In re Custody of S.M.

9 Wash.App.2d 325

444 P.3d 637

In the MATTER OF the CUSTODY OF S.M. and A.M.

John McCulla Sr. and Annacarin McCulla, Respondents,

and

Carey McCulla, nka Carey Milton, Appellant,

John McCulla Jr., Defendant.

No. 78208-8-I

Court of Appeals of Washington, Division 1.

FILED: July 1, 2019

Kevin Hochhalter, Olympic Appeals PLLC, 4570 Avery Ln. Se Ste. C-217, Lacey, WA, 98503-5608, for Appellant.

Tami L. Nida Arntzen, Attorney at Law, 1313 N Young St. Ste. D, Kennewick, WA, 99336-7662, Jeffrey Keddie, Northwest Justice Project, 1338 Commerce Ave. Ste. 210, Longview, WA, 98632-3726, for Amicus Curiae on behalf of Northwest Justice Project.

David J. Ward, Attorney at Law, 48 Bedford St. #3b, New York, NY, 10014, for Amicus Curiae on behalf of Legal Voice.

PUBLISHED OPINION

Appelwick, C.J. ¶1 Milton filed a petition to modify a nonparental custody order. The superior court found that Milton failed to establish adequate cause for a hearing on the petition. RCW 26.10.190 applies the adequate cause standard of RCW 26.09.260(1) to modifications of nonparental custody orders. Milton argues that the adequate cause standard is unconstitutional as applied to nonparental custody proceedings. We agree. That standard does not provide a parent a meaningful opportunity to demonstrate that he or she has remedied the unfitness or detriment to the child that was the basis for the nonparental custody order. We reverse and remand for a new adequate cause hearing consistent with this opinion.

FACTS

¶2 S.M. and A.M. are the children of Carey Milton¹ and John McCulla, Jr. Both Milton and McCulla, Jr. have a history of substance abuse, and Milton has struggled with bipolar disorder.

¶3 On March 21, 2016, the children’s paternal grandparents, John McCulla, Sr. and Annacarin McCulla, filed a petition for nonparental custody, asserting that neither Milton nor McCulla, Jr. was a suitable custodian. A court appointed special advocate (CASA) conducted an investigation and recommended that the petition be granted. At the time, S.M. was seven years old and A.M. was three years old.

¶4 McCulla, Jr. joined in the petition and Milton opposed it. Trial on the petition was held on March 20, 2017. Milton did not appear. According to Milton, she did appear but had a panic attack, threw up, and had to leave the courthouse.

¶5 On April 14, 2017, the trial court entered a final nonparental custody order placing S.M. and A.M. with the paternal grandparents. It made accompanying findings of fact that Milton was unfit, that the children would suffer actual detriment if living with her, and that placement of S.M. and A.M. with the grandparents was in the children’s best interests:

Regarding the respondent mother, she suffers from suicidal ideations, is medically diagnosed as bipolar, and has admitted to methamphetamine use in previous court proceedings and reported the same to CASA. The mother has also been committed to a psychiatric institution for psychiatric treatment several times over the past few years. The mother has a history of domestic violence and threats of harm against the respondent father, the petitioners, and even the maternal grandparents. The mother has exhibited her physical and aggressive behavior in front of the children as evidenced by police reports. It is not in the best interest of the minor children to reside with the respondent mother.

....

The children are thriving in the care of the petitioners. The children are excited to be in their current school district. [T]hey regularly attend their medical and dental appointments, and have sufficient space in the new home that they reside in with the petitioners and the paternal great grandmother. The children are well-adjusted and cheerful.

Mother is unfit and an actual detriment to children would occur if children placed with her.

¶6 The trial court entered an order limiting Milton’s contact with the children to three hours of supervised visitation on Saturday or Sunday. Milton was ordered to complete domestic violence treatment, undergo a substance abuse evaluation and participate mental health counseling and medication management.

¶7 Approximately seven months later, on November 29, 2017, Milton filed a petition to modify the nonparental custody order. The petition alleged as follows:

Mother is currently complying with court requirements, has adequate housing, and the ability to meet her children’s needs. It is no longer necessary for the children to reside with their paternal grandparents.

