In re Custody of J.E.

189 Wash.App. 175

356 P.3d 233

In re CUSTODY OF J.E., Luke and Kelly Culver, Respondents/Cross–Appellants and Amy Page Eaton and Travis Eaton, Appellants.

No. 32062–6–III.

Court of Appeals of Washington, Division 3.

Aug. 4, 2015.

As Amended Aug. 6, 2015.

Janelle Carman, John Clinton Julian, Carman Law Office Walla Walla, WA, Arthur D. Klym, Armstrong Klym Waite Atwood & Jameson PS, Richland, WA, for Appellants.

Mason Jones Pickett, Defoe Pickett Law Office, Kennewick, WA, for Respondents/Cross–Appellants.

Opinion

BROWN, J.

¶ 1 Travis and Amy Eaton appeal the trial court's nonparental custody decree granting 50/50 split custody of their son J.E. to Luke and Kelly Culver, J.E.'s uncle and aunt. The court found the Eatons fit parents. The Eatons mainly contend the court erred in concluding that dismissing the Culvers' petition would result in actual detriment to J.E.'s present and future growth and development. The Culvers cross-appeal, contending the court erred in failing to grant their motion to amend the pleadings to include a de facto parentage claim they made after resting their case and the Eatons had moved to dismiss. We hold the trial court erred in applying the actual detriment standard because substantial evidence does not establish specific facts showing J.E. had any specific significant special need that could not be met by his parents. We find no error in the trial court's de facto parent rulings. Accordingly, we reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 2 Beginning in 2003, two-year-old J.E. began primarily living with his uncle and aunt, the Culvers. His parents, the Eatons, were unable to care for J.E. and his older sister K.E. for a number of compelling reasons including a misdiagnosed mental health condition resulting in Ms. Eaton's debilitating suicide attempt, stress from K.E.'s severe and terminal epilepsy, and the Eatons' inability to care for their children under the circumstances. After a family “intervention,” the Eatons reluctantly arranged to give the Culvers informal temporary placement of J.E. and K.E. mainly to assure K.E.'s care. Report of Proceedings (RP) at 1096. J.E. spent the next nine years residing primarily with the Culvers with the Eatons visiting. J.E. knew the Eatons were his parents and called them mom and dad. After some time, J.E. also began calling the Culvers mom and dad with the Eatons' approval. When the Culvers had children, J.E. referred to his cousins as his siblings. J.E. is close to his cousins, especially his younger male cousin. The Culvers exercised medical decision-making authority for K.E. and J.E. pursuant to a 2007 power of attorney and a 2009 guardianship created by the Eatons. The record shows the parties shared and consulted in most significant care and upbringing decision-making for J.E. and K.E. Sadly, K.E. died in 2010.

¶ 3 Meanwhile, Ms. Eaton's health stabilized, she became successfully employed, and the Eatons' marriage stabilized. In 2012, the changed situation motivated the Eatons to seek J.E.'s transition back into their home. The Culvers cooperated, but the Eatons believed the pace was too slow and the Culvers' assistance was inadequate. In summer 2012, the Eatons chose not to renew the guardianship and decided not to return J.E. to the Culvers. In response, the Culvers petitioned for nonparental custody and obtained an ex parte order for J.E.'s return.

¶ 4 In their petition, the Culvers alleged for adequate cause: “The child has not been in the physical custody of either parent since 2003. Neither parent is a suitable custodian for the child because: The mother and father have had limited contact with the minor child for the past 9 years.” Clerk's Papers (CP) at 4. For best interests, the Culvers alleged: “The change in custodians and home would be extremely detrimental to the child,” CP at 4. The Eatons received physical custody after termination of the ex parte order, and the Culvers received visitation. The placements were generally reversed after the adequate cause hearing. The court decided the Eatons were fit parents. Even so, the court ordered J.E.'s slow transition into the Eatons' physical custody and counseling to assist J.E. with the transition. J.E. showed some negative behaviors when he returned to the Culvers' physical custody. The Eatons did not request reconsideration, superior court revision, or discretionary review. Instead, the Eatons began working to accomplish the court's transition plan. The court throughout unsuccessfully urged settlement.

