In re L.Z.

IN RE CUSTODY OF L.Z., a minor child. DANIEL SCHOCH, Respondent, And LIYING ZHANG SCHOCH, Appellant,

No. 46466-7-II

Court of Appeals of Washington, Division 2

March 31, 2015

UNPUBLISHED OPINION

Sutton, J.

Liying Zhang^[1] appeals the trial court's order granting Daniel Schoch, her ex-husband, permanent nonparental custody of one of Zhang's minor children. Zhang argues that the trial court erroneously applied a "best interests of the child" standard and thereby abused its discretion and erred when it changed the child's last name. Zhang requests attorney fees and costs on appeal. Schoch cross-appeals arguing that the trial court erred when it denied his motion to amend his petition to add a de facto parentage claim.

We hold that (1) the trial court abused its discretion when it erroneously applied a "best interests of the child" standard; (2) the trial court erred by changing the minor's last name; and (3) the trial court abused its discretion in denying Schoch's motion to add a de facto parentage claim. Accordingly, we vacate the trial court's nonparental custody decree and residential schedule and reverse and remand for proceedings consistent with this opinion. On remand, Schoch may pursue a de facto parentage claim. We award Zhang reasonable attorney fees and costs on appeal in the amount of $10, 000 based on her need and Schoch's ability to pay.

FACTS

Liying Zhang met Daniel William Schoch through the internet in October 2008. Zhang was living in China, and Schoch was living in Grays Harbor County. Zhang had two daughters, Lh and Lx.^[2], both whom she adopted as infants after finding them abandoned near her home in China. At the time of trial, Lh. was approximately 14 years old and Lx. was approximately 15 years old.

Zhang and Schoch met in person several times before they were married in November 2009. That same November, Zhang left her job with a Chinese pharmaceutical company and moved to Grays Harbor County with her two daughters to be with Schoch. Once she relocated to the United States, Zhang no longer worked outside the home and she and her daughters lived in Schoch's home.

After they married, Schoch asked Zhang to care for his ailing father and several of Schoch's grandchildren. This arrangement caused marital stress because Zhang wanted to work outside the home. Schoch insisted that Zhang care for his family, and he threatened not to renew Zhang's green card. Zhang complied, but felt she was no longer treated as Schoch's equal.

Tension also existed in the home because of Zhang's desire to have her daughters speak to her in Chinese. During one incident, Schoch became angry when Zhang and Lx. did not eat American food, but ate Chinese food instead. Schoch complained the house smelled, swept the meal off the table onto the floor, and fed the remaining food to the dog. When Zhang tried to clean the dishes, Schoch threw a pot or bowl at Zhang that struck her on the arm and caused a welt.

According to Schoch, Zhang did not like Lh.'s rapid adjustment to American culture. When Lh. first arrived in the United States when she was 10 years old, she spoke no English, but by the time of trial she could speak better English than her mother. Zhang would become upset when Lh. did not want to speak to her in Chinese. Schoch refused to allow Zhang to speak Chinese to either daughter in his presence. At one time during an argument, Zhang got down on her knees, crying and begging her daughters to speak Chinese to her.

On November 6, 2012 Zhang filed a petition for dissolution. Zhang intended to relocate to California with her daughters a friend had offered to let them live with her in order to help Zhang find a job. Zhang bought a round trip airplane ticket for herself and Lh. to travel to China to visit Zhang's ailing sister-in-law; the older daughter, Lx. had just traveled to China the previous year. Zhang picked up Lh from school to take her to the airport, but Lh. physically resisted going.

Schoch filed a nonparental custody petition that same day and obtained an ex parte restraining order preventing Zhang from removing Lh. from Washington. In his petition for nonparental custody, Schoch alleged that Zhang's parental visitation should be limited due to (1) "[p]hysical, sexual or a pattern of emotional abuse"; (2) "[a] history of acts of domestic violence as defined in RCW 26.50.010(1)";^[3] and (3) "[t]he child has expressed great fear of the mother and has been abused by the mother." Clerk's Papers (CP) at 3, 4. Zhang denied these allegations. The trial court then entered an agreed temporary order, placing Lh. with her mother but allowing Schoch visitation. The trial court also appointed a guardian ad litem (GAL) to investigate and report to the trial court regarding custody and visitation, and ordered the GAL to hold the children's passports.

