In re Shane F.

• Decision Date: 08 January 2009
• Docket Number: 26624-9-III,26623-1-III
• Parties: In re the Interest of: SHANE F. A person under the age of eighteen. In re the Adoption of: SHANE F. A person under the age of eighteen.
• Court: Washington Court of Appeals

In re the Interest of: SHANE F. A person under the age of eighteen. In re the Adoption of: SHANE F. A person under the age of eighteen.

Nos. 26623-1-III, 26624-9-III

Court of Appeals of Washington, Division 3

January 8, 2009

UNPUBLISHED OPINION

Korsmo, J.

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 (2002) (citing In re Welfare of Becker, 87 Wn.2d 470, 478, 553 P.2d 1339 (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 s...