C. v. Carey (In re Custody S.f.-T.)

In the Matter of the Custody of S.F.-T.C., A Minor Child.

Janet Carey, Nick Carey, Laura Carey, Respondents, v. Jasmine Rose Carey, Mother, Kyle Carey, Father, Deceased, Appellant.

No. 32367-6-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

February 9, 2016

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION

THE COURT has considered respondents' motion for reconsideration, and is of the opinion the motion should be denied and its opinion of February 9, 2016, should be amended to include a footnote, numbered "3," following the language "in 2012 and 2013." on line 14, page 19 of the slip opinion, to read as follows:

In a motion for reconsideration, the Careys point out that a trial court is not prohibited from speculating under Washington case law, citing B.M.H., 179 Wn.2d at 238. But the court in B.M.H. pointed out that the trial court did not impermissibly speculate in that case since there were multiple instances of past conduct on which it based its concern. It stated that "this court will, if necessary, speculate about future possibilities in making determinations about domestic relations." Id. (emphasis added). The court in B.M.H. still concluded that the possibly warranted speculation that the mother would interfere with the nonparent's relationship with B.M.H. was insufficient to show actual detriment.

Implicit in B.M.H.'s discussion of speculation is the fact that even where speculation is permitted, it often will provide an insufficient basis for finding actual detriment. Cf., Dependency of T.L.G., 139 Wn. App. 1, 17, 156 P.3d 222 (2007) (When the State denies a parent's visitation with a child, "[t]he legislatively-mandated risk of harm must be an actual risk, not speculation"). Speculation provides an insufficient basis here.

Therefore,

IT IS ORDERED, the motion for reconsideration of this court's decision of February 9, 2016, is hereby denied and the opinion is amended as set forth above.

PANEL: Judges Siddoway, Korsmo, Lawrence-Berrey

FOR THE COURT:

/s/_________

LAUREL H. SIDDOWAY, Chief Judge

UNPUBLISHED OPINION

SIDDOWAY, C.J. — Following an eight-day trial that took place in September 2013, the superior court for Benton County awarded nonparental custody of Jasmine C.'s then nine-year-old daughter, S., to her paternal uncle and aunt. The trial court's findings of fact included its finding that the petitioning uncle and aunt had not "established by clear and convincing evidence, nor even by a preponderance of the evidence, that [Jasmine] is an unfit parent." Clerk's Papers (CP) at 338. But relying on the opinions ofthree witnesses that S. had suffered an unusual and risk-presenting amount of trauma during the first seven-and-a-half years of her life, the court concluded that there would be actual detriment to S.'s future growth and development if she were returned to her mother's care.

In nonparental custody cases, when properly applied, the nonparent will meet the actual detriment standard solely in "extraordinary circumstances." In re Custody of B.M.H., 179 Wn.2d 224, 236, 315 P.3d 470 (2013) (quoting In re Custody of Shields, 157 Wn.2d 126, 145, 136 P.3d 117 (2006)). The nonparent must show that the child has significant special needs that would not or could not be met in her parent's custody, or some serious diagnosed emotional instability that will be exacerbated by the placement. In re Custody of J.E., 189 Wn. App. 175, 189-90, 356 P.3d 233, (2015). The actual detriment standard is not met by showing that nonparental custody is in the child's best interests.

The superior court's findings in this case do not reflect extraordinary circumstances, nor was the evidence at trial sufficient to support findings that would, in turn, support a conclusion that placement would result in actual detriment to S.'s future growth and development. Accordingly, we reverse the custody decree.

FACTS AND PROCEDURAL BACKGROUND

Jasmine C. married S.'s father, Kyle, 18 days after her 16th birthday. She gave birth to S. when she was 18 years old. Kyle and Jasmine took drugs together, includingmethamphetamine, and they had a stormy relationship. They divorced in March 2007, when S. was two-and-a-half years old. Despite testing positive for methamphetamine during the dissolution proceedings, Jasmine was awarded custody of S.

In January 2008, Jasmine learned from three-and-a-half-year-old S. that Will Higgins, a friend of Kyle's who had lived in the past in the couple's household and was living in Jasmine's home at the time, had sexually assaulted S. Jasmine sought and obtained protection orders for S. and initiated and cooperated with a police investigation that led to Higgins' conviction. Jasmine also began taking S. to Lyn Lang, a mental health counselor, to address emotional fallout from the assault.

