Opinion
Nos. 26623-1-III; 26624-9-III.
January 8, 2009.
Appeals from judgments of the Superior Court for Spokane County, Nos. 06-5-00391-3 and 06-5-00778-1, Jerome J. Leveque, J., entered November 2, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
UNPUBLISHED OPINION
Kirk Nieman, paternal grandfather of Shane F. (SF), appeals the decision of the Spokane County Superior Court granting his ex-wife Lorinda Nieman's petition for the adoption of SF and denying Mr. Nieman's petition as well as his request for post-adoption visitation. Ms. Nieman is not SF's grandmother. Concluding that the trial court properly applied the best interests of the child standard in assessing competing adoption petitions and that the de facto parent standard has no application in adoption proceedings, we affirm the decision of the superior court.
FACTS
SF was born on January 5, 2004. SF is the biological grandson of Mr. Nieman. At the time SF was born, Mr. Nieman was married to Ms. Nieman. Ms. Nieman is not the biological grandmother of SF.
Two days after SF was born, the Washington State Division of Children and Family Services placed SF with Mr. and Ms. Nieman due to concerns about the biological parents' ability to care for SF. Thereafter, the parental rights of both biological parents were either terminated or relinquished.
In early 2006, Mr. Nieman filed for divorce from Ms. Nieman. Although the dissolution proceedings did not address issues concerning SF, he remained with Ms. Nieman. After the proceedings had been initiated, Mr. Nieman filed a petition to adopt SF. Ms. Nieman subsequently filed a petition to adopt SF. Both Mr. Nieman and Ms. Nieman were allowed to intervene in the judicial proceedings concerning SF and to proceed with their competing adoption petitions. By agreement of the parties, both adoption petitions were heard concurrently.
At trial, the court received reports and heard testimony from Carol Thomas, a court appointed counselor, and Heather Lund, SF's guardian ad litem. Ms. Thomas and Ms. Lund reported that Mr. Nieman had a significant and stable care-giving relationship with SF. They also concluded that Ms. Nieman had the same relationship with SF. They found, however, that SF showed a deeper attachment to Ms. Nieman due to her role as SF's primary caretaker. Moreover, Ms. Lund concluded that Ms. Nieman's petition for adoption should be granted and that Mr. Nieman should be granted visitation.
Halfway through the trial, Mr. Nieman petitioned the court to grant both adoption petitions and create a joint parenting plan. As an alternative, Mr. Nieman petitioned for visitation rights to SF if Ms. Nieman's petition for adoption was the only petition granted.
At the conclusion of the trial, the court granted Ms. Nieman's petition for adoption and denied Mr. Nieman's petition. The court found that granting only Ms. Nieman's petition would be in the best interests of SF for two main reasons. First, although both Mr. Nieman and Ms. Nieman had displayed good parental traits and although SF had bonded with both of them, SF's attachment to Ms. Nieman was "supersized."
Second, the court found that it would be in the best interests of SF to grant only one petition because "granting both would create a potential for additional serious problems down the road." The court also stated with regard to the denial of Mr. Nieman's petition: "The court finds no specific statute or authority via case law to grant both petitions." Finally, the court denied Mr. Nieman's request for post-adoption visitation, stating that the court did not have the authority to order Ms. Nieman to allow contact between SF and Mr. Nieman.
Mr. Nieman subsequently appealed to this court.
DISCUSSION
Best Interests Analysis
Mr. Nieman contends that the trial court erred by holding that it was in the best interests of SF to grant only Ms. Nieman's petition for adoption. Mr. Nieman elaborates on this central challenge by raising three related contentions. First, he contends that the trial court abused its discretion when it held that serious additional problems outweighed any benefit in granting two competing petitions for adoption because: (a) the trial court made no specific factual findings concerning the nature of those serious additional problems; (b) an expert testified that SF would be traumatized if Mr. Nieman did not participate in SF's life; and (c) the trial court found that SF benefitted from having Mr. Nieman participate in SF's life. Second, Mr. Nieman contends that the trial court erred by finding that Ms. Nieman had a stronger and more family oriented support network. Third and finally, Mr. Nieman contends that the trial court erred by finding that SF's welfare, safety, comfort, and rearing would be better provided for by Ms. Nieman, even though the trial court acknowledged this was a very close call.
