In re Custody of S.M.

Citation: 444 P.3d 637Docket: No. 78208-8-I

Court: Court of Appeals of Washington; July 1, 2019; Washington; State Appellate Court

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Milton petitioned to modify a nonparental custody order, but the superior court determined he did not provide adequate cause for a hearing. The court applied the adequate cause standard from RCW 26.09.260(1) to nonparental custody modifications. Milton contended this standard was unconstitutional, arguing it denied parents a meaningful opportunity to prove they had corrected the issues leading to the custody order. The court agreed, reversing the initial decision and remanding for a new adequate cause hearing.

The case involved S.M. and A.M., children of Milton and John McCulla, Jr. Both parents had substance abuse issues, and Milton struggled with bipolar disorder. In March 2016, the children's paternal grandparents filed for nonparental custody, claiming both parents were unsuitable. A court-appointed special advocate recommended granting the petition. During the trial on March 20, 2017, Milton did not appear, citing a panic attack as the reason. On April 14, 2017, the court issued a custody order in favor of the grandparents, citing findings that Milton was unfit and that the children would suffer if placed in her care. Evidence included Milton's suicidal ideations, bipolar diagnosis, history of methamphetamine use, multiple psychiatric commitments, and a pattern of domestic violence. The court noted the children were thriving with their grandparents, attending school and medical appointments, and adjusting well in their current living situation.

Milton's contact with her children was limited to three hours of supervised visitation on weekends following a trial court order. She was required to complete domestic violence treatment, undergo a substance abuse evaluation, and participate in mental health counseling. In November 2017, Milton petitioned to modify the custody order, claiming that the mother was compliant with court requirements and that the children no longer needed to live with their paternal grandparents. She provided a declaration stating her bipolar diagnosis and improvements in her life due to medication, including completing an associate degree and maintaining employment.

However, Milton did not complete the required domestic violence treatment and disputed the allegations against her. A superior court commissioner ruled on January 26, 2018, that Milton failed to demonstrate adequate cause for modifying the custody order, emphasizing her noncompliance with the court's requirements and the need to meet the major modification standard due to prior findings of unfitness. The commissioner noted that the modification statute (RCW 26.09.260(1)) did not allow her to seek changes based solely on her improved circumstances within a year of the original order. Milton's request for revision of the ruling by a superior court judge was denied for similar reasons, leading her to appeal the decision.

Chapter 26.10 RCW outlines the procedures for nonparental custody actions. A nonparental custody petition can be filed if a child is not in the physical custody of a parent or if a petitioner asserts that neither parent is suitable. The court must first determine if there is adequate cause for a hearing based on the petition and supporting affidavits. Custody decisions must be made in the child's best interests; however, solely relying on this standard is not sufficient to revoke parental rights. Additional requirements include proving that the parent is unfit or that placement with the parent would harm the child's growth and development, applicable in extraordinary situations.

Once a nonparental custody order is established, modifications can only be made under RCW 26.09, the statute for parental dissolution and residential time allocation. A modification requires evidence of a substantial change in circumstances since the prior order, focusing on the child or the nonmoving party, not the parent seeking modification. The moving party must submit an affidavit with supporting facts, and if adequate cause is not shown, the court will deny the motion without a hearing. Adequate cause necessitates evidence supporting each element required for modification. Notably, if a parent rectifies issues that led to a nonparental custody order, this does not automatically qualify as a substantial change in the child's circumstances. Statutory interpretation is a legal question that is reviewed de novo, with courts required to adhere strictly to the legislature's wording without adding or omitting terms.

Milton argues that changes in a parent's circumstances should automatically result in changes for the child; however, interpreting the statute in this manner would undermine the specific reference to the child's circumstances. The legislature did not include parental circumstances as a basis for major modifications in RCW 26.09.260(1), unlike the related statute for minor modifications, which explicitly allows for changes based on substantial changes in either party's circumstances. The court, referencing Z.C., affirms that the major modification statute intentionally excludes parental circumstances.

