K.R.H. v. Hunter
| Decision Date | 12 January 2016 |
| Docket Number | No. 32597-1-III,32597-1-III |
| Court | Washington Court of Appeals |
| Parties | IN THE MATTER OF THE CUSTODY OF: K.R.H., DEBRA ELAINE CLAWSON, Respondent, and JANELLE MARIE HUNTER, WILLIAM F. MARX, Petitioners. |
FEARING, J. — William Marx appeals the trial court's denial of his motion to vacate a default nonparental custody decree entered against him prior to establishment of his paternity. The decree granted custody of Marx's daughter, Katerina, to the daughter's maternal grandmother, Debra Clawson. Katerina is a fictitious name. Marx also appeals the trial court's denial of his petition for a major modification of the default residential schedule. We affirm the trial court's refusal to vacate the default decree. We, however, reverse the trial court's denial of Marx's petition for a major modification in the child's residential schedule. We hold that the trial court failed to employ the correct standard when denying the petition for a major modification. Because of Marx's constitutional right to the care of his daughter, Debra Clawson, to retain custody of Katerina, needed to show Marx to be an unfit parent or that Katerina's placement with Marx would result in actual detriment to Katerina's growth and development. We remand for further proceedings.
Janellc Hunter and appellant William Marx generated a child together in 2010, although Marx disclaims knowledge of his fatherhood until 2013. In December 2009 and January 2010, Janelle Hunter and William Marx enjoyed a brief corporeal affair, despite Hunter's marriage to another. Marx believed Hunter then engaged in sexual relations with two other men not her husband. Marx claims he ended the brief relationship with Hunter because of her sexual interactions with others, her possible drug use, and intervention by police. He does not explain the police involvement.
In a declaration, respondent Debra Clawson, mother of Janelle Hunter, averred that Hunter, with William Marx present, announced her pregnancy during Christmas dinner 2009. Clawson was present during the dinner. Marx denies that Hunter publicized any pregnancy at the Christmas dinner. Marx reasonably notes that Hunter gave birth to Katerina after only thirty-five weeks of gestation and more than thirty-fiveweeks passed between Christmas and the birth, on August 25. Marx also questions whether Hunter would announce to her family that a man she met a week before already impregnated her.
On August 25, 2010, Janelle Hunter gave birth to Katerina. Hunter consumed methamphetamine while pregnant, and, as a result, Child Protective Services (CPS) removed Katerina from Hunter's side while the two convalesced in the hospital.
In an order denying William Marx's motion for reconsideration in this nonparental custody suit, the trial court entered findings of fact that mentioned events during the dependency action. The findings state that Janelle Hunter identified William Marx as the father. The findings do not disclose when or under what setting Hunter identified Marx as the father. Neither party knows if the birth certificate listed Marx as the father.
In a declaration, Debra Clawson testified that someone telephoned William Marx the day after Katerina's birth and informed him of the birth. According to Clawson, Marx summarily ended the call. Clawson did not identify the purported caller to Marx nor did she aver that she overheard the conversation. The declaration also does not indicate whether the caller informed Marx that he was the father of the child.
On August 31, 2010, the State of Washington filed a dependency action for Katerina. The record on appeal does not include the pleadings from the dependency action, In the order denying William Marx's motion for reconsideration in this nonparental custody suit, the trial court entered a finding of fact that the dependencypetition listed William Marx as Katerina's biological father.
On September 3, 2010, the State filed a declaration indicating that it left notice of the dependency action at Marx's last known address, 223 E. LaCrosse, Spokane. The State gained the address through a search of Qwest telephone records and the Internet. The findings in this nonparental custody action mentioned that the State "paged" Marx for a dependency hearing on October 14, 2010, and that Marx did not respond to the page. We do not know the nature of the page, whether Marx had the capability of receiving a page, and whether Marx received the page.
In a declaration in support of his motion to vacate the nonparental custody order, William Marx did not disclose whether he received notice of the dependency action or if he received a page for a hearing. In the declaration, Marx agreed he learned in early 2010 of Janelle Hunter's pregnancy. He averred that, at the time of the birth of the child, he did not believe he was the father because the child was born eight months after his first rendezvous with Hunter and because Hunter enjoyed relations with other men. Marx testified that Hunter never informed him that he was the father of Katerina.
