In re Custody of RRB

• Citation: 31 P.3d 1212,108 Wash. App. 602,108 Wn. App. 602
• Decision Date: 28 September 2001
• Docket Number: No. 25690-8-II.,25690-8-II.
• Court: Washington Court of Appeals
• Parties: In re the CUSTODY OF RRB, DOB 1/4/84. Bruce Rosenthal, Respondent, v. Sally Budack and Edward Budack, Appellants.

31 P.3d 1212

108 Wn. App. 602

108 Wash. App. 602

In re the CUSTODY OF RRB, DOB 1/4/84.

Bruce Rosenthal, Respondent, v. Sally Budack and Edward Budack, Appellants.

No. 25690-8-II.

Court of Appeals of Washington, Division 2.

September 28, 2001.

Daniel J. Shea, Seattle, Theresa Lauren Fricke, Ranier Armin Frank, Jeffrey Alan Robinson, Law Offices of Jeffrey A. Robinson, Gig Harbor, for Appellants.

Felix Landau, Bellevue, for Respondent.

Shaleen Delaney Brewer, Glendale, Guardian Ad Litem.

PART PUBLISHED OPINION

ARMSTRONG, C.J.

Chuck and Sally Budack, the adoptive parents of RRB, appeal an order awarding custody of RRB to Bruce Rosenthal, RRB's biological father. The trial court found that although the Budacks were fit parents, their continued custody of RRB would detrimentally affect her growth and development. The Budacks contend that awarding custody to Rosenthal, who had relinquished his parental rights at the time of the adoption, violates the policy in favor of finality in adoptions. They also argue that the statute allowing a nonparent to petition for custody is unconstitutional. Finally, the Budacks assign error to the trial court's orders for visitation, child support, and attorney fees. We hold that the adoption statutes do not prevent Rosenthal from petitioning for custody under the nonparental custody statute and that the nonparental custody statute is constitutional. But we hold that the court erred in delegating authority to RRB's counselor to set visitation. Accordingly, we remand to the trial court to set a visitation schedule; otherwise, we affirm.

FACTS

In 1990, Chuck and Sally Budack adopted RRB, Sally's biological niece. Bruce Rosenthal, RRB's biological father, had consented to the Budacks' adoption of RRB when she was six.¹ But Rosenthal, with the Budacks' permission, kept in contact with RRB.

RRB began to have mental health problems in 1997, when she was 13 years old. At the time, she lived with the Budacks. RRB told various medical providers that the Budacks had physically and emotionally abused her. She described beatings with a leather belt, a wooden paddle, and a wire hanger. She also said the Budacks forced her to do sit-ups and push-ups as "military" disciplinary tools. RP at 182. RRB told the providers that she wanted to live with Rosenthal rather than the Budacks. With the Budacks' permission, RRB moved in with Rosenthal and his wife, Becky.²

While living with the Rosenthals, RRB attempted suicide and was hospitalized in September and December 1998. She again reported the Budacks' abuse and also reported some conflict in the Rosenthal home. Doctors found that RRB had self-inflicted cuts and scrapes.

In December 1998, Child Protective Services (CPS) investigated RRB's allegations, but the results were inconclusive. CPS released RRB to the Budacks, who immediately sent her to live with her grandmother in Texas. Within several weeks, RRB was again hospitalized for self-mutilation and mental health problems.

In January 1999, Rosenthal petitioned for custody of RRB under the nonparental custody statute, Chapter 26.10 RCW. After he was awarded temporary custody of RRB on January 26, 1999, he brought her back to Washington and she entered Fairfax Hospital. The doctors diagnosed bipolar disorder and post-traumatic stress disorder (PTSD). After two weeks, the doctors released RRB on medication; they also recommended counseling. At the time of the custody hearing, RRB was receiving counseling at the Everett Clinic and showed some improvement.

After a hearing in November 1999, the trial judge granted Rosenthal's petition for custody and appointed Bruce and Becky Rosenthal as co-custodians. He found that the Budacks were fit parents but concluded that placing RRB in their custody would detrimentally affect her growth and development. He based this conclusion on a number of factors: RRB's mental illness and its stabilization after living with the Rosenthals; RRB's involvement in the Rosenthals' church and community, and the resulting emotional stability; and RRB's own statements that she would react badly, and possibly hurt herself, if she were forced to return to the Budacks. The judge also ordered the Budacks to pay current and back child support; he ordered visitation as determined by RRB and her counselor; and he ordered each party to pay its own attorney fees.

