In re Custody of SHB

• Decision Date: 18 August 2003
• Docket Number: No. 50681-1-I.,50681-1-I.
• Citation: 74 P.3d 674,118 Wash.App. 71
• Parties: In re the CUSTODY OF S.H.B. (DOB: 11/19/92). Gail M. Luby, Appellant, v. Beth Da Silva and Lisa Sherman, Respondents.
• Court: Washington Court of Appeals

74 P.3d 674

118 Wash.App. 71

In re the CUSTODY OF S.H.B. (DOB: 11/19/92).

Gail M. Luby, Appellant, v. Beth Da Silva and Lisa Sherman, Respondents.

No. 50681-1-I.

Court of Appeals of Washington, Division 1.

August 18, 2003.

Reconsideration Denied September 25, 2003.

Margaret K. Dore, Attorney at Law, Seattle, WA, for Appellant Gail Luby.

Stephen Brown, pro se.

Rachel Pierce, pro se.

Michael David Hunsinger, Hunsinger & Associates Sutkus & Kestle, Seattle, WA, for Respondents.

Elizabeth Kaye Selleck, Attorney at Law, Karma L. Zaike, Michael W. Bugni & Associates, Seattle, WA, for Family Law Casa Program.

BAKER, J.

S.H.B. lived with her paternal grandmother, Gail Luby, for six years until Luby was arrested for growing a large quantity of marijuana. Beth DaSilva, the maternal grandmother, removed the child and placed her with the child's godmother, Lisa Sherman. Both Luby and Sherman brought actions for custody. Following a trial, the court decided that the best interests of the child would be served if she resided with Lisa Sherman. Luby appeals, arguing that because she was the child's effective parent, the court was required to find actual detriment to the child before removing her from Luby's household. Luby also argues that even under a best interest of the child standard, there was insufficient nonhearsay evidence to change the child's residential placement. Finally, Luby challenges the court's reliance on the parental access evaluation, which recommended placement with Sherman. But Luby did not object to the parental access evaluation either before or at trial. And the standard in nonparent custody actions under the pertinent statute is the best interest of the child. Accordingly, because the trial court's decision is supported by substantial evidence, we affirm.

I

S.H.B. has lived with her paternal grandmother, Gail Luby, since she was two years old. Luby began caring for S.H.B. immediately after S.H.B. had heart surgery. The parents both suffered from chronic drug addiction, and could not provide a stable living environment. The father has also been diagnosed with bipolar disorder, and the mother is an alcoholic. S.H.B. has had sporadic contact with her mother and fairly regular contact with her father.

Shortly before the child's eighth birthday, Luby was arrested for growing a large quantity of marijuana. Luby admitted to growing marijuana since 1997. Luby also admitted to smoking marijuana, using it to make oils, giving it to friends, and supplying it to adults at S.H.B.'s birthday parties. Luby stated that the last time she smoked marijuana was the day the marijuana grow operation was discovered in her home. On that night, officers seized 33 mature marijuana plants, 125 starter plants, cash, and small packaged amounts of marijuana. The estimated value of the 33 mature marijuana plants was $66,000. The lead officer in the raid testified that Luby told him she sold marijuana for $250 to $300 an ounce. Luby was then arrested and pled guilty to manufacturing an illegal drug.

DaSilva did not express any concerns about S.H.B.'s living arrangements until after Luby's home was raided and Luby was arrested in the fall of 2000. DaSilva then began to more closely observe what was going on at Luby's house. Shortly after Luby was released from jail, DaSilva witnessed people smoking marijuana in Luby's house when she dropped S.H.B. off after a scheduled visit.

Luby's home was a boarding house. Luby and S.H.B. lived on the second floor, while three male boarders lived on the first floor. All of the living spaces, including the kitchen, living room, and dining room, were common areas. One of the boarders in the home was Luby's son, Shamus Luby. Luby described Shamus as a practicing alcoholic who was also diagnosed with bipolar disorder. Shamus Luby has not seen a doctor or taken medication for his disorder for four years. Another boarder, Marty Bennett, testified that Shamus smoked marijuana in Luby's home after her arrest. Luby admitted that she did not use any kind of interview or application process when bringing boarders into her home.

During the trial, Gail Luby testified about her relationship with her partner Harry Bloss. She acknowledged that Bloss suffers from posttraumatic stress disorder and that he smokes marijuana on a daily basis to cope with his psychological problems. She also admitted that Bloss is prone to violent episodes that leave him hospitalized. Luby and S.H.B. lived with Bloss for a short period of time after Luby was released from jail. During this time, Luby would allow Bloss to drive S.H.B. to school while he was apparently under the influence of marijuana.

