In re Custody of Z., No. 33954-4-II (Wash. App. 9/11/2007)

Decision Date11 September 2007
Docket NumberNo. 33954-4-II.,33954-4-II.
PartiesIn The Custody Of Z.; David & Sheila Radford, Appellants v. Jeffrey C. Morgan, Et Al, Respondents.
CourtWashington Court of Appeals

Appeal from Pierce County Superior Court. Docket No: 04-3-02681-3. Judgment or order under review. Date filed: 09/16/2005. Judge signing: Honorable John A Mccarthy.

Counsel for Appellant(s), Ross Edwin Taylor, Attorney at Law, 4217 Juniper Dr W, University Place, WA, 98466-1527.

Counsel for Respondent(s), Gregory Stephen Webley, Attorney at Law, 112 W Meeker, Po Box 247, Puyallup, WA, 98371-0026.

Jeffrey C. Morgan (Appearing Pro Se), 2458 County Rd #1223, Blanchard, OK, 73010.

ORDER GRANTING MOTION FOR RECONSIDERATION AND DENYING MOTION TO PUBLISH

This matter having come before this court on the appellants' motion for reconsideration and motion to publish the unpublished opinion filed on September 11, 2007, and the court having considered the motion, the files, and the record herein, the motion for reconsideration is granted and the opinion is amended as follows:

The third sentence in the last paragraph on page 4 is changed to read, "Citing illness and other personal catastrophes, the appellants' attorney obtained a series of continuances, and we heard oral argument on this matter on June 26, 2007.

The motion to publish is denied.

IT IS SO ORDERED.

DATED this ____ day of ________________________, 2007.

QUINN-BRINTNALL, J.

On May 28, 2003, a child was born to a 30-year-old, drug-addicted mother who had had an adulterous relationship with a married man she met through her church.1 The mother, who suffered from "diminished mental capacity" due to a brain injury she suffered in a car accident and was already struggling to raise a young daughter, gave the child to her brother and his wife (the appellants) to "adopt" and to raise. Clerk's Papers (CP) at 12.

Although the appellants could have immediately attempted to establish legal custody of the child through an adoption proceeding (RCW 26.33.100, .150), third party custody petition (RCW 26.10.032), or a guardianship petition (RCW 11.88.040(2)), which all would have required notice to the father,2 they took no action to legalize custody of the child until 11 months after the father filed a parentage action. The record also suggests that they and/or the child's mother misrepresented the child's whereabouts3 and, arguably, interfered with the father's access to the child by filing for protection or restraining orders and threatening to accuse the father of rape.

During the mother's pregnancy, the father, who was aware of the pregnancy, moved to Oklahoma in an unsuccessful attempt to repair his marriage and to be with his eight-year-old son.

The father later asserted that at the time he left Washington, he believed the mother had agreed to give him the child to raise. But when he contacted the mother within days of learning of the child's birth, the mother informed him, for the first time, that she wanted the appellants to adopt the child. On September 2, 2003, just over three months after learning of the child's birth and the mother's plans, the father filed a paternity action and a proposed parenting plan in Lewis County, Washington, where he believed the child had been residing with the mother.

Although there was some dispute during the Lewis County proceedings regarding where and with whom the child was living, the child was in fact living with the appellants in Pierce County and had been since shortly after his birth. Despite being aware of, and even attending, the Lewis County proceedings, the appellants did not take any steps to obtain legal custody of the child until August 12, 2004, when they filed their petition for third party custody in Pierce County.

That same day, the appellants also filed an ex parte motion for a restraining order and an order to show cause, asking the Pierce County court to issue a temporary restraining order prohibiting the father from contacting any party or removing the child from the state. They asserted that the order would merely preserve the status quo until the "identity" of the father was determined and the parenting plan was entered. They also alleged that the child would be "at risk because of father's history of methamphetamine use," but they never presented any evidence that the father had used illegal drugs at any time. CP at 15. They also asked the court to grant them temporary custody of the child subject to the father's visitation. The Pierce County court granted the temporary order and set a show cause hearing for August 26, 2004.

