In re Custody of Shields

Page 117

136 P.3d 117

157 Wn.2d 126

In the Matter of the CUSTODY OF SHIELDS, DOB: 11/14/90 Jenny Shields, Respondent, and Susan Harwood, Petitioner.

No. 75263-0.

Supreme Court of Washington, En Banc.

Argued November 15, 2005.

Decided June 8, 2006.

Gary R. Stenzel, Gary R. Stenzel PS, Spokane, for Petitioner/Appellant.

Lee Russell McGuire, Jr., Attorney at Law, Davenport, for Appellee/Respondent.

MADSEN, J.

¶ 1 C.W.S. was removed from his mother's home in 2003 when the trial court awarded custody to his stepmother. Petitioner Susan Harwood (mother) is challenging the Court of Appeals' decision affirming the trial court's order awarding custody of her son to Respondent Jenny Shields (stepmother). Harwood argues that Shields lacked standing to bring this nonparental custody action, that under chapter 26.10 RCW, nonparental actions for child custody, a court may award custody of a child to a nonparent in a custody dispute between a parent and a nonparent only if a parent having physical custody of the child is "unfit," and that the trial court abused its discretion when the court erroneously applied the "best interests of the child" standard in making its custody decision.

¶ 2 We hold that Shields has standing and that under chapter 26.10 RCW, a court may award custody of a child to a nonparent in a proceeding against a parent if a parent is either unfit or if placement with that parent would result in actual detriment to the child. Under the detriment standard the nonparent has a heightened burden to establish that actual detriment to the child's growth and development will occur if the child is placed with the parent, consistent with the constitutional mandate of deference to parents in these circumstances. We also hold that the trial court abused its discretion by erroneously applying the "best interests of the child" standard in determining the custody of C.W.S. Accordingly, we reverse and remand to allow the trial court to apply an actual detriment standard.

FACTS

¶ 3 Susan Harwood and Michael Shields were married on May 12, 1989. C.W.S., their only child, was born on November 14, 1990. Harwood and Michael Shields divorced on September 6, 1994, when C.W.S. was three years old. By agreement between the parents and under the terms of the parenting plan, C.W.S. was to reside primarily with his father, Michael Shields. His mother, Harwood, was granted liberal visitation. C.W.S. was to spend alternating holidays, all spring vacation, and a majority of summer vacation with his mother. Additionally, C.W.S. was to spend each parent's vacation with that parent each year. All major decisions regarding C.W.S., including educational decisions, nonemergency health care, and religious upbringing were to be made jointly between Harwood and Michael Shields. After the divorce, Michael Shields continued to help support Harwood, including paying for her automobile so she could continue to visit her son.

¶ 4 On July 6, 1996, Michael Shields married Jenny Wisecarver. Jenny's daughter was eight years old at the time of the wedding. Michael Shields adopted her on June 30, 1997.

¶ 5 In fall 1996, Harwood moved to Willamina, Oregon, approximately 375 miles from the Shieldses' home in Lamont, Washington, and later married Kurt Harwood. Prior to her marriage, Harwood did not utilize a significant portion of her visitation. For example, Harwood did not have C.W.S. reside with her during the summers of 1995 and 1996.

¶ 6 In May 1997, the court ordered a new parenting plan. Under this plan Harwood's monthly visitation was reduced to one weekend a month, to take place near Lamont, Washington, so that C.W.S. would not have to travel. As part of the new parenting plan, an order of child support was also entered requiring Harwood to contribute for C.W.S.'s upbringing. The net support obligation was determined to be $112.20 but was reduced to $25.00 per month to avoid dropping Harwood below the basic need standard based on her inability to pay.

¶ 7 Between 1997 and 2001, C.W.S. resided with Harwood in Oregon during all but one of the scheduled visitations, consisting of portions of Christmas break, spring break, and summer vacation. In December 2000, C.W.S. was ill during his scheduled Christmas break and was thus not able to travel to Oregon to visit Harwood. During this time, C.W.S. resided with Harwood in Oregon approximately four weeks a year. Due to her job and the significant distance between the two families, Harwood visited C.W.S. in Washington approximately 15 percent of the time for her monthly weekend visits provided in the parenting plan. Harwood and C.W.S. had limited and sporadic phone contact. In 1999, Michael and Jenny Shields had a child.

