In re Custody of C.C.M., No. 61724-9-I.

• Court: Court of Appeals of Washington
• Writing for the Court: Dwyer
• Citation: 202 P.3d 971,149 Wn. App. 184
• Decision Date: 09 March 2009
• Docket Number: No. 61724-9-I.
• Parties: In re CUSTODY OF C.C.M., a minor child. Jane and Michael Mecum, Appellants, v. State of Washington, Department of Social and Health Services, Steven M. Pomiak, Father, Stephanie J. Mecum, Mother, Respondents, The Coquille Indian Tribe, Respondent-Intervenor.

202 P.3d 971 149 Wn. App. 184 In re CUSTODY OF C.C.M., a minor child.
Jane and Michael Mecum, Appellants,
v.
State of Washington, Department of Social and Health Services, Steven M. Pomiak, Father, Stephanie J. Mecum, Mother, Respondents,
The Coquille Indian Tribe, Respondent-Intervenor. No. 61724-9-I. Court of Appeals of Washington, Division 1. March 9, 2009.

[202 P.3d 974]

Yale Lewis, Law Office of Yale Lewis, Seattle, WA, for Appellants.

Robert Helland, Barbara H. McInvaille, Tacoma, WA, Melissa T. Cribbins, North Bend, OR, for Respondents.

Stephanie J. Mecum, San Diego, CA, pro se.

DWYER, A.C.J.

¶ 1 Jane and Michael Mecum and the Coquille Indian Tribe appeal from the decree denying the Mecums' nonparental custody petition, filed pursuant to chapter 26.10 RCW, seeking to obtain legal custody of their Indian granddaughter, C.C.M. The trial court awarded full custody to C.C.M.'s father, Steven Pomiak.

¶ 2 The Mecums and the Tribe, which intervened pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63, contend that the decree is invalid because the Tribe did not receive proper notice of the proceeding. Under ICWA and state law, an Indian tribe has a right to receive notice of any custody proceeding involving an Indian child who is an enrolled member of the tribe. The deficiency resulting from a defective notice may be cured only if an interested tribe expressly waives its right to intervene or later intervenes and has the opportunity to fully participate in the custody proceeding. Because the Coquille Tribe did not receive proper notice, did not expressly waive its right to intervene, and was not allowed to fully participate in the trial, the proceedings below are invalid and the case must be remanded for a new trial.

¶ 3 The Mecums also claim both that ICWA requires C.C.M. to be placed according to her "best interests," and that the standards set forth in ICWA, rather than state law, govern this dispute. The Mecums contend that because Mr. Mecum is C.C.M.'s Indian custodian, he has an equal right to custody of C.C.M. under ICWA as does Pomiak. We disagree. Generally, ICWA applies to custody proceedings involving Indian children, but it explicitly does not employ a "best interests" standard in this type of proceeding, which qualifies as an action for foster care placement under ICWA. Instead, the party seeking to remove a child from the custody of either a parent or an Indian custodian must show by clear and convincing evidence that the parent or custodian's continued custody is likely to result in serious physical or emotional harm to the child. 25 U.S.C. § 1912(e). In so requiring, ICWA does not state a preference for custody by an

202 P.3d 975

Indian custodian or a parent. Thus, resolution of a custody dispute between such coequal parties is impossible without impinging on the losing party's mutually equivalent right to custody.

¶ 4 However, ICWA itself provides a solution to this problem. The Act mandates that when either a state or a federal law affords greater protection for either a parent or a custodian, the more protective law shall apply. 25 U.S.C. § 1921. Here, Washington law accords a clear preference for parental custody. Accordingly, we hold that state law, not ICWA, supplies the substantive legal standards governing this nonparental custody dispute between an Indian custodian and a parent. In addition, because a parent's interests in the custody and care of his or her children at stake in a nonparental custody action under chapter 26.10 RCW are equivalent to those implicated in termination and dependency proceedings, we hold that the Mecums must make their case by clear and convincing evidence.

I

¶ 5 In February 2002, Jane and Michael Mecum petitioned under chapter 26.10 RCW for custody of their granddaughter, C.C.M. C.C.M had lived with them in Renton, Washington, since her birth in April 2000. She is an enrolled member of the Coquille Indian Tribe through her grandfather's heritage. The Mecums alleged that C.C.M.'s unmarried mother and father, Stephanie Spencer (formerly Mecum) and Steven Pomiak, had abandoned her and that they were unsuitable parents.

¶ 6 The Mecums subsequently obtained temporary custody of C.C.M. under a series of orders issued in early 2002. Later that fall, the Mecums and Spencer entered into a Civil Rule (CR) 2A agreement granting visitation rights to Spencer. Meanwhile, the trial court entered a default order against Pomiak because he failed to timely file a parenting plan. It awarded custody to the Mecums. Pomiak appealed.

