In re Custody of Nunn

• Decision Date: 18 December 2000
• Docket Number: No. 46015-3-I.,46015-3-I.
• Citation: 14 P.3d 175,103 Wn. App. 871,103 Wash. App. 871
• Parties: In re the CUSTODY OF Chance T. NUNN, a minor, Julia Nunn, Respondent, v. Lauren Arneson, Appellant.
• Court: Washington Court of Appeals

14 P.3d 175

103 Wn. App. 871

103 Wash. App. 871

In re the CUSTODY OF Chance T. NUNN, a minor,

Julia Nunn, Respondent, v. Lauren Arneson, Appellant.

No. 46015-3-I.

Court of Appeals of Washington, Division 1.

December 18, 2000.

Reconsideration Denied January 26, 2001.

Catherine Wright Smith, Brendan Finucane, Edwards, Sieh, Smith & Goodfriend, Seattle, for Appellant.

Gary Francis Bass, Levinski, Bass & Johnsen, Seattle, for Respondent.

KENNEDY, J.

Lauren Arneson appeals an order granting custody of her son to his paternal aunt, Julia Nunn. The nonparental child custody petition should have been dismissed when Julia Nunn failed to present substantial evidence to prove her allegation that Arneson is an unfit parent because of alcohol abuse and prostitution. Under Ch. 26.10 RCW, Washington's nonparental child custody statute, a nonparent lacks standing to seek custody of a child, as against a fit parent who has physical custody of the child. The allegation of parental unfitness required by RCW 26.10.030 thus presents a threshold issue that should be addressed as early in each nonparental child custody proceeding as may be practicable in all the circumstances of the given case. Here, the failure of the parties and the trial court to focus on the question of Julia Nunn's standing to bring this custody proceeding resulted in months of irrelevant inquiry by the guardian ad litem into the relative merits of the mother and aunt as prospective custodians, a five-day trial, an erroneous custody order, and this appeal-not to mention unwarranted disruption of the parent-child relationship of Arneson and her son, and the resulting heartache to each of them. We reverse and remand for dismissal of Julia Nunn's petition and the prompt return of Chance Nunn to his mother's full care, custody and control, without restrictions.¹ We also grant Arneson's request to be awarded her reasonable attorney fees for this appeal.

FACTS

Lauren Arneson was married to Robert Nunn and they had one child, Chance Nunn, who was born on March 30, 1987. When Chance was two years old, Arneson and Robert Nunn divorced. A parenting plan was entered granting both parents legal custody, granting residential time disproportionately to the father, and giving the father discretion to require that the mother's residential time with the child be supervised, due to the mother's drinking problem. After being arrested for drunken driving in 1994, Arneson entered a two-year treatment and deferred prosecution program. She successfully completed the program and, by the time of trial, had remained sober for five years. Following her return to sobriety, Arneson and her son, who was twelve years old at the time of trial, enjoyed liberal unsupervised overnight residential time together two to three days per week, until the death of Robert Nunn and the commencement of this custody proceeding.

Julia Nunn is the father's sister. From 1988 to 1991, Nunn occasionally cared for Chance while the father was working as a commercial pilot. Julia Nunn moved to California in 1991, and returned to Washington in 1996. She moved into the father's house in November 1998, one month before he died of leukemia. Shortly before his death, Robert Nunn changed his will, establishing a testamentary trust for the benefit of Chance, and naming Julia Nunn as the guardian of Chance's person and estate. By the terms of the trust, Julia Nunn will receive $200,000 if she successfully keeps custody of Chance until he turns eighteen years of age. In the meantime, the trust pays Julia Nunn's living expenses and her legal fees for the current custody proceeding, and pays nothing to Arneson for Chance's support.

On December 8, 1998, two days before Robert Nunn died, Julia Nunn filed a nonparental custody petition seeking physical and legal custody of Chance. In the petition, Nunn alleged that Arneson was an unfit parent because she is a severe alcoholic who continually abuses alcohol and works as a prostitute. A court commissioner entered an ex parte order temporarily granting Nunn full custody, restraining Arneson from interfering with Nunn's custody, and setting up a return date for the show cause order that was issued contemporaneously with the temporary custody and restraining order.

On December 23, 1998, at the show cause hearing, another court commissioner awarded Nunn temporary custody for thirty days pending a report from guardian ad litem (GAL) Don Layton. Arneson's visitations with Chance were limited to Sundays and Wednesday evenings.

