Custody of Stell, In re

• Decision Date: 18 December 1989
• Docket Number: No. 22993-1-I,22993-1-I
• Citation: 56 Wn.App. 356,783 P.2d 615
• Parties: In re the CUSTODY OF: Nathan Thomas STELL, A Minor Child. Bonnie STELL, Appellant, v. Thomas STELL, Respondent.
• Court: Washington Court of Appeals

Page 356

56 Wn.App. 356

783 P.2d 615

In re the CUSTODY OF: Nathan Thomas STELL, A Minor Child.

Bonnie STELL, Appellant, v. Thomas STELL, Respondent.

No. 22993-1-I.

Court of Appeals of Washington,

Division 1.

Dec. 18, 1989.

Malcolm L. Edwards, Edwards & Barbieri, Seattle, for appellant.

William Garnett, Oroville, for respondent.

PEKELIS, Judge.

Bonnie Stell appeals from an order of the Superior Court awarding custody of her nephew, Nathan Stell, to Thomas Stell, Nathan's biological father. She contends that the trial court applied the wrong standard in evaluating her petition for custody of Nathan. She further contends that even under the standard applied by the trial court, it erred in ignoring uncontroverted expert testimony that placement with Tom would be detrimental to Nathan. Finally, Bonnie contends that the trial court erred in refusing to reconsider its decision, refusing to allow further testimony and refusing to appoint a guardian ad litem for Nathan. We reverse and remand.

I.

Nathan Stell was born on November 5, 1981 to Tom and Deborah Stell. Tom and Deborah separated in July 1982 when Nathan was 8 months old. For the first 2 or 3 months of the separation, Tom and Deborah shared custody of Nathan, each spending equal amounts of time with him. Tom stopped visiting Nathan when Deborah's boyfriend began threatening him.

When Tom was unable to work out a visitation schedule with Deborah, Bonnie Stell, Tom's sister and Nathan's aunt, intervened. In January 1984, Bonnie successfully arranged to have Nathan visit at her home. Tom was then able to visit with Nathan at Bonnie's home. He later resumed regular visitations in April 1984.

Tom initiated a dependency proceeding in August 1984 after finding bruises on Nathan. Pursuant to court order, Nathan lived with Tom's parents, Bruce and Betty Stell, during the pendency of this proceeding. Evidence presented at the dependency hearing indicated that Nathan had been physically and sexually abused while living with Deborah and her boyfriend. In February 1985, Tom was awarded custody of Nathan, who was then 3 years old.

Tom, then 33 years old, was marginally employed in Seattle. Nathan continued to live with his grandparents in Arlington, apparently because Tom did not make enough money to care for Nathan himself, and because Nathan's therapist was in Arlington.

Tom moved in with his parents and Nathan in May 1985 in order to begin attending school. He continued residing with them until April 1986, when he graduated from school and began working. Tom's work schedule consisted of five consecutive 24-hour shifts followed by 5 days off. Due to Nathan's need for consistent therapy and Tom's work schedule, Nathan continued to reside with his grandparents.

In June 1986, when Nathan was 4 1/2 years old, Nathan, Tom and Tom's parents visited Bonnie and her husband in California, where they had moved in December 1984. Nathan was not progressing in his therapy, and Bonnie believed that he might do better with a therapist she had located in California. Tom met the therapist and agreed to let Nathan stay. Bonnie and her husband had previously expressed a wish to assist Tom in caring for Nathan, and assumed full financial responsibility for Nathan at this time.

While in California with Bonnie, Nathan's behavioral problems diminished and he ceased to need therapy. Nathan began calling Bonnie "Mom" and uncontroverted expert testimony indicated that she became his psychological parent. During this time, Bonnie requested joint custody of Nathan. Tom refused. Tom visited Nathan in California once in the 13 months Nathan was there and talked with him on the telephone on other occasions.

Bonnie separated from her husband in July 1987 and moved back to Washington with Nathan. Nathan was then 5 1/2 years old. Although Nathan continued to reside with Bonnie, he also spent several nights a month with his grandparents. The actual number was disputed.

In September 1987, Tom moved to Eastern Washington to work on a farm owned by three elderly uncles. He returned to visit Nathan every 2 or 3 weeks and testified that he planned to bring Nathan over to Eastern Washington to live at some point. He felt he was getting back on his feet and was ready to begin taking responsibility for Nathan's care. Tom was then 36 years old.

Family conflict over custody of Nathan escalated after Bonnie returned to Washington. One evening in January 1988, Bonnie again requested that Tom give her joint custody of Nathan. Tom became very angry and refused. The next day, Bonnie went to her parents' home to pick up Nathan, who had spent the night there. When Tom refused to let her take Nathan, Bonnie became very upset and had a physical confrontation with her father.