On September 10, 2010, and after the filing of the dependency action, the State of Washington placed the two-week-old Katerina with her maternal grandmother, Debra Clawson. On November 10, 2010, the trial court entered an order of dependency for Katerina, kept the child in the care of Clawson, and granted Clawson leave to obtain a decree of nonparental custody. Our record does not contain a copy of the dependencyorder. We do not know if the order of dependency included findings declaring William Marx unfit to parent. William Marx claims the State dismissed the dependency action because of lack of service on him. He claims the State filed a pleading stating he had not been served. We do not have a copy of the pleading in order to confirm Marx's contention.
On January 10, 2011, Debra Clawson initiated this nonparental custody proceeding, against her daughter Janelle Hunter and William Marx, for the custody of Katerina. Katerina was then three-months old. Marx had not yet been legally established as Katerina's parent. In her petition, Clawson identified Marx as "possible father to" Katerina. Clerk's Papers (CP) at 4. Clawson alleged that Marx "has never had any contact with [Katerina] or showed any interest in her." CP at 10. Clawson petitioned for limited visitation for Marx due to his alleged "|w]illful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions." CP at 9. Under a section of the nonparental custody petition titled "Best Interest of the Children," Clawson wrote: "I think being placed with family is better than being placed in a foster home." CP at 10. Clawson did not sign the petition under the penalty of perjury, despite the petition form requiring the signature.
In her proposed residential schedule filed with the nonparental custody petition, Debra Clawson proposed restricting William Marx's contact with Katerina to supervised visitations with twenty-four hours advance notice. Clawson justified the restriction withMarx's willful abandonment of his daughter and his conviction of assault of a child in the third degree. In a declaration later filed, Marx admitted the State charged him with assault in 2001. Marx averred that he resolved the charge, but does not disclose the nature of the resolution or whether the State convicted him of the crime. He states that someone permitted him to see his other children on the same day as the resolution of the charge. Our appellate record does not include Marx's criminal background.
On January 10, 2011, Debra Clawson's son, Corey Clawson, appeared at William Marx's front door and handed Marx papers. In a March 2014 declaration, Marx avowed that Clawson delivered him "a couple" faded handwritten papers with portions whited out. CP at 58. Marx claimed he found no summons in the papers, although he does not explain why three years later he would remember the absence of a summons and why he would have known the significance of a summons in 2011. In his declaration, Marx further averred that he saw no case number on the papers. Marx insisted he was unaware of a need to respond to the papers or that the papers alleged him to be Katerina's father. He does not indicate if he read any of the papers, whether he recalls the content of what he read, and how and when he disposed of the papers.
Kathryn Fcnley, William Marx's girlfriend, signed a declaration in April 2014. In the declaration, Fenley averred that she observed Corey Clawson serve Marx with documents in January 2011. Fenley reviewed the documents and described them as a small stack of papers "whited out and badly faded in places" and lacking the appearanceof "proper documents." CP at 127. According to Fenley, the paperwork lacked any summons. On January 11, 2011, Corey Clawson filed a return of service, in which he declared he served William Marx at 223 E. LaCrosse, Spokane, at 8:04 p.m., on January 10, 2011, with a copy of the summons, petition, proposed residential schedule, notice of adequate cause hearing, and a response to petition form.
Neither Janelle Hunter nor William Marx responded to Debra Clawson's nonparental custody petition. On February 3, 2011, a court commissioner granted Clawson an order of default, order on nonparental custody, order re: adequate cause, findings of fact and conclusions of law, and nonparental custody decree. One finding declared that neither parent is a "suitable custodian" for Katerina because "both parents failed to meet minimal standards of care for [the child] and failed to complete services." CP at 30. Another finding averred that the child had been "removed from parental care due to findings of neglect and/or abuse by CPS." CP at 30. A later finding stated that "it is in the best interest of [Katerina] to be placed in the custody of petitioner [Debra Clawson]." CP at 30. No finding expressly declared William Marx to be an...
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