Interest of Pawling, Matter of

• Decision Date: 22 March 1984
• Docket Number: No. 49954-3,49954-3
• Parties: In the Matter of the INTEREST OF Jarrod S. PAWLING, a person under the age of eighteen years. Philip E. PAWLING, Appellant, v. Penny Jo GOODWIN and Michael Goodwin, Respondents.
• Court: Washington Supreme Court

Page 392

101 Wn.2d 392

679 P.2d 916

In the Matter of the INTEREST OF Jarrod S. PAWLING, a person under the age of eighteen years Philip E. PAWLING, Appellant, v. Penny Jo GOODWIN and Michael Goodwin, Respondents.

No. 49954-3.

Supreme Court of Washington En Banc.

March 22, 1984.

Bendich, Stobaugh & Strong, David F. Stobaugh, Seattle, for appellant.

Chemnick & Moen, Eugene M. Moen, Seattle, for respondents.

Allison Moss, Seattle, amicus curiae, American Civil Liberties Union.

DOLLIVER, Justice.

Appellant Philip E. Pawling appeals the judgment which terminated his parental rights under RCW 26.32 with respect to Jarrod S. Pawling, his minor son. Jarrod S. Pawling was born on April 10, 1974. His parents, appellant and respondent Penny J. Goodwin, had a "stormy" marriage. Attempts to reconcile failed and their marriage was dissolved in December 1975. Penny Goodwin was awarded custody of Jarrod.

Appellant was convicted of second degree burglary in 1972 and of rape and trespass in 1977. He has been incarcerated since August 1977 at the Washington State Penitentiary at Walla Walla, serving a maximum sentence of 37 years. His minimum term release date is December 7, 1985.

Prior to his incarceration, appellant visited Jarrod several times. He last visited Jarrod one day in the summer of 1976. Later, Pawling attempted to contact Jarrod by calling his parents and Penny's mother to arrange visits. These attempts were unsuccessful. While Penny Goodwin did not inform appellant where she was living, her phone number was listed in the Seattle directory. Although employed at various jobs prior to his incarceration, appellant paid Penny Goodwin, at most, $300 in support money. Appellant remarried in November 1979.

In February 1980, Penny Goodwin married respondent Michael Goodwin. Jarrod is well integrated into the Goodwin household and calls Michael Goodwin "Dad". He goes by the name of Goodwin. Michael Goodwin treats Jarrod exactly the same as his natural son, Joshua, born to Penny and Michael Goodwin. The Goodwins are Jarrod's psychological parents. Although Jarrod knows Michael Goodwin is not his natural father and that his natural father is alive, he has no memory of appellant.

In January 1981, respondent Penny Goodwin filed a petition to terminate the parent-child relationship of Philip Pawling and Jarrod Pawling under the adoption statute, RCW 26.32. A hearing was held in May 1981. Respondent Michael Goodwin was granted permission to join in the petition so as to comply with RCW 26.32.056.

In its oral opinion, the trial court found

by the burden of proof which I referred to as clear, cogent and convincing that his [Philip Pawling] criminal convictions in light of the absence of steady parenting again ... calls for a finding of termination under that statute. If it is also necessary that this court condition termination of parental rights on a judging that such termination is in the best interests of the child, I am not able to make such a finding.

Thereafter, the judge signed an order of continuance for additional testimony on whether an order of abandonment was in the child's best interest. Additional testimony was heard in October 1981.

In November 1981, the trial court terminated Philip Pawling's parent-child relationship with his son Jarrod. The findings of fact state:

6. Prior to Philip Pawling's incarceration in August, 1977, he had not abandoned his child Jarrod and did not intend to abandon Jarrod.

7. Prior to and during his incarceration, Pawling made several attempts to contact his son Jarrod.

8. After and during his incarceration, up to and including the time of trial, Philip Pawling did not subjectively intend to abandon his son Jarrod.

9. While he is incarcerated, Philip Pawling can but minimally express love and affection for his child.

10. While he is incarcerated, it is virtually impossible for Pawling to provide support for his son.

11. By his criminal conduct that has resulted in his incarceration, Pawling has placed himself in a position which is the equivalent of abandoning his child.

The conclusions of law state:

2. By his criminal conduct and resulting incarceration, Philip Pawling has abandoned his son under circumstances showing a wilful, substantial lack of regard for parental obligations.

3. It is in Jarrod's best interest that Philip Pawling be deprived of his parental rights with respect to Jarrod so that the adoption by Michael Goodwin may take place.

A decree of adoption was subsequently entered in favor of the respondent (stepfather) Michael Goodwin, which was stayed pending appeal.