In December 2008, police received a report that led them to visit Jasmine's apartment, which they found to be unsanitary and in disarray. The investigating officer told Jasmine he would file a report with Child Protective Services. When a follow-up visit in January 2009 revealed unchanged conditions, S. and a younger stepsister—B., Jasmine's child with another man—were placed in protective custody. Kyle thereafter sought to modify the parenting plan for S., and in June 2009 he was granted full custody. The parenting plan entered at that time provided that Jasmine would initially be permitted one four-hour visit with S. each week, but visits were required to be supervised by a licensed and approved provider and Jasmine was required to "pay all costs associated with this supervision." CP at 17.

Jasmine, who presented evidence of chronic medical problems, was prescribed medications and continued to use and abuse drugs for the next several years. She did not see S. during the three years that Kyle had custody.

In early January 2012, Jasmine gave birth to a third daughter, J. A dependency was filed before Jasmine could take J. home from the hospital. The Department of Social and Health Service's offer of services during the dependency was the beginning of a process through which Jasmine began addressing her parental deficiencies. After successfully participating in the services, Jasmine regained custody of J. on May 17, 2012, and the dependency was dismissed.

On March 1, 2012, while the dependency proceeding dealing with J. was ongoing, Kyle committed suicide. Two weeks later, Nick and Laura Carey, Kyle's brother and sister-in-law, filed a nonparental custody petition seeking custody of S. Janet Carey, Kyle's mother, joined the petition. We sometimes refer to the petitioners hereafter as "the Careys."

Jasmine opposed the petition and sought to have the court return custody of S. to her. The court granted temporary custody of S. to Nick and Laura Carey.

After filing the petition for nonparental custody, Janet Carey contacted Ms. Lang, and arranged to renew counseling for S. with Ms. Lang. In response to Jasmine's early requests for visitation with S., the superior court entered an order on April 19, 2012, indicating it would rely on Ms. Lang for a "time frame and parameters & all details re:reintroduction & reunification of Jasmine w/ [S.]" CP at 545. Janet Carey was opposed to S. having any visitation with Jasmine, and even Ms. Lang favored no visitation. Although Ms. Lang was notified by Jasmine's lawyer of the court's request for a reunification plan on April 24, 2012, and spoke with both parties' attorneys about the court's order on May 3, 2012, Ms. Lang failed to make any recommendation.

Jasmine sought to be reintroduced to S. for at least 10 months before the reintroduction occurred. While it is not clear from our record on appeal how Jasmine was finally able to secure visitation beginning in early February 2013, she may have acted on the 2009 parenting plan, because she began visitation at Kids at Heart, a supervised visitation provider. Between then and the time of trial, the court twice increased her visitation, removing any requirement for supervision and ordering that Jasmine's other children could occasionally be included in her visitation with S.

Trial of the petition for nonparental custody took place over eight days in late September 2013 and early October 2013. Dozens of witnesses were called. While the trial court concluded in its decision that Jasmine was a fit parent, it entered one-and-a-half pages of findings in support of its conclusion that there would be actual detriment to S.'s growth and development if she were placed in her mother's care. Its findings placed primary reliance on the testimony of Susan Holden, a school counselor and Michele Leifheit, who had been engaged to prepare an assessment of S.'s bonding with the Careys. The court's findings also placed some reliance on the testimony of Lyn Lang,while at the same time stating that "it did appear that Ms. Lang did, perhaps at times lack some objectivity in regards to some of her opinions and positions in her actions in regard to this case." CP at 340.

Based on its conclusion of actual detriment, the court granted the Careys' nonparental custody petition. The parenting plan granted Jasmine visitation with S. for three hours on Mondays, five hours on Wednesdays, and one weekend a month. Jasmine appeals.¹

ANALYSIS

Circumstances under which a nonparent can be awarded custody

A parent has a fundamental liberty interest in raising his or her children without state interference. In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998), aff'd sub nom., Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). "Where a fundamental right is involved, state interference is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved." Smith, 137 Wn.2d at 15 (citing Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

In Washington, chapter 26.10 RCW permits a third-party nonparent to petition a...