¶ 7 In 2003, we reversed and vacated the trial court's rulings against Pomiak and remanded the case for further proceedings. Mecum v. Pomiak, 119 Wash.App. 415, 422, 81 P.3d 154 (2003). Thereafter, Pomiak traveled with increasing frequency from his home in San Diego to visit C.C.M. in Renton. Spencer later moved to San Diego as well. Although they never married, both parents visited C.C.M. together.

¶ 8 In November 2007, the Mecums and Pomiak finally proceeded to trial. Neither Spencer nor the Coquille Indian Tribe participated. After three days of testimony, the court denied the Mecums' petition. It concluded that, under the standard for nonparental custody petitions announced in In re Custody of Shields, 157 Wash.2d 126, 136 P.3d 117 (2006), the Mecums failed to demonstrate either that Pomiak was unfit or that his custody of C.C.M. posed an actual detriment to C.C.M.'s growth and development. Although determining to grant custody of C.C.M. to Pomiak, in order to ease C.C.M.'s transition to living permanently with her father in San Diego, the court deferred entry of the decree and directed the parties to coordinate an accelerated visitation schedule.

¶ 9 In March 2008, four months after the trial ended, the Tribe intervened. The Tribe asserted that it had not intervened earlier because it had not received proper notice of the proceedings. The Mecums did not identify C.C.M. as an Indian child in their original petition, but they informed the trial court in their trial brief of her Indian status and stated that the Coquille Tribe had declined to intervene. In 2004, the Mecums had contacted the Tribe to determine whether it would intervene. One of the Tribe's social workers responded in the negative. It is undisputed, however, that the Tribe did not receive notice by registered mail, as both ICWA and Washington law require.

¶ 10 After the Tribe intervened, another one of its social workers evaluated the Mecum and Pomiak homes. She recommended in a written report that C.C.M. remain with the Mecums. The Tribe then moved to present her live testimony. However, the trial court denied this motion on the ground that the Tribe, as an intervenor, was limited to providing "input" in the form of the social worker's written report.

202 P.3d 976

¶ 11 In May 2008, the trial court entered a decree awarding full custody of C.C.M. to Pomiak. In its written findings of fact and conclusions of law, the trial court concluded that C.C.M. was an Indian child and that ICWA applied, but that Shields nevertheless governed. Even in light of the social worker's report, the court concluded that the evidence did not demonstrate either that Pomiak was unfit to parent or that his custody of C.C.M. posed an actual detriment to her growth and development.

¶ 12 The court also entered a judgment for back child support in the amounts of $14,000 against Pomiak and $23,000 against Spencer. The judgment, however, does not contain an attached worksheet reflecting support calculations. Nor does it account for the interest of the Washington Division of Child Support (DCS) in unpaid support installments stemming from an April 16, 2001, California court order that set Pomiak's monthly support obligation at $212.

¶ 13 The Mecums and the Tribe now appeal from the custody decree. They contend that the proceedings below are invalid because the Tribe did not receive proper notice, as required by ICWA and Washington law, and that the Tribe's limited intervention did not cure the defective notice. The Mecums separately assert that the trial court erred by applying the Shields unfitness/actual detriment standard and that, because Mr. Mecum is C.C.M.'s "Indian custodian," the trial court should have placed her according to her best interests. The Mecums further contend that the trial court erred in entering the judgment for back child support against Pomiak. Both the Mecums and Pomiak request an award of attorney fees.

II

¶ 14 Before resolving the issue of the adequacy of the notice given to the Tribe, we must first address the threshold question of whether ICWA applies in this dispute. The trial court concluded that ICWA does apply because C.C.M. is an Indian child. Issues concerning ICWA's applicability are questions of law that we review de novo. In re Dependency of A.L.W., 108 Wash.App. 664, 669, 32 P.3d 297 (2001).

¶ 15 ICWA applies to child custody proceedings involving Indian children. In re Adoption of M., 66 Wash.App. 475, 478, 832 P.2d 518 (1992). Any unmarried person who is younger than 18 years of age and is an enrolled member of a recognized Indian tribe is an Indian child. 25 U.S.C. § 1903(4). The trial court found that C.C.M. is an enrolled member of the Coquille Indian Tribe, a federally recognized tribe. Because no party has assigned error to this finding, we treat it as a verity on appeal. State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003). Thus, we accept that C.C.M. is an Indian child.

¶ 16 C.C.M.'s status as an Indian child triggers the application of ICWA pursuant to RCW 26.10.034. But that section does not specify which particular provisions of ICWA are applicable. Thus, we must determine what kind of ICWA child custody proceeding the Mecums initiated when they filed their petition.

¶ 17 ICWA governs four types of custody proceedings: (1) foster care placement; (2) termination of parental rights; (3) preadoptive...