Grieco v. Wilson
| Decision Date | 02 June 2008 |
| Docket Number | No. 59494-0-I.,59494-0-I. |
| Court | Washington Court of Appeals |
| Parties | Vito and Yasuko GRIECO, Respondents, v. Sachi T. WILSON, Appellants. |
Patricia S. Novotny, Nancy Hawkins, Seattle, for Appellants.
Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Cynthia B. Whitaker, Law Offices of Cynthia B. Whitaker, Seattle, for Respondents.
¶ 1 Under RCW 26.10.032, in order to establish adequate cause to proceed in a nonparental custody action, the party seeking custody must establish that the child is not in the physical custody of one of the parents or that neither parent is a suitable custodian. In addition, RCW 26.10.032 also requires the party seeking custody to set forth specific facts that if proved would show that either the parent is unfit or placement with the parent would result in actual detriment to the child. In this nonparental custody action, the father contends the trial court erred in determining that the grandparents established adequate cause based solely on the fact that the children are not in his physical custody. Because the trial court erroneously interpreted the requirements of RCW 26.10.032, we reverse and dismiss the grandparents' request to establish nonparental custody under RCW 26.10.032.1
¶ 2 JoAnn Grieco and Sachi Wilson married and had two children, E.A.T.W. and E.Y.W. Their first son, E.A.T.W. was born in 1990. When their second son was born in 1995, JoAnn was diagnosed with breast cancer and underwent surgery and treatment. After the cancer returned in 2000, JoAnn underwent additional surgery and treatment. In August 2002, JoAnn and Wilson separated. Wilson moved out of the family home but continued to have contact with the boys and stayed involved in their lives. In 2003, Wilson began a relationship with a woman he had known for a number of years, Claire Ramsey.
¶ 3 In the summer of 2003, JoAnn's parents, Vito and Yasuko Grieco, moved in with JoAnn in order to take care of her while she went through cancer treatment and to help take care of the boys. According to Wilson, after JoAnn's parents moved in, he was rarely able to spend time with the boys. After JoAnn recovered from the treatment and her parents moved out, JoAnn and Wilson reached an agreement that allowed him to spend more time with the boys.
¶ 4 In September 2003, Wilson and Ramsey moved to San Diego, California. In the summer of 2004, Wilson filed for dissolution of the marriage. When JoAnn had another recurrence of cancer, Wilson decided to not pursue the dissolution. JoAnn's parents moved back in with JoAnn in order to take care of her and the boys. Thereafter, Wilson tried with limited success to make arrangements with JoAnn and her parents to spend time with the boys. In late October 2006, JoAnn died.
¶ 5 In her will, JoAnn included a specific provision stating it was her desire that her parents raise the boys and authorizing the payment of legal fees.
I understand that if my husband survives me, he would normally be the Guardian of my children. I believe that he has already abandoned my children, and it is my strong wish that he decline to have custody of my children and allow my chosen Guardians to serve. If he does not decline to serve, then it is my strong wish that the court find that he is not fit to have custody of my children, and that it is in the best interests of my children for my chosen Guardians to have custody of my children. I expressly authorize that the personal representative of my estate use funds from my estate, and the trustee of the Children's Trust use funds from the trust, to pay any legal expenses associated with carrying out my wishes in his regard.
¶ 6 To provide stability and minimal disruption after JoAnn died, Wilson agreed the boys should continue to live in the family home with JoAnn's parents. In November, Wilson prepared and signed a notarized "Authorization for Medical Care of [E.A.T.W. and E.Y.W.]" to allow the Griecos to make all medical care decisions regarding the boys. In February 2005, Wilson also signed an "Authorization for Schools and Activities," which was acknowledged by the Griecos.2 But the authorization specifically states that it should not be construed as a relinquishment of the father's rights as a parent.
The authorization granted herein is not to be construed by the Griecos or their representatives and agents as any forfeiture or derogation of the father's parental rights to, and control of, the children, and it is not to be used by the Griecos in any judicial proceeding regarding [E.A.T.W. and/or E.Y.W.] in which the father is a party to such proceeding.