Layton submitted his report, not in thirty days, but six months later, in June 1999. In his report, Layton explicitly compared the relative parenting abilities of Arneson and Nunn, utilizing the statutory criteria contained in RCW 26.09.187(3) for determining residential placement as between two divorcing parents. Although concluding that Nunn was the more stable of the two caretakers, Layton noted that Arneson and her son had a "bonded mother-child relationship," and that Chance consistently expressed his desire to live with his mother. Layton also reported that Arneson's psychotherapist, Dr. Vath, stated that she had worked hard to address both her alcohol and anxiety problems, and was competent to care for Chance. Layton also reported that Dr. Saltonstall, Chance's psychotherapist, had noted the strong bond between mother and son and suggested that at that point in Chance's development, this bonding likely outweighed Arneson's probable deficits as a parent.

Layton recommended that Arneson be granted temporary custody pending entry of a permanent parenting plan. Layton further recommended that Chance have residential time with his Aunt Julia on the first and third weekends of each month, one weekday evening each month, and two weeks in the summer. He also recommended, inter alia, that the court require close monitoring and case management of the parenting plan by the GAL, that Chance continue in therapy with Dr. Saltonstall, that Arneson engage in therapy with one of three psychologists of the GAL's choosing, and that all professionals dealing with the family communicate regularly with one another under signed releases, for at least a period of a year following entry of a parenting plan. Finally, Layton recommended that if the parties could not agree to his recommendations above outlined, that the court award permanent custody of Chance to Julia Nunn.

Following this report by the GAL, the court returned Chance to his mother's temporary custody in July 1999, where he remained until the trial in November 1999.

Layton also testified at the trial, which ran for five days. He was critical of Arneson's failure to keep Chance in the same school pending trial, and of the fact that Arneson was openly hostile toward Julia Nunn, toward longtime friends of Robert Nunn who had filed declarations in favor of Julia Nunn's custody petition, toward Dr. Saltonstall, Chance's therapist, and toward others whom she viewed as having taken Julia Nunn's side in the ongoing custody litigation. He indicated that Chance would likely lose contact with Julia Nunn and the Nunn family if Arneson were given permanent custody of Chance. Although Layton confirmed that Arneson had remained sober since completing her treatment for alcoholism, he believed that she had lied to him when she denied ever having worked for an escort service-in part because he had examined her home telephone records and found some twenty calls to the telephone number for an escort service during a period of time from 1994 to 1996, and in part because Arneson reportedly told the police officer who arrested her for driving while intoxicated in 1994 that she was working as a call girl at that time. Layton found no evidence that Arneson was still so employed; to the contrary, she was unemployed, engaged to be married and was being supported by her fiancé. Layton recommended that Julia Nunn be awarded permanent custody of Chance.

The court also heard testimony from Dr. Rebecca Saltonstall, a psychotherapist who was chosen and paid by Nunn, initially to help Chance deal with his father's death, and, later, to help him deal with issues related to this custody action. Nunn relies primarily on the testimony of Dr. Saltonstall to support her claim that Arneson was properly found to be an unfit parent. Nunn specifically focuses on thirteen "things Lauren Arneson was doing which were damaging Chance Nunn[.]" Each allegation is quoted from the Respondent's Brief at 30-32, and is followed by a summary of the relevant evidence in the record, and an indication of whether the trial court made any reference to the evidence in making its findings of fact:

(1) "Failing to keep Chance Nunn in his old school after promising to do so[.]" Dr. Saltonstall testified that Arneson promised to keep Chance in a particular school, and then she did not do so. The trial court made no finding based on this evidence.

(2) "Alienating Chance Nunn from his father's family and support group[.]" On two occasions, Arneson berated Julia Nunn, Layton, Dr. Saltonstall, and associates of Chance's father, in front of Chance. Dr. Saltonstall testified that Arneson's behavior undermined Chance's feelings of safety with these people. Dr. Saltonstall also testified that continuing contact with Robert Nunn's family and friends was important to Chance's well being. The trial court relied on this evidence in making findings of fact IX and XIII.

(3) "Creating problems at Chance Nunn's old school[.]" Dr. Saltonstall testified that people at Chance's school reported that Arneson had been unreliable in following up on specific plans, such as times to pick Chance up, that school officials had some difficulties interacting with Arneson, and they expressed concerns about her emotional condition. The trial court made no finding based on this evidence.

(4) "Failing to bring Chance Nunn to counseling sessions with Dr. Saltonstall[.]" Dr. Saltonstall...