In a secondary argument, Milton claims that RCW 26.10.190 is unconstitutional as it infringes on her fundamental right to parent by preventing modifications to nonparental custody orders based on her rectification of parental deficiencies. The interpretation of statutes and constitutional challenges are reviewed de novo. The Fourteenth Amendment's due process clause protects parental rights in child custody matters, a principle upheld by the U.S. Supreme Court and reflected in Washington's public policy, which emphasizes the importance of the parent-child relationship. While the state can intervene when a parent’s actions threaten a child's well-being, a parent's fundamental rights remain intact, even if they have faced custody losses. Washington courts have historically prioritized maintaining family unity in state interventions and have sometimes incorporated special protections into custody laws to balance parental and nonparental interests. Nonparental custody orders are not designed to permanently displace a parent’s rights.

The court distinguishes nonparental custody orders from de facto parentage, stating that such orders grant only temporary custody rights when a suitable legal parent is absent. If a legal parent becomes fit, the nonparent loses the right to maintain a relationship with the child. Custody awarded to a nonparent under RCW 26.10 is inherently temporary and subject to modification, as reiterated in various cases. A nonparental custody order can effectively lead to a permanent loss of a parent's rights, as modifications depend on circumstances outside the parent's control. Due process mandates that parents be afforded a meaningful opportunity to contest nonparental custody orders, especially since these orders stem from findings of a parent's unfitness. The current statute, RCW 26.10.190, is deemed unconstitutional for restricting modifications based only on changes in the child or nonmoving party's circumstances and for requiring that modifications serve the child's best interests. This violates the presumption that a fit parent inherently acts in the child's best interests, similarly to previous rulings that deemed it unconstitutional to base initial custody determinations on such a standard. The court concludes that while conditions may be imposed on the process of regaining custody, modifications should not be denied based solely on best interest considerations.

On remand, the superior court must assess whether Milton has demonstrated adequate cause for a hearing on custody modification, requiring the presentation of new or previously unknown facts indicating a change in circumstances that undermines the original factual basis for the custody order. A nonparental custody order can only be justified if either the parent is deemed unfit or if placing the child with a fit parent would cause actual detriment to the child's growth and development, with these factors being mutually exclusive. The trial court's initial decision relied on both factors, which Milton did not contest, thus establishing a binding precedent. Milton must prove her fitness as a parent and show that her placement would not harm the children’s development. The grandparents can oppose her claims with affidavits or evidence. If the court finds a lack of factual basis for the nonparental custody order, it will vacate the order and may impose appropriate conditions. Milton's request for attorney fees on appeal, based on RAP 18.1 and RCW 26.10.080, is denied, as the trial court previously mandated that each party cover their own fees, and the court found no basis for awarding fees given the parties' needs and ability to pay.

Reversal and remand of the case were agreed upon by Justices Dwyer and Schindler. The appellant, referred to as Carey Milton, had previously completed a one-year domestic violence program, but this occurred prior to the nonparental custody order and lacked the necessary collateral information mandated by the trial court. On May 21, 2019, Washington State enacted Second Substitute Senate Bill (2SSB) 5604, which overhauled the guardianship process by repealing chapter 26.10 RCW. The new statute requires clear and convincing evidence that no parent is willing or able to exercise their powers for a court to establish guardianship. Parents can petition to terminate guardianship if they demonstrate that the statutory standard is not met, unless such termination is against the child's best interests. However, this new law, effective January 1, 2021, does not apply to Milton on remand. Orders issued under the previous chapter remain valid and do not require reissuance. Nonparental custody orders differ from termination of parental rights, which permanently severs the parent-child relationship, as detailed in RCW 13.34.200. Terminated parents may still petition for nonparental custody, indicating that custody does not equate to parentage. A substantial change in circumstances is required to justify custody changes, which are not based on a singular moment but rather a forward-looking assessment of fitness. Courts recognize that custodial changes are significantly disruptive to children and approach such decisions with caution, as noted in In re Marriage of McDole, 122 Wash.2d 604, 610, 859 P.2d 1239 (1993).