Shortly thereafter, Bonnie filed a third-party custody action seeking custody of Nathan. The trial court awarded Bonnie temporary custody, allowing Tom visitation rights on alternate weekends. Nathan was 6 years old at that time.

Bonnie contacted Dr. Steven Taylor, a clinical psychologist, and asked him to mediate the conflict between her and her family. Bonnie and her parents had two sessions with Dr. Taylor, after which Bonnie continued individual therapy with Dr. Taylor. Dr. Taylor saw Nathan in March 1988 and testified at the custody hearing that he was not functioning well at that time. Sometime after Dr. Taylor first saw Nathan, the court appointed Dr. Barry Nyman, also a clinical psychologist, to evaluate the Stell family and provide the court with a recommendation regarding Nathan's custody.

When Nathan had a violent emotional outburst at school in June 1988, Bonnie asked Dr. Taylor to see Nathan again. Dr. Taylor did so after consulting Dr. Nyman. Dr. Taylor reported that Nathan was under acute emotional stress due to the conflict between his father and his "mom" Bonnie. He advised that a break in visitations with Tom would be in Nathan's best interests.

In July 1988, the court entered an order approving Nathan's being placed in therapy with Dr. Elizabeth Robinson. The order provided that all contacts between Nathan and Dr. Robinson were to be strictly and absolutely privileged and that she was not to be called as a witness in the custody dispute. The court also suspended in-person visitations between Tom and Nathan. Telephone visitations were permitted, but Tom testified that he stopped calling when he learned that the calls upset Nathan.

The custody trial was held in late July 1988. Tom testified that if Nathan was left in his custody, he would keep his present job rather than move to Eastern Washington, would keep Nathan in therapy and would obtain an appropriate residence for himself and Nathan. At the time of the hearing, Tom was employed as a nurse's aide, a position he had held for approximately 5 months. He did not yet have an appropriate residence for Nathan.

Dr. Nyman testified at the custody hearing and his report was admitted in evidence without objection. In Dr. Nyman's opinion, placing Nathan with Tom would be detrimental to Nathan. Based on numerous detailed considerations, Dr. Nyman concluded that Tom was unable to meet Nathan's special need for stability and consistent parenting. Dr. Nyman reported in part:

It appears that Nathan has suffered inconsistent and, at times, abusive parenting in his young life.... The most constructive period for Nathan was the year he lived with Bonnie in California and received therapy and her consistent support.... Bonnie has demonstrated her commitment to Nathan and his special needs. Tom, no doubt, loves Nathan, and while his actual parenting has been indecisive and inconsistent, he has attempted to provide Nathan with the best that his family has had to offer. Now Tom says that Nathan "needs his dad" and believes that he can provide for Nathan's security simply by taking custody of the child. Tom does not see that Nathan has been damaged so severely by his early relationship with Deborah, that extraordinary measures to provide security and stability are required now to mitigate those formative experiences. While Tom, Bonnie and their parents have all attempted to provide Nathan with emotional security through the love and care of his extended family, it is apparent that Nathan needs more to adjust satisfactorily--he needs the stability of a consistent parent. Bonnie can provide that consistency and thus far only she has provided Nathan with the consistency required for his adequate adjustment.... It appears essential for Nathan's recovery now that he return to the consistent and stable parenting which Bonnie provided for him in California.

The day after the hearing ended, the court issued a memorandum decision denying Bonnie's petition for custody of Nathan. The court ruled that Tom had a constitutional priority right to custody of Nathan, and that Bonnie had failed to establish that Tom was unfit or unsuitable. The memorandum decision did not address the issue of whether placing Nathan in Tom's custody would be detrimental to Nathan's growth and development.

Before the court entered its written findings of fact and conclusions of law, Bonnie moved for reconsideration and for appointment of a guardian ad litem. Her motion was based on a letter to the court from Dr. Nyman and a letter dated August 8 from Dr. Robinson, Nathan's therapist. In her letter, Dr. Robinson stated that:

I feel very strongly that it is not in Nathan's best interests to change custodial parents at the present time. Bonnie Stell is his psychological mother and Nathan is extremely attached to her. Nathan has a long history of disordered parenting and another change of residence at this time will be extremely detrimental to his emotional well-being.

Dr. Nyman's letter essentially restated the opinion he had expressed at trial.

The court refused to reopen and signed findings of fact and conclusions of law presented by Tom's attorney on August 19, 1988. At the request of both parties, he...