¶ 8 On August 11, 2001, when C.W.S. was 10 years old, Michael Shields died in a bizarre accident at home. Harwood learned of Michael Shields' death on Sunday, August 12, 2001, and phoned the Shieldses to inform them that she intended to pick up C.W.S. and bring him to her home in Oregon. Prior to Michael Shields' funeral, Harwood and her husband drove to Lamont to arrange to bring him to Oregon. There is some dispute as to whether Harwood intended to allow C.W.S. to attend his father's funeral. Harwood claims she always planned for C.W.S. to attend the funeral. Jenny Shields and other relatives in Michael Shields' family claim that Harwood had to be convinced to wait until after the funeral to take C.W.S. to Oregon.

¶ 9 The day after the funeral, Harwood requested that Jenny Shields bring C.W.S. to a neutral location in Sprague, Washington, but Shields refused, resulting in Harwood driving to the Shieldses' family farm to pick up her son. In the few days between C.W.S.'s father's death and his mother's resumption of custody, Jenny Shields had C.W.S. and his two siblings attend bereavement counseling in Spokane.

¶ 10 C.W.S. lived with Harwood and her husband from August 2001 until January 2003. The Harwoods live on a farm in Willamina, Oregon, where they raise horses. C.W.S. had his own horse, a gelding named Chocolate. Harwood is employed as a cashier at a casino and Kurt Harwood is a truck driver. After C.W.S. arrived in Oregon, Harwood arranged to have him meet with Jeri Lee Merkle, a clinical social worker specializing in bereavement counseling. Over the course of 14 months, C.W.S. met with Merkle 31 times. Ten of the 31 sessions consisted of private therapy sessions between Merkle and C.W.S. Six of the 31 sessions consisted of private therapy sessions with Merkle, C.W.S., and Harwood present or with Merkle, C.W.S., Harwood, and Kurt Harwood present. In the remaining 15 sessions, Merkle and another therapist met with C.W.S. and other children as part of a group bereavement therapy program.

¶ 11 While in Oregon, C.W.S. did well in school, was elected class president, and joined the football team at his school. C.W.S. also tested into the talented and gifted program.

PROCEDURAL HISTORY

¶ 12 On August 21, 2001, Jenny Shields (hereinafter Shields) filed a nonparental custody petition pursuant to RCW 26.10.030(1) claiming that Harwood was not a suitable custodian for C.W.S. In the petition, Shields also requested child support modification and that reasonable visitation be awarded to Harwood.

¶ 13 Shields claimed in the petition that C.W.S.'s best interests would be served by staying in the family home in Lamont where he had spent the six years prior to the filing of the petition with Shields. According to Shields, C.W.S. has close ties with his siblings as well as other family and friends in Lamont, has attended school his entire life in Lamont, and loved the family farm.¹

¶ 14 On December 5, 2001, a pretrial hearing was held. Shields' counsel requested that a guardian ad litem be appointed to assess Harwood's fitness, relying on In re Custody of Nunn, 103 Wash.App. 871, 14 P.3d 175 (2000). Harwood's counsel, also relying on Nunn, requested that the nonparental custody petition be dismissed because there was no evidence that Harwood was unfit. At the conclusion of the hearing, the judge appointed a guardian ad litem to make an initial investigation. The guardian ad litem was to determine whether or not the biological mother was unfit and if so, whether there was a possibility of harm to the child.

¶ 15 On April 15, 2002, at the guardian's request, the judge expanded the guardian ad litem's duties, authorizing him to investigate and explore the appropriateness of C.W.S.'s placement with Shields and C.W.S.'s siblings and with Harwood. The guardian was granted access to all counselors, psychologists, psychiatrists, and medical doctors for Shields, Harwood, and the children in each household. The guardian was also authorized to visit each residence and to receive copies of all school records for C.W.S.

¶ 16 The guardian ad litem submitted his report on October 18, 2002, in which he recommended that C.W.S. be allowed to primarily reside with his half-brother, half-sister, and stepmother, Shields, at their residence in Lamont, Washington, with reasonable visitation with his mother, Harwood and stepfather, Kurt Harwood, in Oregon. The guardian ad litem based his conclusions primarily on the fact that between Harwood and Shields, Shields has been the primary residential parent since C.W.S. was five years old; C.W.S. is closely bonded with Shields, his psychological parent, and is less bonded to his mother; C.W.S. wished to reside with Shields and his siblings; and while in Oregon, C.W.S. had limited contact with his family in Washington.² Additionally, the guardian ad litem stated that Dr. Frank Hamilton, who had seen C.W.S. a few times with Shields and C.W.S.'s siblings present, identified "a potential problem appears just waiting to happen of a serious magnitude as [C.W.S.] stands at the threshold of adolescence and enters the time when many adolescents begin a period of rebellion or obstructive behavior." Clerk's Papers (CP) at 208. According to the guardian ad litem,...