¶ 5 The court appointed counselor Doug Loree to facilitate visitation schedules and transition J.E. from the Culvers' home to the Eatons' home. Mr. Loree wanted to “empower” J.E. with significant input on the visitation schedule. RP at 40. Mr. Loree generally adopted J.E.'s wishes as his trial recommendation. Apparently early on, J.E. would not choose between the parties and suggested an equal time arrangement. Mr. Loree related cutting off all contact with the Culvers would be difficult for J.E. The court appointed a guardian ad litem (GAL) to assist J.E.'s transition into the Eatons' physical custody. The GAL answered “yes” when asked if she could accomplish the goal of transitioning J.E. from the Culvers' home to the Eatons' home if given additional time and more involvement. RP at 274. Asked at trial if the court denied the Culvers' petition whether “actual detriment” would result by the loss of the Culvers' family unit, the GAL responded, “Yes.” RP at 274. But the GAL agreed no actual detriment would result if the parties could come to an equal time agreement. The GAL, like Mr. Loree believed it was in J.E.'s best interests to reside half in each home. Neither Mr. Loree, nor the GAL specified what actual detriment to J.E.'s growth and development would occur by having parental custody with the Eatons.

¶ 6 The court ruled the Culvers' unpleaded de facto parentage claim came too late because it was first mentioned after the Culvers rested their case and after the Eatons had moved to dismiss. Nevertheless, the court concluded the Culvers had “standing” to bring this nonparent custody case partly because J.E. had been in their “physical custody” but rejected de facto parentage as a basis for standing. RP at 45, 50. The court ruled the Eatons were fit parents but decided J.E. would suffer actual detriment to his long term growth and development if the Eatons received full custody and ordered J.E. to reside equally with the Eatons and the Culvers. The Eatons appealed. The Culvers cross-appealed the trial court's de facto parentage rulings.

ANALYSIS

A. Nonparental Custody

¶ 7 The issue is whether the trial court erred in granting the Culvers' nonparent custody petition and decreeing evenly split custody with the Eatons. The Eatons mainly contend substantial evidence does not support the trial court's conclusion that actual detriment would result to J.E.'s future growth and development by maintaining custody with them. The Eatons challenge certain findings and the adequate cause decision.

¶ 8 Given “the trial court's unique opportunity to personally observe the parties,” a trial court's custody disposition is not disturbed on appeal absent a manifest abuse of discretion. In re Custody of Stell, 56 Wash.App. 356, 366, 783 P.2d 615 (1989). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. West v. Dep't of Licensing, 182 Wash.App. 500, 516, 331 P.3d 72 (2014). “A trial court's decision is manifestly unreasonable” if it (1) “is outside the range of acceptable choices, given the facts and the applicable legal standard”; (2) “is based on untenable grounds if the factual findings are unsupported by the record”; or (3) “is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.” Id. at 516–17, 331 P.3d 72. While we can affirm on any basis supported by the record, we will not review a trial court's credibility determinations or reweigh the evidence. Id. at 517, 331 P.3d 72 ; In re Welfare of C.B., 134 Wash.App. 942, 953, 143 P.3d 846 (2006).

¶ 9 We will uphold a trial court's findings of fact if they are supported by substantial evidence. In re Custody of Shields, 120 Wash.App. 108, 120, 84 P.3d 905 (2004), overruled on other grounds by 157 Wash.2d 126, 136 P.3d 117 (2006). “Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the truth of the declared premise.” Burrill v. Burrill, 113 Wash.App. 863, 868, 56 P.3d 993 (2002). A trial court's conclusions of law are reviewed de novo. In re Custody of A.F.J., 179 Wash.2d 179, 184, 314 P.3d 373 (2013).

¶ 10 Chapter 26.10 RCW allows third parties to petition for child custody. “Such an award confers on the nonparental custodian the legal power to ‘determine the child's upbringing,’ to the exclusion of the natural parent.” In re Custody of C.C.M., 149 Wash.App. 184, 204, 202 P.3d 971 (2009) (quoting RCW 26.10.170 ). But

[a] nonparent custody order confers only a temporary and uncertain right to custody of the child for the present time, because the child has no suitable legal parent. When and if a legal parent becomes fit to care for the child, the nonparent has no right to continue a relationship with the child.

A.F.J., 179 Wash.2d at 186, 314 P.3d 373 (quoting In re Parentage of J.A.B., 146 Wash.App. 417, 426, 191 P.3d 71 (2008) ).

¶ 11 Because of parents' fundamental right to make decisions regarding the care, custody, and control of their children, we afford parents “considerable deference” when balancing the parents' rights against both the interests of third parties and children's rights. In re Custody of B.M.H., 179 Wash.2d 224, 234, 315 P.3d 470 (2013). Thus, in custody disputes between parents and nonparents, before a nonparent can be awarded custody, the nonparent must establish either the parent is unfit or custody with the parent...