A trial court's determination that an adoption is in the best interests of an adoptee is reviewed for abuse of discretion. In re Adoption of Hamilton, 41 Wn.2d 53, 56, 246 P.2d 849 (1952) ("Trial courts must of necessity have a wide latitude of discretion in matters coming before them involving minor children, and their orders and judgments should not be disturbed by the appellate court except for very cogent reasons."); cf. In re Dependency of J.S., 111 Wn. App. 796, 804, 46 P.3d 273 553 P.2d 1339 (2002) (citing In re Welfare of Becker, 87 Wn.2d 470, 478, (1976) ("[C]ourts have broad discretion and are allowed considerable flexibility to receive and evaluate all relevant evidence in reaching a decision that recognizes both the welfare of the child and parental rights." (emphasis added))). Thus, the trial court's decision to grant only Ms. Nieman's petition for adoption is reviewed for an abuse of discretion.
An abuse of discretion occurs where a trial court's decision is manifestly unreasonable or is based upon untenable reasons or grounds. In re Parentage of J.H., 112 Wn. App. 486, 492, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003). An appellate court may sustain a trial court's decision upon any correct ground, "even though that ground was not considered by the trial court." Id. at 495.
Additionally, factual findings will not be disturbed when substantial evidence supports the findings. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991). Moreover, an appellate court cannot weigh the evidence nor judge the credibility of witnesses because these functions are properly assigned to the trial court. Id.
"The criteria for establishing the best interests of the child are not capable of exact specification because each case is largely dependent upon its own facts and circumstances." J.S., 111 Wn. App. at 804 (noting that appropriate factors include the psychological attachment of the child to the person petitioning for adoption, the effect of severing relationships with the child's natural parents, foster family, and/or biological siblings, and the effect of an abrupt and substantial change in the child's environment).
Turning to Mr. Nieman's first challenge arising under the rubric of "best interests," we believe that the trial court did not err when it found that it would be in the best interests of SF to grant only one petition for adoption. The trial court held that granting only one petition would be in the best interests of SF because "granting both [petitions] would create a potential for additional serious problems down the road."
Substantial evidence exists to support this finding. Not only was there a litany of evidence concerning the marital problems between Mr. and Ms. Nieman, but it was uncontested that after an argument between the two, Mr. Nieman changed the locks on their shared residence while Ms. Nieman was at her parents' home with SF. Due to the acrimonious nature of the relationship between Mr. and Ms. Nieman, and due to the fact that granting both adoption petitions would have given both parents substantial legal rights over SF, the court's factual finding that there could be "additional serious problems down the road" is substantially supported by evidence. The situation would also be exacerbated by the fact that there is no statutory process for reviewing custody disputes between an adoptive parent and a third party such as a de facto parent.
Mr. Nieman, however, contends that granting only one petition cannot be in SF's best interests because it will result in the loss of Mr. Nieman's presence in SF's life, and this loss could have a traumatic effect on SF. This contention presents a worst case hypothetical. Although the trial court was not convinced that Ms. Nieman would allow Mr. Nieman to have a continued presence in SF's life, the trial court did not find that Ms. Nieman was assuredly going to prevent Mr. Nieman from having a presence in SF's life. What is certain, however, is that the trial court examined this possibility closely and concluded that it did not outweigh the possibility of "additional serious problems down the road" that could arise from granting both petitions. Given the broad discretion of the trial court in determining whether to grant a petition for adoption, the trial court did not err when it declined to find that granting both petitions would be in SF's best interests.
Turning to Mr. Nieman's second challenge to the "best interests" finding, we believe that the trial court did not err in finding that Ms. Nieman had a stronger and more family-oriented support network than did Mr. Nieman. Substantial evidence supports this finding. First, Ms. Nieman's parents have raised and continue to raise Ms. Nieman's other two children, showing that they are willing to provide Ms. Nieman with a strong support network. Second, Ms. Nieman and her sister are close, such that Ms. Nieman's sister became a foster parent for SF's brother when Mr. Nieman and Ms. Nieman could no longer handle caring for both SF and his brother; this further strengthens Ms. Nieman's family support network. Third, Mr. Nieman's family support network essentially consists of his first ex-wife and one of his sons, neither of whom have demonstrated a willingness to provide Mr. Nieman with the type of child-rearing assistance that Ms. Nieman's family has demonstrated. Thus, the trial court did not err when it found that Ms. Nieman had a stronger and more family-oriented support network.
