1990), held
RCW 26.33.120(1) did not violate a parent’s due process rights. The statute does not
expressly demand that the trial court find the parent unfit before terminating his or her
rights. Nevertheless, implicit in the language “has failed to perform parental duties under
the circumstances showing a substantial lack of regard for his or her parental obligations”
is the concept of unfitness. The court wrote:
Parental 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 . . . .”
13 No. 35332-0-III In re Adoption of J.L.-R.
In re H.J.P., 114 Wn.2d at 531.
José Leon-Rivera asserts a nuanced challenge to RCW 26.33.120(1) that the
Supreme Court did not directly address in In re H.J.P. Leon-Rivera contends the statute
fails constitutional muster because the statute does not expressly require that his
continued parental relationship with Juan will harm Juan. Division Two of this court,
however, directly addressed this contention in In re Adoption of K.M.T., 195 Wn. App.
548, 381 P.3d 1210 (2016), review denied, 187 Wn.2d 1010, 388 P.3d 489 (2017).
In In re Adoption of K.M.T., a mother petitioned to terminate the father’s parental
rights. The court granted the petition, and the father appealed arguing, among other
contentions, that the court violated his substantive due process right by termination of
parental rights without first finding that termination was necessary to prevent harm to the
child. The court held that the adoption termination statute complies with due process
even though it does not require any showing that the child would be harmed if the
parent’s rights were not terminated.
Similar to the appellant in K.M.T., José Leon-Rivera does not cite any authority
establishing that due process requires a finding of harm to the child before a parent can
terminate parental rights under RCW 26.33.120(1) for the purposes of an adoption. He
forwards no decision that demands such a finding even when a parent’s rights are
14 No. 35332-0-III In re Adoption of J.L.-R.
forfeited at the end of a dependency proceeding. We adopt the reasoning of our sister
division in K.M.T.
Equal Protection
Finally, José Leon-Rivera contends that the trial court’s application of RCW
26.33.120(1) violates his constitutional right to equal protection. Leon-Rivera argues that
parents subjected to a dependency action under RCW 13.34.090(1) unequally enjoy more
protections from the termination of parental rights than when the other parent seeks to
terminate parental rights for purposes of an adoption. This court has rejected this
argument in In re Adoption of K.M.T., 195 Wn. App. 548 (2016) and In re Interest of
Skinner, 97 Wn. App. 108, 982 P.2d 670 (1999).
Statutes are presumed constitutional, and the challenger of a statute must prove
beyond a reasonable doubt that the statute is unconstitutional. In re Welfare of A.W., 182
Wn.2d 689, 701, 344 P.3d 1186 (2015). Equal protection requires that all persons
similarly situated should be treated alike. American Legion Post 149 v. Department of
Health, 164 Wn.2d 570, 608, 192 P.3d 306 (2008). The equal protection clauses of the
United States Constitution and the Washington Constitution “require that people similarly
situated under the law receive similar treatment from the State.” In re Parentage of
K.R.P., 160 Wn. App. 215, 229, 247 P.3d 491 (2011). Whether a defendant is similarly
situated is an inquiry that is determined by and relative to the purpose of the challenged
law. State v. Manussier, 129 Wn.2d 652, 673-74, 921 P.2d 473 (1996).
15 No. 35332-0-III In re Adoption of J.L.-R.
Parents of dependent children who are parties to a termination proceeding under
RCW 13.34.180 are not similarly situated to parents of nondependent children who are
parties to adoption proceedings under RCW 26.33.120. Each statute fulfills a
substantially different governmental function and purpose. In re Interest of Skinner, 97
Wn. App. at 117 (1999). A dependent child has no fit parents and needs the State to
intervene in his or her life to protect him or her from the harm or neglect caused by both
parents. In this instance, Juan has a fit mother and stepfather who willingly support and
care for him.
The State holds no constitutional obligation to provide services to an unfit parent
before terminating parental rights. In re Interest of Skinner, 97 Wn. App. at 116.
Because of the differences in the purposes of RCW 13.34.180, parents of dependent
children are not similarly situated to parents of nondependent children who are parties to
adoption proceedings under RCW 26.33.120. In re Interest of Skinner, 97 Wn. App. at
115-16.
José Leon-Rivera asks us to disagree with Division One’s decision in In re Interest
of Child Skinner because we should apply strict scrutiny to RCW 26.33.120 and
Skinner’s analysis failed to employ strict scrutiny. We agree Skinner failed to apply strict
scrutiny, but we consider RCW 26.33.120 to survive such scrutiny. The State has a
compelling interest in the welfare of a child. In re Dependency of M.H.P., 184 Wn.2d
741, 762, 364 P.3d 94 (2015). Leon-Rivera forwards no decision that applies strict
16 No. 35332-0-111 In re Adoption ofJ.L.-R.
scrutiny in the context of an adoption statute allowing termination of one parent's rights.
Jose Leon-Rivera also contends that Janelle Guzman or the State should have filed
dependency proceedings before terminatjng his rights to Juan. We note, however, that
dependency proceedings do not fit the situation where one parent is fit. The trial court
would have lacked jurisdiction for a dependency action. In addition, Leon-Rivera
received a full panoply of rights that a parent receives in a dependency action, including
appointment of counsel. As in a dependency action, the trial court needed to find by
clear, cogent and convincing evidence that Leon-Rivera was an unfit parent.
CONCLUSION
We affirm the trial court's termination of Jose Leon-Rivera's rights to Juan so that
Jose Armando Guzman may adopt the boy.
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.
Fearing, J.
WE CONCUR:
Siddoway, J. Pennell, A.C.J.