In re Custody of A.C., 22930-1-III.

• Citation: 137 Wn. App. 245,153 P.3d 203
• Decision Date: 13 February 2007
• Docket Number: No. 22930-1-III.,22930-1-III.
• Parties: In re the Custody of A.C. David N. and Anita B., Respondents, v. Holly Marie C., Appellant.
• Court: Court of Appeals of Washington

153 P.3d 203

137 Wn. App. 245

In re the Custody of A.C.

David N. and Anita B., Respondents, v. Holly Marie C., Appellant.

No. 22930-1-III.

Court of Appeals of Washington, Division 3.

February 13, 2007.

Andrea M. Poplawski, Center for Justice, Spokane, WA, for Appellant.

David James Crouse, Spokane, WA, for Respondents.

SCHULTHEIS, J.

¶ 1 Anita B. and David N. were foster parents for A.C. during a parental rights termination proceeding in Montana. Before they could finalize adoption of A.C., the Montana Supreme Court reversed the termination and A.C.'s mother — Holly C. — took him to Washington.¹ Anita and David then filed a petition for nonparental custody in Spokane County Superior Court. In granting their petition, the trial court noted that Holly was not unfit, but that continued placement with her would detrimentally affect A.C.'s development. A.C. now lives in Montana with Anita and David. His mother has visitation rights and pays Anita and David child support.

¶ 2 Holly appeals, contending the Spokane County Superior Court did not have subject matter jurisdiction over the custody petition and erred in considering the hearsay statements of A.C., the report of the guardian ad litem (GAL), and the conclusions of the mental health assessor. She also contends the trial court applied the incorrect "best interests of the child" standard for custody. Finding that the Washington court correctly asserted subject matter jurisdiction over this matter, did not abuse its discretion in considering the evidence, and applied the more stringent standard appropriate for nonparental custody decisions, we affirm.

FACTS

¶ 3 The Montana Department of Health and Human Services (DPHHS) first became involved with Holly in July 1997, when she was 14 years old, pregnant, and caught shoplifting for baby clothes. Holly was incarcerated for drug-related charges at the time, and was sent to live with a friend of the family. A.C. was born in August 1997. His biological father was deceased. Over the next couple of years, he and Holly lived in foster care, with a relative, on their own, and in a group home. During this period, DPHHS received reports that Holly occasionally became frustrated with A.C. and treated him roughly (including a report that she bit him in the face). She also failed to seek medical care for a lump on A.C.'s chest. Based on these reports, DPHHS obtained an order for temporary investigative authority (TIA) over Holly and A.C. and petitioned for temporary legal custody of Holly as well as of A.C.

¶ 4 Holly and A.C.'s placement in a Helena group home treatment facility in February 1999 was not successful. On several occasions, Holly refused to participate in ordered counseling sessions and was reported to have neglected or mistreated A.C. In June 1999, DPHHS removed A.C. from Holly's care and placed him with Anita and David as foster parents. Eventually, DPHHS petitioned for permanent legal custody of A.C. and termination of Holly's parental rights. At this point, the court appointed counsel to represent Holly during the termination proceedings. Holly's parental rights were terminated by court order in September 2000 and Anita and David initiated adoption proceedings. Holly appealed the termination.

¶ 5 In December 2001, the Montana Supreme Court reversed, concluding that due process required appointment of counsel during the formulation of Holly's treatment plan. In re A.F.-C., 2001 MT 283, 307 Mont. 358, 370, 37 P.3d 724. A.C. continued to live with Anita and David until May 2002 while Holly voluntarily participated in a TIA transition program for reunification with her son. She also obtained her GED and completed a 75-hour nurse aide certification. The Montana DPHHS terminated the TIA in April 2002 when Holly fulfilled all the requirements of her treatment plan. In the letter informing Holly of the dismissal of the TIA, a representative of DPHHS stated, "You cooperated fully with the Department and the transition was as successful as could be expected considering the obstacles presented. I hope you and [A.C.] continue to do well." Clerk's Papers (CP) at 255.

¶ 6 Soon after A.C. was returned to Holly's care in May 2002, she moved with him to Spokane. She allowed Anita and David visitation with A.C. roughly monthly until September 2002, when she decided to prevent contact because A.C. was defiant when he returned from visits with them. A.C. entered kindergarten in September and reportedly did well at school.