In support of her petition, Milton provided a declaration in which she stated,

In 2017, it was confirmed that I am bi-polar, after two hospitalizations. In my manic phases, I have damaged relationships, lost jobs, and lost my children. Since my medication has stabilized through a mood stabilizer, injected once a month at Valley Cities, I have been able to finish an associate degree, maintain employment for over six months, get my own apartment and regain control of my life.

Milton also provided documentation showing that she complied with the substance abuse evaluation. But, Milton did not complete the domestic violence portion of the trial court’s order and instead disputed the domestic violence allegations.²

¶8 On January 26, 2018, a superior court commissioner found that Milton failed to establish adequate cause to modify the nonparental custody order. The commissioner noted that Milton did not meet the criteria for modification stated in the nonparental custody order.

So I am denying the request for adequate cause. I read these orders to be very specific about what Ms. Milton is expected to do. And that includes domestic violence treatment that happens after entry of the order on April 10, 2017. Also with proof that that provider is given a copy of all of the CASA reports.

The commissioner also found that the modification statute, RCW 26.09.260(1), precluded Milton from seeking to modify a nonparental custody order based on a change in her own circumstances:

I think it is wonderful what I read about the new medication helping and being given in a more reliable type of way. And so that is great and I don’t want to undermine that at all. But I do not find that when there are constitutionally sufficient findings of unfitness that a parent can come back to court within a year of entry of those orders after trial and say I am substantially better now, and so let’s do away with those orders. I don’t think that is what the statute says, and I don’t think that is what the case law says.

The commissioner’s written order states as follows:

Respondent, Carey Milton has not provided proof of compliance with all requirements in the 4/10/17 orders Judge McCullough entered after trial. That court’s constitutionally sufficient findings after trial mean Ms. Milton must meet the major modification standard as she requests a major mod[ification] less than a year after trial. She has not met her legal burden, has not proven substantial change in circumstances and detriment to the children under RCW 26.09.260.

¶9 Milton sought revision of the commissioner’s ruling from a superior court judge. That judge denied the motion for revision on the grounds that Milton was precluded from seeking modification based on a change in her own circumstances:

The Court cannot find adequate cause exists to modify the April 10, 2017 Order for Non-parental Custody. Respondent Carey Milton[,] under current case law and the wording of the statute[,] does demonstrate affirmative steps have been taken to remedy the court’s concerns regarding her fitness as a parent.

Milton appeals.

DISCUSSION

¶10 Chapter 26.10 RCW sets forth the procedure for nonparental custody actions.³ RCW 26.10.030(1) provides that a party may file a nonparental custody petition "if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian." The court must make a threshold determination that the petition and supporting affidavits establish adequate cause for a hearing. RCW 26.10.032.

¶11 RCW 26.10.100 provides that, in nonparental custody proceedings, "[t]he court ‘shall determine custody in accordance with the best interests of the child.’ " But, the "best interest of the child" standard, by itself, is a "constitutionally insufficient basis on which to deprive a parent of parental rights." In re Custody of Z.C., 191 Wash. App. 674, 692, 366 P.3d 439 (2015) (citing In re Custody of Smith, 137 Wash. 2d 1, 20, 969 P.2d 21 (1998), aff’d by Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) ). Consequently, In re Custody of Shields, 157 Wash.2d 126, 140, 136 P.3d 117 (2006), the Washington Supreme Court imposed additional, nonstatutory requirements. A petitioner must establish that (1) the parent is unfit or (2) that the parent is fit but placement with the parent would cause actual detriment to the child's growth and development. Id. at 150, 136 P.3d 117. This is a high standard that will typically be met only in " ‘extraordinary circumstances.’ " In re Custody of B.M.H., 179 Wash.2d 224, 236, 315 P.3d 470 (2013) (quoting In re Marriage of Allen, 28 Wash. App. 637, 649, 626 P.2d 16 (1981) ).

¶12 Once a nonparental custody order is entered, it may be modified only pursuant to chapter 26.09 RCW, the statute governing the dissolution of marriage and allocation of residential time and decision-making between parents. RCW 26.10.190. To modify a nonparental custody order, a court must find that

upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.

RCW 26.09.260(1) (emphasis added). "Missing from the grounds for modification is a substantial change in the circumstances of the parent moving for...