Initially, appellant alleges CR 59 and CR 15 were violated. Appellant claims the oral opinion of the trial court at the May 1981 hearing was a judgment and in ordering additional testimony the trial court was reopening the case after trial. If appellant is correct, the trial court was required under CR 59(f) to enter an order giving the reasons for granting a new trial. CR 59 contemplates the granting of a new trial after the entry of judgment which is defined in CR 54(a)(1) as "the final determination of the rights of the parties in the action" which "shall be in writing and signed by the judge". From its remarks both at the May 1981 and October 1981 hearings, it is apparent the trial court did not view the May 1981 hearing as a final adjudication. Furthermore, no formal written judgment or findings of fact and conclusions of law were signed until after the October hearing.

As to CR 15, its purpose is to enable a case to be litigated on the merits with the real issue before the court. 3 J. Moore, Federal Practice p 15.02 (2d ed. 1983). The trial court allowed additional evidence to be presented as to the best interests of the child even though this matter had not been raised in the pleadings. Leave to amend pleadings "shall be freely given when justice so requires", CR 15(a), and the decision of a court to grant a continuance to allow the admission of further evidence will not be disturbed except for a manifest abuse of discretion. Morgan Bros., Inc. v. Haskell Corp., 24 Wash.App. 773, 604 P.2d 1294 (1979). No prejudice is shown from the admission of evidence as to the best interests of the child, see CR 15(b), and it is doubtful if any could be shown since the best interests of Jarrod would be of paramount concern to appellant as well as to the other parties. We find no violation of either CR 59 or CR 15.

Next, we consider whether appellant had abandoned his son. RCW 26.32.056 provides:

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.) See RCW 26.32.040(4) (repealed, Laws of 1979, 1st Ex.Sess., ch. 165, § 23, at 1575), wherein adoption of a minor without consent was allowed under the same criteria. The Legislature has statutorily "defined abandonment on the part of a parent to have been established when the circumstances show a 'wilful substantial lack of regard for parental obligations'." In re Adoption of Lybbert, 75 Wash.2d 671, 674, 453 P.2d 650 (1969). See In re Miller, 86 Wash.2d 712, 717, 548 P.2d 542 (1976) (abandonment means the voluntary failure or neglect to care for as well as the failure to support).

Specifically, two decisions of the Court of Appeals have addressed the effect a parent's incarceration has in determining whether there is statutory abandonment. In In re Adoption of Dobbs, 12 Wash.App. 676, 679-80, 531 P.2d 303, review denied, 85 Wash.2d 1006 (1975), the parties divorced and the mother was awarded custody of their minor children. The natural father paid negligible child support and visited the children infrequently. The court found the father had failed in his parental obligations due to his numerous incarcerations in jail or prison for misdemeanor or felony convictions. His incarcerations were deemed "willful and voluntary acts" as "it was his choice as to whether (1) he would fulfill his parental obligations, or (2) commit criminal acts". 12 Wash.App. at 680, 531 P.2d 303. The court concluded the father's conduct constituted "in law an abandonment of his children." 12 Wash.App. at 681, 531 P.2d 303. Cf. former RCW 26.32.040(4).

In In re Clark, 26 Wash.App. 832, 611 P.2d 1343, review denied, 94 Wash.2d 1018 (1980), the trial court terminated a natural father's parental rights to his 6-year-old daughter. The father was serving a 3- to 20-year prison sentence in Minnesota on two charges of aggravated robbery, with a federal hold on him effective upon release. The Court of Appeals affirmed the trial court and stated: "[c]ontinued criminal activity on the part of the father, resulting in his absence and inability to care for his child, may be the equivalent of his abandonment of her, with his conduct expressing disregard for the child's welfare." 26 Wash.App. at 835, 611 P.2d 1343. See also In re Ferguson, 98 Wash.2d 589, 656 P.2d 503 (1983), rev'g 32 Wash.App. 865, 650 P.2d 1118 (1982) (trial court's order terminating father's rights in son affirmed, wherein father was found guilty of taking indecent liberties with his stepdaughter); In re Darrow, 32 Wash.App. 803, 649 P.2d 858 (1982) (judgment to terminate parental rights of prisoner convicted of rape and serving 10-year prison term in Arizona upheld); In re Adoption of Kurth, 16 Wash.App. 579, 557 P.2d 349 (1976) (grandparents who petitioned for adoption of grandson did not need father's consent, wherein father had murdered his wife by drowning her and was sentenced to a 35-year prison term). Cf. Comment, A Survey of State Law Authorizing Stepparent Adoptions Without the Noncustodial...