Meanwhile, on August 13, 2004, more than 11 months after the father filed the paternity petition, the appellants moved to intervene in the Lewis County action and to transfer the case to Pierce County and consolidate it with their third party custody petition.4 A Lewis County commissioner denied the motion to intervene and, on August 25, 2004, found that there was no dispute that the father was the child's biological father and granted custody of the then 14-month-old child to his biological father. Noting that it was "troubled by unwarranted delay in transferring the child to his father," and making special note that the delay was caused in large part by the mother misrepresenting who had actual physical custody of the child, the Lewis County commissioner ordered the appellants to "turn over" the child to the father "on or before September 1, 2004, subject to the orders of the Pierce County Court." CP at 49.

The appellants continued to pursue their third party custody petition, and the Pierce County court appointed a guardian ad litem (GAL)/parenting investigator to investigate the case and to represent the child's interests. The Pierce County court also entered a second temporary restraining order, and then, on September 8 and 27, 2004, entered orders requiring the child to remain in the appellants' custody but allowing visitation by the father.

In addition, on October 1, 2004, the mother also petitioned for a protection order prohibiting the father from contacting her, her daughter, or the child. In the protection order petition, which the mother filed in Lewis County, the mother alleged that the father had raped her and that the child was born as a result of the rape. Four days later, the Lewis County court denied the petition, finding that the mother had not met her burden of proof.

Following a short trial, which lasted approximately four hours, the Pierce County court concluded that the appellants had failed to establish that the father was unfit or that placing the child with the father would result in an actual detriment to the child's growth and development.

On August 24, 2005, the Pierce County court orally denied the appellants' petition and ordered the parties to establish an appropriate schedule to transfer physical custody of the child to the father. At that point, the child was 27 months old.

The appellants appealed the court's denial of their petition to this court. We stayed execution of the custody transfer order and accelerated review. Claiming illness and other personal catastrophes, the appellants' attorney obtained a series of continuances, and we heard oral argument on this matter on June 26, 2007. During this time, the child, who turned four in May 2007, continued to reside with the appellants subject to visitation with his father, who has since returned to live in this state.

We now reject the appellants' assertions that (1) the evidence does not support the Pierce County court's findings that the father was fit and that his custody of the child would not cause an actual detriment to the child's growth and development; (2) the court erred when it applied the detriment to the child standard rather than the best interests of the child standard; and (3) the court erred when it failed to make the child a party to the case and provide independent counsel to the child.5 Accordingly, we affirm the Pierce County court's order denying the appellants' third party custody petition, lift the order staying the transfer of custody to the father, and remand to the court for entry of a schedule that will smoothly and expeditiously transfer physical custody to the father.6

ANALYSIS
Standard of Review

We review a trial court's custody disposition for manifest abuse of discretion. In re Custody of Shields, 120 Wn. App. 108, 119-20, 84 P.3d 905 (2004) (Shields I), reversed on other grounds, 157 Wn.2d 126 (2006). Because the trial court is in the best position to evaluate the evidence, we "are generally reluctant to disturb a child custody disposition." In re Custody of Stell, 56 Wn. App. 356, 366, 783 P.2d 615 (1989). We review questions of law de novo, see In re Marriage of Kastanas, 78 Wn. App. 193, 197, 896 P.2d 726 (1995), and we uphold a trial court's findings of fact where substantial evidence supports them. Shields I, 120 Wn. App at 120.

"Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the truth of the declared premise." In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002), review denied, 149 Wn.2d 1007 (2003).

Detriment to the Child Standard

Chapter 26.10 RCW governs non-parental custody actions. RCW 26.10.030(1) allows a third party to petition for custody of the child if "the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian." Although RCW 26.10.100 provides that "[t]he court shall determine custody in accordance with the best interests of the child," Washington courts have consistently held that this standard implicitly recognizes a presumption that placement with the natural parent is in the child's best interests and that this presumption is necessary to protect the parents' rights and interests. In re Custody of R.R.B., 108 Wn. App. 602, 612-15, 31 P.3d 1212 (2001) (discussing Stell, ...

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