The GAL investigated the nature of Schoch's and Zhang's relationship with both girls, and reported her findings and recommendations to the trial court. Although Schoch did not adopt either daughter, he actively participated in their schooling and activities, and both girls referred to Schoch as their father during the parties' four year marriage. Lx. showed little interest in rural farm life and maintained a closer bond with her mother. The younger daughter, Lh became very involved with the farm animals and embraced her new life with Schoch. Lh. "developed a strong parent like bond [with Schoch] similar to that of a father-daughter relationship." CP at 43C (Sealed Report of GAL at 3). Lh. expressed a "strong desire to remain with [Schoch]" and continue her life in Grays Harbor.^[4] CP at 43C (Sealed Report of GAL at 3).

The GAL reported that Lh. had repeatedly contacted her complaining about Zhang, but the GAL was not able to confirm any allegations of abuse or threats. The GAL testified that Lh. expressed "concern" "over and over again" about her "fear of being sent back to China." VRP (July 30, 2013) at 91. Schoch alleged that Zhang kicked Lh. and slapped her in the face with a wet towel numerous times. Zhang denied these allegations. According to the GAL's report, neither Child Protective Services nor law enforcement substantiated these allegations after investigating them.

After completing her investigation, the GAL reported allegations that: (1) Zhang inflicted self-harm over Lh.'s refusal to speak to her in Chinese; (2) Zhang made repeated threats to send Lh. back to China; and (3) Zhang attempted to fly to China and take Lh. with her against Lh.'s will, but Schoch stopped Zhang from doing so by obtaining an ex parte temporary restraining order.

The GAL described Lh. as a "typical pre-teen" who "knows what she wants, and she is going to get her own way." VRP (July 30, 2013) at 90. But the GAL also testified that Lh. "never ... indicated a lack of affection for [Zhang] or her older sister, " but instead she had "expressed great concern" for them. VRP (July 30, 2013) at 91. The GAL summarized Lh.'s concerns by stating: "[T]his little girl [Lh.] is very torn. She very much wants to stay here, and she wants her mom to stay here, and her sister to stay here, but she [Lh.] wants to maintain a relationship with Mr. Schoch, even if they [Zhang and Lx.] don't." VRP (July 30, 2013) at 92. The GAL described Lh.'s relationship with her mother as "challenging" in part because Zhang and her older daughter Lx. "cling very tightly to their cultural roots. [Lh.] has pushed some of that away." VRP (July 30, 2013) at 91.

The GAL testified that it would be in Lh.' s "best interests" to "remain... in the Montesano School District and keep ... on with the activities she has been involved in the last three [years]." VRP (July 30, 2013) at 89. The GAL declined to recommend who should be awarded custody of Lh., but said the decision should be based on "facilitating]" the "living circumstances" that the GAL recommended were in Lh.'s best interests. VRP (July 30, 2013) at 89.

Several months before trial, Schoch moved to amend his pleading to add a de facto parentage claim as to Lh. The trial court denied the motion without explanation. On August 9, 2013, after a bench trial, the trial court granted Schoch's petition and awarded him permanent nonparental custody of Lh. and entered a nonparental custody decree, residential schedule, and findings of fact and conclusions of law dissolving the marriage.^[5] In awarding Schoch permanent nonparental custody, the trial court found:

[T]hat the child is flourishing academically, physically, athletically and extracurricularly living in Grays Harbor County and attending Montesano Schools. She is a 4.0 student, is in band, plays traveling team softball, is a member of 4-H, is raising a market steer for County Fair, loves animals, and thoroughly enjoys and embraces the farm and American lifestyle. She has made close friends. She has known Daniel Schoch as her "Daddy" and has had no other father-daughter relationship. The child has expressed concern about the uncertainty of living with the mother. There have been numerous incidents of inappropriate verbal, psychological and physical punishment of the child by the mother and threats of being sent away from the Country for transgressions.

The child's residence with the mother would be an environment detrimental to her continued growth and welfare.

CP at 73 (Finding of Fact (FF) 2.6).

The trial court further found that (1) Zhang had encouraged a parent-child relationship between Schoch and Lh., and that it was in Lh.'s "best interest[s]"^[6] to be placed in Schoch's custody; (2) Zhang "inappropriate[ly] punish[ed]"^[7] Lh.; (3) Zhang "threatened]"^[8] to send Lh. back to China; (4) Zhang attempted to travel with Lh. to China without the trial court's or Schoch's approval; and (5) the trial court had ...