¶ 7 In early October 2002, the Spokane County Child Protective Services (CPS) received an anonymous call from someone who claimed that A.C. was being punched and thrown around by his violent mother. The caller claimed that Holly had extensive involvement with Montana's child protective services and "wasn't ever interested in parenting but was interested in winning in court." CP at 263. The caller also claimed that immediately after A.C. was returned to Holly "on a technicality," she fled from Montana. CP at 284. A letter from Anita and David to the Spokane office of the Washington Department of Social and Health Services (DSHS) that same month stated that A.C. had been returned to Holly "due to a legal technicality." CP at 266. They offered to continue providing "foster/adoptive care" to A.C. "should the need arise." Id.

¶ 8 DSHS began an investigative assessment of Holly in October 2002. A case worker called Holly's Montana social worker, who explained Holly's DPHHS history and opined that Anita and David were the ones who called with the anonymous allegations of abuse. According to the social worker and a supervisor at DPHHS, the foster parents were vindictive because A.C. had been returned to his mother, and they became even more upset when Holly stopped the monthly visits. After a few weeks of investigation, the DSHS case worker concluded that although A.C. was still defiant with Holly and did not believe she was his mother, he was in no danger of abuse and should be fine with continued counseling. DSHS ended its service in late October, finding little or no risk. However, Holly did not provide A.C. with the recommended counseling.

¶ 9 On October 29, 2002, Anita and David filed a petition in Spokane County for nonparental custody of A.C. The petition alleged that Washington had jurisdiction as the home state. It also alleged that Holly was not a suitable custodian and requested limited parental visitation because Holly had engaged in the following conduct: "Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions. Physical, sexual or a pattern of emotional abuse of the child." CP at 5. Holly failed to obtain counsel or to respond to the petition and a default judgment was entered against her in December 2002. She then hired an attorney, who entered a notice of appearance and successfully moved to vacate the default judgment. Her response to the petition for nonparental custody admitted the assertion of Washington jurisdiction.

¶ 10 In March 2003, Mary Ronnestad was appointed A.C.'s GAL. Also that month, Anita and David moved for a temporary order of visitation and for a bonding and attachment assessment. The trial court granted their motion and ordered counseling for A.C. with therapist Carol Thomas, who was recommended by Ms. Ronnestad.

¶ 11 Holly's attorney withdrew in early August 2003. Later that month, Anita and David moved for a temporary order placing A.C. with them pending trial. On August 29, the trial court ordered temporary custody of A.C. with Anita and David in Montana and set out a schedule of visitation for Holly.

¶ 12 Holly obtained new counsel through the Spokane Center for Justice in October 2003 and successfully moved to continue trial beyond its original date of October 20. She moved to dismiss the nonparental custody petition in January 2004, arguing for the first time that Washington did not have subject matter jurisdiction because Montana was the home state and had continuing jurisdiction over A.C.'s custody. The motion was denied.

¶ 13 After trial in February 2004, the court granted residential custody of A.C. to Anita and David with scheduled visitation for Holly. Although the trial court did not find that Holly was an unfit parent, it stated that the evidence was "very clear that continued placement with the mother would detrimentally affect [A.C.'s] growth and development." CP at 465. This appeal timely followed.

SUBJECT MATTER JURISDICTION

¶ 14 Holly first challenges the Washington superior court's subject matter jurisdiction over the nonparental custody petition. She contends Montana, not Washington, was A.C.'s home state at the commencement of the action, and further argues that Montana had continuing jurisdiction over A.C.'s custody. Anita and David respond that Holly consented to Washington's jurisdiction and waived this issue in her response to the petition.

¶ 15 Washington superior courts have general jurisdiction and lack subject matter jurisdiction only when expressly denied. In re Marriage of Thurston, 92 Wash. App. 494, 498, 963 P.2d 947 (1998). Subject matter jurisdiction is the court's authority to hear and determine cases within a particular class of actions. Id. at 497-98, 963 P.2d 947. Lack of subject matter jurisdiction renders the superior court powerless to pass on the merits of a case. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit County, 135 Wash.2d 542, 556, 958 P.2d 962 (1998). Contrary to the argument of Anita and David, however, subject matter jurisdiction cannot be conferred by the consent of the parties. Wampler v. Wampler, 25 Wash.2d 258, 267, 170 P.2d 316 (1946); In re Custody of R., 88 Wash.App. 746, 762, 947 P.2d 745 (1997). Although parties may waive their right to assert lack of personal jurisdiction, they may not waive subject matter jurisdiction. Skagit, 135 Wash.2d at 556, 958 P.2d 962. "Any party to an appeal . . . may raise the issue of lack of subject...