Nedelkovitsch v. Huffman

42 Wash. App. 345
CourtCourt of Appeals of Washington
DecidedDecember 19, 1985
DocketNo. 6738-6-III
StatusPublished
Cited by6 cases

This text of 42 Wash. App. 345 (Nedelkovitsch v. Huffman) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nedelkovitsch v. Huffman, 42 Wash. App. 345 (Wash. Ct. App. 1985).

Opinions

Thompson, J.

—James L. Huffman appeals the termination of his parental rights, contending the trial court's findings (1) that he had abandoned his children pursuant to former RCW 26.32.056, and (2) that the best interests of the children would be served by the termination were not supported by substantial evidence. We reverse.

James L. Huffman and Corinna V. (Huffman) Nedelko-vitsch were married on December 20, 1978, and at that time were living in Alaska. The Huffmans separated on February 2, 1981, while Mrs. Nedelkovitsch was pregnant with their second child. Shortly thereafter Mrs. Nedelkovitsch moved to Washington with their son and on August 28, 1981, the second child was born in Quincy.

Mr. Huffman continued to reside in Anchorage, and in November 1981, approximately 3 months after the birth of the younger child, he visited Mrs. Huffman and the two children. Although that was Mr. Huffman's sole period of visitation prior to the action for termination of his parental rights, occasional telephone calls were made and cards and gifts were sent on birthdays and holidays.

From the date of separation until approximately July 1982, the date Mrs. Huffman filed for dissolution, Mr. Huffman paid support ranging from $150 to $300 per month. In November 1982, Mr. Huffman lost his job. Pursuant to a March 1983 dissolution decree, Mrs. Huffman was awarded custody of the two children while Mr. Huff[347]*347man was granted visitation rights and ordered to pay child support; but no support payments were made after July 1982.

Mrs. Huffman subsequently married Mr. Nedelkovitsch and in May 1984, the Nedelkovitschs petitioned the superior court for adoption of the children. Following Mr. Huffman's refusal to consent to the adoption, the Nedelko-vitschs petitioned for termination of Mr. Huffman's parental rights. In an August 24, 1984 order, the trial court terminated Mr. Huffman's parental rights.

Mr. Huffman contends the trial court erred in determining he abandoned his children within the meaning of former RCW 26.32.056 (Laws of 1979, 1st Ex. Sess., ch. 165, § 13, p. 1566). He argues substantial evidence does not support the finding of abandonment and termination was not in the best interests of the children under the clear, cogent and convincing evidence standard. We agree.

We are mindful of the great value courts attach to parental rights.

The fundamental nature of parental rights as a "liberty" protected by the due process clause of the Fourteenth Amendment was given expression in Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625, 29 A.L.R. 1446 (1923), wherein the court stated:
The courts of Washington have been no less zealous in their protection of familial relationships. Long ago, this court in In re Hudson, 13 Wn.2d 673, 678, 685, 126 P.2d 765 (1942), stated that a parent's interest in the custody and control of minor children was a "sacred" right and recognized at common law. The Court of Appeals has characterized the right of a parent to their child as "more precious to many people than the right of life itself." In re Gibson, 4 Wn. App. 372, 379, 483 P.2d 131 (1971).

In re Akers, 22 Wn. App. 749, 753, 592 P.2d 647 (1979) (quoting In re Luscier, 84 Wn.2d 135, 136-38, 524 P.2d 906 (1974)). We note that In re Luscier granted the parents the right to counsel in a deprivation matter because of the constitutional guaranty of due process under the fourteenth [348]*348amendment to the United States Constitution and article 1, section 3 of the Washington Constitution.

Thus, courts undertake a grave responsibility when they deprive a parent of the care, custody and control of their natural children, and parental rights should be terminated only for the most powerful of reasons. In re Sego, 82 Wn.2d 736, 738, 513 P.2d 831, 832 (1973); In re Day, 189 Wash. 368, 65 P.2d 1049 (1937). Clear, cogent and convincing evidence is necessary to sustain the critical order terminating parental rights. In re Pawling, 101 Wn.2d 392, 399, 679 P.2d 916 (1984). Appellate review is limited to the determination of whether there is substantial evidence to support the trial court's findings in light of the "clear, cogent and convincing" standard. In re Sego, at 739.

In determining whether parental rights should be terminated prior to step-adoption, the Supreme Court has held:

the appropriate procedure in proceedings under RCW 26.32 is to consider two questions: (1) jurisdictional— whether the biological parent, by behavior, has forfeited all rights in the child, i.e., whether the child has been deserted or abandoned under RCW 26.32.056; and (2) dispositional—whether terminating parental rights would be in the best interests of the child.

In re Pawling, at 400.

With respect to abandonment, former RCW 26.32.056 provided:

In the case of a petition filed by a parent and joined by the petitioner's spouse seeking termination with respect to the other parent, and such other parent appears and contests the termination, the court shall determine whether such parent has deserted or abandoned the child under circumstances showing a wilful substantial lack of regard for parental obligations. If the court makes such a finding, it shall terminate his rights to the child.

(Italics ours.) In re Pawling, at 396; In re Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969). Abandonment means the voluntary failure or neglect to care for as well as failure to support. In re Miller, 86 Wn.2d 712, 717, 548 P.2d 542 [349]*349(1976).

Under former RCW 26.32.056, inquiry must be made into whether the parent has met his or her minimum parental obligations. In re Pawling, at 398; In re Lybbert, at 674. These obligations include the following:

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42 Wash. App. 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nedelkovitsch-v-huffman-washctapp-1985.