In re Custody of P.M.S.
| Decision Date | 09 April 2019 |
| Docket Number | 50665-3-II |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Custody of P.M.S., A Minor Child. PAMELA SCHIMMEL and IRWIN SCHIMMEL, Respondents, and MIA SCHIMMEL, aka MIA STANFILL and LARRY STANFILL, Appellants. |
UNPUBLISHED OPINION
Mia Schimmel appeals several related orders that granted custody of her daughter, PMS, to her parents, Irwin and Pamela Schimmel, and placed conditions on Mia.[1]Mia argues that (1) she is constitutionally entitled to appointed counsel (2) the trial court erred in denying her request for an appointed counsel as an ADA (Americans with Disabilities Act of 1990) accommodation under GR33, (3) she did not receive a trial where she was presumed to be a fit parent, (4) the trial court's orders contain fatal procedural irregularities, and (5) the trial court abused its discretion when it denied Mia's request for attorney fees.
We hold that the trial court did not err in ruling that Mia was not entitled to appointed counsel and did not abuse its discretion in denying Mia's attorney fees. However, we hold that the trial court improperly assumed that Mia was an unfit parent during her trial, and that this improper assumption, in addition to the compounded procedural errors mandate a new trial. Accordingly, we vacate all findings and conclusions regarding Mia's fitness as a parent reinstate a March 2015 temporary order as it relates to Mia and remand for a new nonparental custody trial before a different judge. Further, we award $5, 000 in attorney fees on appeal to Mia.[2]
This nonparental custody petition has been in active litigation since 2013. The procedural history spans almost five years and includes numerous hearings, orders, and a three-phase trial. Mia is the mother of PMS, who was born in 2010. Larry Stanfill, PMS's father, was incarcerated before PMS was born, and remained incarcerated throughout all proceedings involving his parental rights.[3] Mia is the daughter of Irwin and Pamela Schimmel.[4] After PMS was born, Mia would leave PMS in the care of the Schimmels for significant periods of time. Mia suffers from pulmonary arterial hypertension. She historically struggled with drug abuse, specifically methamphetamine. During these proceedings, Mia provided "dirty" urinalysis (UAs) and did not follow through with court ordered drug tests. 3 Verbatim Report of Proceedings (VRP) at 313. With the exception of a 15-month period, PMS resided with the Schimmels. During the time Mia had residential custody of PMS, Mia was often late picking up PMS from preschool and was found to have an unsafe home environment.
In December 2012, Mia left PMS with the Schimmels. In January 2013, the Schimmels filed a nonparental custody petition seeking custody of PMS. In May 2013, the trial court determined that the Schimmels had established adequate cause for hearing the petition, appointed a guardian ad litem (GAL), ruled that primary residential custody of PMS would remain with Mia, and allowed the Schimmels visitation.
In August 2014, the GAL made an unannounced visit to Mia's home. The GAL found "dirty clothes everywhere, food which had been left out for days, and rotten food in the refrigerator." Clerk's Papers (CP) at 332. Rooms were filthy, and the GAL found suspected methamphetamine pipes with residue left out in the open. Mia admitted to the GAL that she had relapsed on methamphetamine.
Following the GAL's visit, the trial court entered a temporary order granting the Schimmels residential custody of PMS. The order also established supervised visitation for Mia through Innovative Services Northwest, provided telephonic visits between Mia and PMS, required Mia to submit to a substance abuse evaluation, hair or nail tests, and UAs, and prohibited all parties from speaking to PMS about the custody dispute.
In December 2014, the GAL issued her report, detailing Mia's temporary custody order violations. The report stated that Mia had failed to complete UAs, failed to provide the results of hair/nail tests, failed to complete a substance abuse evaluation, discussed the custody proceedings with PMS, and missed supervised visits and scheduled phone calls. The GAL also noted that Mia was "out on bail for criminal charges consisting of Identity Theft, Trafficking Stolen Property First Degree and Possession of Stolen Property First Degree for allegedly pawning her mother's jewelry."[5] CP at 25.