Turning to Mr. Nieman's last "best interests" challenge, we believe that the trial court did not err when it found that SF's welfare, safety, comfort, and rearing would be better provided for by Ms. Nieman. Although Mr. Nieman never elaborated on why this finding is unsupported by the record, a review of the record shows that this finding is supported by substantial evidence.
The evidence regarding this finding was "very, very close." Both Mr. Nieman and Ms. Nieman had stable jobs that provided good incomes, although evidence was introduced to show that Mr. Nieman earned more than Ms. Nieman. Additionally, both were able to provide a safe and comfortable home for SF, although Mr. Nieman owns a house while Ms. Nieman is renting an apartment. Finally, both have good parenting skills.
This evidence, however, cannot be reviewed in a vacuum. The trial court also properly found that Ms. Nieman had become SF's primary attachment figure, that SF's biological brother is in the care of Ms. Nieman's sister, and that Ms. Nieman's family provides her with a stronger family support network.
Thus, although Mr. Nieman may be able to provide SF with more monetary resources and a house, Ms. Nieman is able to provide SF with sufficient monetary resources, a comfortable home, a strong family support network, access to SF's brother, and herself as SF's primary attachment figure. For these reasons, the trial court did not err when it found that SF's welfare, safety, comfort, and rearing would be better provided for by Ms. Nieman.
In conclusion, given the close nature of this case and the broad discretion of the trial court, the trial court did not abuse its discretion when it found that granting only one petition for adoption, Ms. Nieman's petition, was in the best interests of SF.
Authority to Grant Competing Adoption Petitions
Mr. Nieman argues next that the trial court erred when it found no "specific statutory authority or authority via case law" to grant both adoption petitions. Because RCW 26.33.240 requires a court to grant a petition for adoption when the adoption is in the best interests of the adoptee and because the trial court conducted a proper "best interests" analysis in granting only Ms. Nieman's petition for adoption, we need not and do not address whether our adoption statute allows a court to grant two separate and competing petitions for adoption.
Denial of Visitation
Finally, Mr. Nieman contends that the trial court erred by denying his request for post-adoption visitation because the trial court erred in determining that it had no authority to order such visitation. More specifically, he contends the trial court abused its discretion because the trial court failed to consider the application of the de facto parent doctrine. Mr. Nieman further contends that he established his standing as a de facto parent to SF, and therefore stood in legal parity with Ms. Nieman after the adoption. His arguments require us to address whether the rights of a de facto parent survive an adoption. Finding that such rights do not survive, we affirm the decision of the trial court.
Chapter 26.33 RCW does not provide for judicially mandated post-adoption visitation by any party. RCW 26.33.295(1) is the only section within the chapter that deals with post-adoption visitation, and it merely provides that "[n]othing in this chapter shall be construed to prohibit the parties to a proceeding under this chapter from entering into agreements regarding communication with or contact between child adoptees, adoptive parents, and a birth parent or parents."
Additionally, RCW 26.33.260(1) provides that the entry of a decree of adoption "divests any parent . . . of all legal rights and obligations in respect to the adoptee." RCW 26.33.020(8) defines "parent" as "the natural or adoptive mother or father of a child." The termination of parental rights terminates any biological relatives' rights in a child, including a paternal grandparent's rights. See In re Custody of B.S.Z.-S., 74 Wn. App. 727, 730, 875 P.2d 693 (1994). RCW 26.33.260(4) further provides that "[i]t is the intent of the legislature that this section provide finality for adoptive placements." Thus, the effect of an adoption under chapter 26.33 RCW is to terminate all rights in a child that the child's parents and relatives once possessed so that a new adoptive parent has unrestricted freedom in raising the child as he or she sees fit.
Finally, RCW 26.10.160(3) dealing with third party visitation apart from any other statutory proceeding (e.g., dissolution, custody, etc.) has been ruled "facially unconstitutional" by the Washington State Supreme Court and is therefore of no effect. See In re Parentage of L.B., 155 Wn.2d 679, 714-715, 122 P.3d 161 (2005), cert. denied, 547 U.S. 1143 (2006).
Thus, there is no statutory authority by which to grant post-adoption visitation rights where the request is made within the confines of an adoption proceeding.
