In re Custody of C.W.
| Decision Date | 02 March 2020 |
| Docket Number | 79600-3-I,79533-3-I |
| Court | Court of Appeals of Washington |
| Parties | In the Matter of the Custody of C.W., Minor Child, v. ARLENETHIESSEN, Respondent/Cross-Appellant. MARVIN J. WALTER and ROSEMARY S. WALTER, Appellants/Cross-Respondents, |
UNPUBLISHED OPINION
Arlene Thiessen appeals from an order awarding custody of C.W. to Marvin and Rosemary Walter.[1] She asserts the trial court abused its discretion in finding her currently unfit to parent C.W. based on her alcoholism and recent relapses with alcohol use. For the reasons that follow, we affirm.
Arlene Thiessen is the mother of two children, seven-year-old E.B and three-year-old C.W. Respondents Marvin and Rosemary Walter are the paternal grandfather and step-grandmother of C.W. C.W. and E.B. do not share the same biological father.
Thiessen acknowledges that she struggles with alcoholism and methamphetamine addiction. Prior to 2017, Child Protective Services (CPS) received several reports alleging drug and alcohol abuse and child neglect by Thiessen, all of which were determined to be unfounded. Thiessen nevertheless engaged in alcohol and drug treatment and mental health treatment services at the request of CPS pursuant to these referrals between July 2014 and October 2017.
In February 2017, when C.W. was two months old, his father Kipp Walter passed away unexpectedly. At that time, Thiessen and her children were living with Kipp on his boat at a marina in Tacoma. In April 2017, Thiessen and her children moved into an apartment near the Walters in Skagit County.
On October 16, 2017, Thiessen was arrested for driving under the influence (DUI) with both of her children in the car.[2] She subsequently agreed to place her children in CPS custody for 90 days while she entered into an intensive outpatient treatment program for drug and alcohol abuse. Although Thiessen wanted the siblings to remain together, CPS placed C.W. with the Walters and E.B. in foster care. Thiessen also voluntarily agreed to participate in additional services to address parental issues, to continue receiving treatment from her mental health counselor, and to attend AA meetings.
CPS determined that E.B. and C.W. could be returned to Thiessen after the 90-day voluntary placement agreement was complete. However, on December 8, 2017, the Walters filed a nonparent custody petition for C.W. On December 22, 2017, the court entered a temporary nonparent custody order awarding custody of C.W. to the Walters and allowing Thiessen supervised daytime visitation of three hours once per week. CPS returned E.B. to Thiessen's custody in December 2017. Were it not for the temporary nonparent custody order, CPS would have also returned C.W. to Thiessen's custody at the same time.
Between her DUI arrest in October 2017 and the trial in September 2018, Thiessen had four relapses of alcohol use. In December 2017, she took some sips of beer and then called her sponsor. In April 2018, she bought a small bottle of liquor "took a couple swigs," then self-reported to CPS and her chemical dependency counselor. In June 2018, she drank "[what] could have been vodka" while E.B. was at a skating rink. She did not drink to intoxication, and she self-reported this relapse. In September 2018, a couple of weeks prior to trial, Thiessen consumed two one-ounce bottles of Fireball and a beer while E.B. was at school. Thiessen did not self-report this relapse. It was discovered when Thiessen's chemical dependency counselor, Joanna Farnsworth, spoke with Thiessen on the phone and thought she sounded "emotional." Farnsworth asked Thiessen to walk to her office immediately for an individual session. There, Farnsworth observed that Thiessen appeared to be intoxicated. Farnsworth then asked Thiessen whether she had been drinking, and Thiessen admitted she had. Farnsworth directed Thiessen to contact her sober support network and arranged for her Parent-Child Assistance Program (PCAP) advocate to be present when E.B. returned from school.
The court-appointed guardian ad litem (GAL), Annalise Martucci testified twice at the custody trial. Martucci testified that her pretrial report recommended that C.W. should continue to reside primarily with the Walters at least temporarily with increased visitation for Thiessen. Martucci agreed that "concerns with regard to parental unfitness persist to this day" and expressed "real concern about [Thiessen's] ability to safely supervise both boys at the same time at this point." She predicated her opinion on "the fact that [Thiessen] does not have an ongoing history of being clean," as well as Thiessen's lack of coping skills, her mental and physical health issues, and the stress of watching two children. Martucci also expressed concern about Thiessen's pattern of conflicting statements regarding her drug and alcohol use and her "history of receiving services and then falling back into very dangerous behavior." Martucci did not rule out the possibility that Thiessen would eventually be capable of parenting C.W. in her own home but did not believe she was there yet.
Farnsworth testified regarding Thiessen's September 2018 relapse. On cross-examination, Farnsworth acknowledged that Thiessen had failed to accurately report the last date she used methamphetamines. She also acknowledged that urinalysis had failed to catch any of Thiessen's relapses. Martucci subsequently returned and testified that Thiessen had failed to inform her that she had relapsed in June and September 2018. Martucci learned of these relapses via Farnsworth's trial testimony. Based on that new information, Martucci testified she "would easily say that I believe [Thiessen] is unfit."
Thiessen's CPS caseworker Monica Glausen also testified twice at trial. Glausen initially testified that Thiessen was "doing well with services" and that she did not have any concerns about returning C.W. to Thiessen's care as long as she has a safety plan in place. Glausen stated that she was aware Thiessen had relapsed in December 2017 and "maybe another time." Following Farnsworth's testimony regarding Thiessen's recent relapses, Glausen returned and testified that relapses are an expected "part of recovery" and that this new information did not change her opinion that E.B. and C.W. are safe in Thiessen's care. She further testified that she did not believe Thiessen's relapse placed E.B. at risk because there was a safety plan in place.
After a five-day bench trial, the court awarded custody of C.W. to the Walters. The court entered the following pertinent findings:
The court also reserved jurisdiction to itself to modify the nonparental custody decree without a finding of adequate cause for a major modification as required by RCW 26.09.260 if at some point in the future, the court finds that Thiessen is no longer unfit to parent C.W. The court ordered a six-month review hearing and a one-year review hearing for the purpose of monitoring Thiessen's progress in overcoming her alcohol addiction and determining whether C.W. could be returned to Thiessen's custody. Following trial, Thiessen continued to participate in drug and alcohol treatment with random urinalysis tests, all of which were negative as of July 2019.
The Walters appealed from the trial court's indefinite reservation of jurisdiction, and Thiessen cross appealed the custody determination. Before the Walters submitted their opening brief, this court issued an opinion that obviated the trial court's rationale for reserving jurisdiction. See In re Custody of S.M., 9 Wn.App. 2d 325, 444 P.3d 637 (2019). On October 21, 2019, the court withdrew its jurisdiction over matters of visitation and ordered that Thiessen's visits with C.W. be conditionally unsupervised. The parties subsequently stipulated to the voluntary dismissal of the Walters' appeal, leaving only Thiessen's cross appeal for this court to address.
Thiessen argues that the trial court erred in granting the Walters' nonparent custody petition. She contends that substantial evidence does not support the trial court's finding that she was currently unfit due to alcoholism. The nonparental party bears the substantial burden of showing the parent's current...
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