In response to the GAL report, the trial court entered an amended temporary custody order on March 6, 2015 (March 2015 order). This order continued to require Mia to undergo random UA testing and to complete a substance abuse evaluation. It also altered Mia's and the Schimmels' phone call and supervised visitation arrangements and replaced an earlier restraining order. The trial court also set the trial date (phase one) on the Schimmels' petition for June 29, 2015.
Phase one of the nonparental custody trial began June 29, 2015. Immediately before phase one began, Mia and the Schimmels reached a CR2A agreement. Their agreement provided that the Schimmels could have custody of PMS, but specifically stated that Mia was not stipulating to being unfit. The CR2A stipulation did not include specific details, but instead, outlined the "broad strokes" of a visitation schedule and drug testing requirements for Mia. 1 VRP at 16. Mia and the Schimmels swore to the general agreement in open court, stating that further details would be worked out shortly thereafter. As a result, Mia and her counsel were excused by the court, and the trial court proceeded with trial regarding only Larry's parental rights.
Following the phase one trial, the trial court ruled that Larry was unfit and granted the Schimmels' petition for nonparental custody. The trial court entered an order containing findings of fact and conclusions of law on August 07, 2015 (August 2015 order). Despite Mia's CR2A agreement that specifically stated she was making "[a]bsolutely no stipulation regarding fitness," the trial court found, "[a]t the beginning of the case, both parents were unfit." 1 VRP at 8; CP at 54.
Moreover, the trial court also made findings of fact to support limitations on Mia's visitation, even though Mia did not stipulate to those findings in her CR2A agreement. The trial court found: CP at 56. The court order also incorporated the visitation schedule from the March 2015 order "until further order of the court." CP at 56. And the trial court continued a restraining order against Mia based on the pending no contact order in the criminal case. Mia did not attend the presentment of the August 2015 order, however, her attorney approved and signed the order.
By October 2015, Mia and the Schimmels were unable to reach agreement on the specifics of the CR2A agreement. Consequently, the trial court entered an order that struck the CR2A agreement, and set a new trial date (phase two) to address the final terms of the agreed custody order and the terms of Mia's visitation.
At a trial readiness hearing in May 2016, Mia moved under CR 60 to vacate the August 2015 order. Mia argued that she did not assent to the August 2015 order because she did not sign it. Mia also argued that, because the parties had not agreed she was unfit, it was improper for the court to make a finding that Mia was unfit. Despite that the CR2A agreement specifically excluded a determination of fitness and that trial court had previously struck the CR2A agreement, the court ruled that Mia's unfitness had been agreed to by the parties. Thus, the court denied the motion and stated that the upcoming trial was to determine Mia's visitation rights only.
Phase two of the trial began June 20, 2016. Before the first witness was called, the trial court reiterated, "[I]t appeared to me that the parties had resolved the issue of custody and, within that, the underlying unfitness [or] actual detriment."[6] 2 VRP at 183. During phase two of the trial, the guardian ad litem (GAL) testified to Mia's continued noncompliance with the March 6, 2015 temporary order. According to the GAL, Mia had not provided her drug treatment results, had two positive drug tests in 2015, discussed the custody dispute with PMS during visitation, allowed contact between PMS and Larry, and missed visits and phone calls.
Pamela testified to the difficulties of the visitation schedule. Mia testified, describing her drug treatment and explaining the positive UA results were due to her weight loss medication. She also discussed the Schimmels' control over visitation and their noncompliance with the visitation order by canceling or restricting visits and phone calls. Further, Theresa Spencer, Mia's sister, testified that Mia showed up to one of PMS's activities unannounced and wanted to take her for ice cream, which the Schimmels did not allow.
Dr Landon Poppleton, a psychologist, conducted a psychological evaluation of Mia, and his report was admitted at trial. Dr. Poppleton's report concluded that Mia was on a positive path regarding drug abuse, but the resentment and the family power dynamics required a case manager and clear reunification plans. Dr. Poppleton also testified. He stated that much of his information came from Mia's self-reports, and he acknowledged that Mia had not been forthcoming about her...
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