ANALYSIS

I. Rosenthal's Standing

The Budacks argue that Rosenthal lacks standing because he relinquished his parental rights to RRB and consented to her adoption. The Budacks point to the public policy in favor of finality in adoption proceedings. Rosenthal responds that nothing in the nonparental custody statute, Chapter 26.10 RCW, prevents him from petitioning for custody of RRB. Thus, Rosenthal's standing implicates two issues: the requirements of the nonparental custody statute and the legal effects of Rosenthal's voluntary termination of parental rights and consent to adoption.

Nothing in the nonparental custody statute prohibits Rosenthal from petitioning for custody of RRB. Under RCW 26.10.030(1), any person other than a parent may seek custody of a child, "but only 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." The statute does not prohibit biological parents, whose parental rights were terminated, from petitioning for custody.

In In re Custody of Smith, 137 Wash.2d 1, 969 P.2d 21 (1998), aff'd sub nom Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)

, the court held that under the plain language of RCW 26.10.160(3), which allows any person to petition for visitation at any time, a nonparent has standing to petition for visitation outside of a custody proceeding. Smith,

137 Wash.2d at 12-13,

969 P.2d 21. Here, as in Smith, the statute allows "any person" to petition for custody. We conclude that Rosenthal has standing under RCW 26.10.030(1) to petition for custody of RRB.

But the Budacks contend that Rosenthal cannot seek custody because he relinquished his parental rights. At the time of the adoption, Rosenthal relinquished "all legal rights and obligations with respect to the children." He also acknowledged that the court would sign an order "permanently terminating all of my parental rights to the children." CP at 215-18.

RCW 26.33.130(2) states that an order terminating a parent-child relationship "divests the parent and the child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other except past-due child support obligations owed by the parent." The purpose of adoption, according to our legislature, is "to provide stable homes for children." RCW 26.33.010.

Washington courts have repeatedly emphasized the importance of finality in adoption. In In re Adoption of Baby Girl K, 26 Wash.App. 897, 615 P.2d 1310 (1980), the court refused to allow a birth mother to revoke her written surrender of her child to an adoption agency, citing the "strong public interest in the finality of these [adoption] procedures." Baby Girl K, 26 Wash.App. at 905, 615 P.2d 1310.

Other cases have emphasized the sanctity of the adoptive family. In Mitchell v. Doe, 41 Wash.App. 846, 706 P.2d 1100 (1985), the court denied a biological grandmother visitation with a grandchild who had been adopted by strangers. Mitchell, 41 Wash.App. at 850,706 P.2d 1100. Despite the broad language of the nonparental visitation statute permitting "any person" to petition for visitation, the court found it "abundantly clear" that the legislature did not intend for the nonparental visitation statute to permit a child's biological family to disturb the sanctity of the adoptive family. Mitchell, 41 Wash.App. at 850,706 P.2d 1100. And in Bond v. Yount, 47 Wash.App. 181, 734 P.2d 39 (1987), the court denied the paternal grandparents visitation with a child adopted by the maternal grandparents and "agree[d] with the Mitchell court that the Legislature did not intend [the nonparental visitation statute] to chip away the strong policy holding the privacy of adoption to be sacrosanct." Bond, 47 Wash.App. at 183,734 P.2d 39. Accordingly, even though the adoption was by family members and not strangers, the petitioners lacked standing. See also In re Custody of B.S.Z.-S., 74 Wash.App. 727, 875 P.2d 693 (1994)

(grandmother lacked standing to petition for visitation when child was adopted by grandfather).

Nonetheless, we conclude that the adoption laws do not bar Rosenthal's petition. First, the adoption statute prohibits the relinquishing parent from contesting the adoption or otherwise participating in the proceedings. RCW 26.33.130(4). Thus, Rosenthal forfeited his right to contest or otherwise participate in the 1990 adoption of his children. But nothing in the adoption statutes precludes him from participating in a separate, unrelated proceeding. And the cases involving dependency and involuntary termination of parental rights are distinguishable. For example, in In re Dependency of G.C.B., 73 Wash.App. 708, 870 P.2d 1037 (1994), the court terminated the biological mother's parental rights in a dependency proceeding under Chapter 13.34 RCW. G.C.B., 73 Wash.App. at 710, 870 P.2d 1037. The court held that her later petition to adopt the child should have been dismissed because "a parent whose rights have been terminated may not relitigate that issue through a petition for adoption, or through any other legal proceeding." G.C.B., 73 Wash.App. at 717, 870 P.2d 1037.

But the dependency statute at issue in G.C.B., RCW 13.34.200(1), states that a dependency proceeding order terminates all parental rights and obligations and "the parent shall have no standing to appear at any further legal proceedings concerning the child[.]" (emphasis added). In contrast, when terminating parental rights under the adoption statute, RCW 26.33.130(4), the parent "is not thereafter entitled to notice of proceedings...