¶ 7 In February 2006, Wilson and the Griecos entered into an "Agreement Regarding the Welfare and Residential Placement of [E.A.T.W. and E.Y.W.]."3 In the agreement, Wilson states that given the present circumstances, the children should continue to live with the grandparents. But because the parties expressly agreed that it is in the best interests of the boys to have regular contact with Wilson, the agreement addresses the means for facilitating communication with the boys and scheduling time with them, including vacations and school breaks.
¶ 8 In October 2006, the Griecos filed a petition to establish de facto parentage or, in the alternative, nonparental custody under chapter 26.10 RCW. As to nonparental custody, the petition alleged the boys were not in the physical custody of either parent and had been in the sole custody of the Griecos since the death of their mother. The petition also cites the February 2006 agreement with Wilson and stating that the parties agreed the children should live with the grandparents. The petition requests an order finding adequate cause to proceed with the nonparental custody action. The petition also requests reasonable visitation for Wilson, child support, and an award of the tax exemptions.
¶ 9 The Griecos filed a motion and declaration asking the court to find adequate cause to proceed with the nonparental custody action. The Griecos' declaration in support of the motion states that their daughter died in October 2004, Wilson moved to California in September 2002, and they have cared for the boys since July 2003. The Griecos also point to the medical and school authorizations and Wilson's 2006 agreement that the children should live with them. Wilson filed a declaration in opposition to the motion to find adequate cause, asserting his parental rights to the boys. Wilson states that after JoAnn died, he agreed the boys should continue to live with their grandparents for a while but not permanently.
¶ 10 A hearing on the Griecos' motion to find adequate cause was held before a superior court commissioner in January 2007. The commissioner found that the Griecos established adequate cause for the nonparental custody action "based on the fact that the children are in the physical custody of the grandparents and have been for a few years and it would be detrimental to remove them from the grandparents' care." The commissioner scheduled a trial for September 10.
¶ 11 Wilson filed a motion to revise the commissioner's decision. In opposition, the Griecos argued that the fact that the children were not in the physical custody of the father was sufficient to establish adequate cause for trial.
The children are not in the physical custody of either parent, which alone is sufficient adequate cause for the third party custody action to go forward. In addition, however, the petitioners have made a prima facie case that the father is not a suitable custodian, in part because of the long time the children have been left with the petitioners....4
¶ 12 The superior court agreed with the Griecos and denied Wilson's motion to revise the commissioner's decision based on the conclusion that the "[c]ourt only needs to find, under [chapter] 26.10[RCW], that [the] children are not in the custody of parents to find adequate cause." The order also states that because the "[c]ourt cannot determine issues based on written materials[,] trial is necessary." Wilson filed a motion for discretionary review of the court's order. On June 21, 2007, a commissioner of this court issued a ruling granting Wilson's motion for discretionary review.
¶ 13 On July 3, the Griecos filed a motion and declaration in superior court asking the court to supplement the adequate cause findings in the nonparental custody action. For the first time, the Griecos alleged that Wilson had abdicated his parental role and that placement of the boys with him would result in actual detriment. The Griecos admitted they had not previously alleged actual detriment to the boys. The Griecos asserted that based on Wilson's argument in his motion for discretionary review, Wilson filed a motion to strike the request to supplement the findings and the Griecos' declaration. The superior court commissioner granted Wilson's motion to strike and imposed sanctions against the Griecos for failure to follow the case schedule. The Griecos then filed a motion to revise the commissioner's decision. On August 9, the superior court denied the motion to revise the commissioner's decision except as to the award of sanctions.
¶ 14 On August 14, we denied the Griecos' motion to modify the ruling granting discretionary review.
¶ 15 On August 15, the Griecos filed a supplemental statement of arrangements designating the transcript of the August 9 hearing in superior court denying the Griecos' motion to supplement the court's findings of adequate cause in the nonparental custody action. Wilson filed a motion to strike the August 9 report of proceedings. A commissioner of this court referred the motion to strike to ...
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