In L.B., our Supreme Court held that the de facto parent doctrine applies to claims asserted under Washington's Uniform Parentage Act, chapter 26.26 RCW. See L.B., 155 Wn.2d at 706-707. In that case, the Supreme Court held that the common law de facto parent doctrine gives a person standing to seek parental rights in a child even if they are not a biological or adoptive parent, so long as the person satisfies certain criteria. See id. at 706-709. Once it has been determined that a person is a de facto parent, he or she stands on legal parity with a biological or adoptive parent concerning the relief requested. See id. at 708-709. No Washington court has ever addressed whether the de facto parent doctrine applies to Washington adoption proceedings.
Even if Mr. Nieman could establish that he was a de facto parent and therefore was on legal parity with SF's biological or adoptive parent(s), his rights as a de facto parent need to have survived the adoption in order for him to use those rights as grounds to seek visitation. RCW 26.33.260(1) provides that the entry of a decree of adoption "divests any parent . . . of all legal rights and obligations in respect to the adoptee." If the de facto parent's role has arisen pre-adoption (as occurred in this case), RCW 26.33.260(1) should terminate the rights of the de facto parent just as it would terminate the rights of a biological parent. To hold otherwise would be to give de facto parents greater rights in a child than biological parents, and would frustrate the statutorily established policy of finality in adoptions. Thus, we hold that a de facto parent's rights terminate upon the entry of an adoption decree.
This case is in a different situation than In re Parentage of L.B., supra. There a biological parent and her partner had raised the child before the couple split up and sought to ascertain custody and visitation rights. Here, neither member of the couple was the biological or adoptive parent and they had split up before filing for adoption. Thus, unlike L.B., the de facto parent status predated actual parent status.
Turning to the specific facts of this case, when the trial court entered a decree of adoption in favor of Ms. Nieman, the trial court terminated Mr. Nieman's rights as a de facto parent. With his rights terminated, Mr. Nieman's ability to obtain visitation became entirely dependent upon a third party visitation theory. As has been explained, the trial court did not have authority to grant such visitation. Thus, the trial court did not err when it denied Mr. Nieman's request for post-adoption visitation.
We question whether the de facto parent doctrine should ever apply to adoption proceedings. While our Supreme Court has applied the de facto parent doctrine to claims asserted under Washington's Uniform Parentage Act, see L.B., 155 Wn.2d 679, applying the doctrine to adoption proceedings would be contrary to established precedent and would likely lead to absurd results.
First, adoptions were unknown to the common law and are purely statutory creatures. State ex rel. Van Cleave v. Frater, 21 Wn.2d 231, 233-234, 150 P.2d 391 (1944). This precedent alone gives pause to applying the de facto parent doctrine to adoption proceedings because the doctrine is specifically grounded in common law while adoption is not. If the Legislature had wanted non-parents to have a role in adoption matters, it could have provided for that possibility.
Additionally, if people could establish that they were de facto parents in an adoption proceeding, they would stand on legal parity with a natural or adoptive parent concerning the relief requested, "but only as is determined to be in the best interests of the child at the center of any such dispute." L.B., 155 Wn.2d at 708-709. The adoption statute requires the consent of any parent where the adoptee is less than 18 years old, and since a de facto parent stands on legal parity with any natural or adoptive parent as concerns the right at issue, id., the adoption statute would then require the consent of the de facto parent to any subsequent adoption. This conclusion leads to the problem that if the de facto parent is not willing to give consent, the adoption could not proceed even if it was in the best interests of the child. The "best interests" standard would conflict with itself in that circumstance.
See RCW 26.33.160.
Moreover, giving people a right equivalent to that of a natural parent's right at the very moment they are petitioning for the rights of a natural parent is blatantly absurd. Lastly, it is possible that many foster parents would obtain status as de facto parents, and requiring all of them to consent to adoption would amplify the absurdity. For all of these reasons, we conclude that the doctrine has no application to adoption proceedings. The trial court did not err in rejecting the visitation request.
Attorney Fees
Ms. Nieman contends that she should be awarded attorney fees either on the basis of RAP 14 or on the basis that she lacks the ability to pay her attorney fees. To the extent that Ms. Nieman is claiming reasonable attorney fees, she does not qualify for such fees because chapter 26.33 RCW does not provide for the recovery of reasonable attorney fees and because Ms. Nieman has not provided any other authority on which to base her claim for attorney fees.
Ms. Nieman is entitled to statutory costs and fees as the prevailing party, but we deny the request for reasonable attorney fees.
CONCLUSION
The ruling of the trial court is affirmed.
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.
SCHULTHEIS, C.J. and BROWN, J., Concur.