Before trial, the court appointed a volunteer Court Appointed Special Advocates Guardian Ad Litem (GAL) for the child. Later, the court appointed Dr. Marsha Hedrick to conduct a parenting access evaluation and make recommendations on custody. Both Dr. Hedrick and the GAL prepared reports that were submitted into evidence without objection, and used by the court in reaching its decision.

As part of her parenting access evaluation, Dr. Hedrick administered psychological tests to each party. She found Luby to be defensive because of her tendency to convert emotional distress into physical symptoms. She also found that Luby displayed elevated manic and narcissistic tendencies which manifest themselves as erratic, impulsive, and hyperactive behavior. Dr. Hedrick explained in her report and at trial that her personal observations of Luby's behavior supported her findings from the psychological tests. She also testified that persons with these attributes are not very good at being aware of other people's feelings and have a tendency to be manipulative. According to the evaluator, Luby's personality and these characteristics manifested themselves in the environment Luby provided for S.H.B.:

I thought [Gail Luby] had little sophistication and little awareness, little empathy and in particular with regard to what [S.H.B.] needed, both emotionally and in terms of protection that most children get protected from more than [S.H.B.] does.¹

Dr. Hedrick also testified that although the child appeared to be well adjusted, she in fact was not receiving the nurturing she needed, and her disposition masked her needs:

She watches carefully for what people around her need, and she supplies it. And that's all well and good, certainly serves children well. They are well regarded, well liked by adults because they are so compliant and so attentive. But the reality is it's often a pattern that's also associated with someone whose needs aren't being met as a child.²

Both in her report and at trial, Dr. Hedrick concluded that Luby's household presented an increasingly questionable and potentially detrimental environment as S.H.B. approached adolescence.

The first GAL report was prepared six months prior to the parenting access evaluation. The GAL observed that at Luby's home "[t]here is a quick pace"³ and that there is "a large group of people constantly coming and going."⁴ Her report also acknowledged that Luby's children "have substantial involvement with the law,"⁵ and expressed concern that Luby did not understand the impact that her actions and associations had on S.H.B. Nevertheless, the GAL initially recommended that S.H.B. remain with Luby.

After Dr. Hedrick's report, the GAL revised her recommendation based on risks identified in the report, including the continued use of marijuana by Luby's partner, lack of supervision or supervision by adults with criminal or chemical dependent histories, and the adult-focused atmosphere of Luby's household. She also testified that "[Luby] doesn't realize the impact that adults can have on a child, especially as she grows into being a teenager."⁶ And she cautioned that Luby's household "doesn't seem to me [to be] an appropriate place for her to grow into, to be a teenager."⁷

At trial, neither Harry Bloss nor Shamus Luby testified. The trial court awarded residential placement to Sherman.

II

In matters dealing with the welfare of children, trial courts are given broad discretion.⁸ A trial court's decision involving custody and visitation rights will not be disturbed on appeal unless the court manifestly abused its discretion.⁹ A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.¹⁰ We will uphold a trial court's findings of fact if they are supported by substantial evidence.¹¹

Nonparent Custody Actions Are Governed by RCW 26.10.030

RCW 26.10.030 allows nonparents to petition for custody of a child. The statute requires that a nonparent petitioner file the action in the county where the child lives and show either that the child is not in a parent's physical custody, or that neither parent is a suitable custodian. If the child is in the custody of a parent, to gain custody the petitioner must establish that the parent is unfit, or that continuing to reside with the parent would "`detrimentally effect [sic] the child's growth and development.'"¹² If the child does not reside with either parent, then the statute requires that the petitioner establish that awarding them custody is "in the best interest of the child."¹³

Persons Acting as In Loco Parentis Are Not "Parents" Under Chapter 26.10 RCW

The Washington Supreme Court has explained that a person acting as "in loco parentis" functions in the place of a parent and is charged with a parent's rights, duties, and responsibilities.¹⁴ But this action is under chapter 26.10 RCW, which provides no special status to persons acting in loco parentis. Thus, we reject Luby's argument that because she acted as in loco parentis, she is entitled to the rights of parents under RCW 26.10.030.

At common law, a parent was either the biological mother or biological father of a child.¹⁵ Nonparents—including adoptive parents, legal guardians, grandparents, and persons acting in an in loco parentis...