Link v. Link (In re T.L.), 28919–2–III.

• Decision Date: 20 December 2011
• Docket Number: No. 28919–2–III.,28919–2–III.
• Citation: 165 Wash.App. 268,268 P.3d 963
• Court: Washington Court of Appeals
• Parties: In re the Custody OF T.L., A Minor Child,Pamela J. LINK, Respondent, v. Tia R. LINK, Appellant.

165 Wash.App. 268
268 P.3d 963

In re the Custody OF T.L., A Minor Child,Pamela J. LINK, Respondent,
v.
Tia R. LINK, Appellant.

No. 28919–2–III.

Court of Appeals of Washington, Division 3.

Nov. 3, 2011.Publication Ordered Dec. 20, 2011.

West Codenotes

Unconstitutional as Applied

West's RCWA 26.09.260(1, 2), 26.09.070Recognized as Unconstitutional

West's RCWA 26.09.240, 26.10.160(3)

[268 P.3d 965]

Terri D. Sloyer, The Gaia Law Firm, PLLC, Bonne W. Beavers, Center for Justice, Spokane, WA, for Appellant.

Pamela J. Link, (Appearing Pro Se), Yakima, WA, for Respondent.

Panel: Judges KORSMO, BROWN, SIDDOWAY.

SIDDOWAY, J.

[165 Wash.App. 270] ¶ 1 Tia Link appeals the summary denial of her motion to regain custody of her son, T.L., from Tia's [165 Wash.App. 271] mother, to whom Tia relinquished custody during a time she was struggling with substance abuse. Tia argues that because she relinquished custody of T.L. by agreement and no contested hearing has ever found that she is an unfit parent or that her custody of T.L. would be an actual detriment to him, the court below should not have conditioned her right to a hearing on the difficult threshold showing required of a parent who previously lost custody to a nonparent on the merits. We agree that the procedural and substantive hurdles to modifying a custody decree provided by RCW 26.09.260(1), (2) and .270 are unconstitutional as applied to the facts of this case. We reverse the order of dismissal and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In February 2007, Pamela Link filed, pro se, a petition for custody of her grandson T.L., then age 6.¹ Tia Link, Pamela's daughter, is T.L.'s mother. Tia originally resisted her mother's petition, pro se. But in December 2007 Tia filed a joinder in her mother's petition. She contends that she did so because she was struggling with substance abuse and felt that the best situation for T.L. at the time was to live with Pamela. In the handwritten explanation included in her joinder, Tia stated in part, “My mother and I have reconciled. I want my mother to have temporary custody. She has agreed to let me have him when I'm stable.” Clerk's Papers (CP) at 2.

¶ 3 On February 19, 2008, the trial court entered a final residential schedule, findings of fact, conclusions of law, and a nonparental custody decree in favor of Pamela. The decree granted Pamela's petition for custody of T.L. Neither the decree nor the findings or conclusions stated that the custody or residential schedule was temporary or subject to modification on any future event or contingency.

[165 Wash.App. 272] ¶ 4 Tia represents in this appeal that the final documents were all prepared by Pamela and entered by consent. Most of their form and content suggests this was the case. The residential schedule did not impose any restrictions on Tia's contact with T.L. and provided visitation for Tia every other weekend, alternating visitation on holidays, and one month's visitation during the summer. While each of the final documents indicates that it was presented by Pamela, all include Tia's signature, either in the section of the forms reserved for joint presentment or for approval. The basis for the findings set forth in the findings of fact and conclusions of law is not identified as agreement or default, however, but as “trial,” attended by Pamela and Tia. CP at 12. We have not been provided with any transcript of any trial proceedings and Pamela has not disputed Tia's representation that there was no contested hearing. Given the many indications that the findings, conclusions, and decree were agreed rather than the result of a trial, the lack of any record of trial proceedings, and the absence of any disagreement by Pamela, we assume this was the case.

¶ 5 Almost a year later, Tia filed a motion for an order to show cause seeking to hold her mother in contempt for changing residence without providing notice or contact information, preventing Tia from visiting

[268 P.3d 966]

T.L. for eight months. A court commissioner found Pamela in contempt and ordered her to provide make-up time for Tia's lost visitation. The commissioner denied Tia's request that Pamela be required to relinquish custody as a result of the violation; courtroom minutes indicate that he instead noted that Tia “may motion the Court for a modification” of the custody decree. CP at 200.

¶ 6 Tia thereafter filed a petition to modify the custody decree and residential schedule. Her supporting declaration identified changes she claimed to have made to improve her health, living situation, and financial security as well as the ways in which T.L.'s quality of life had deteriorated as a result of Pamela's alleged lack of care. She argued that [165 Wash.App. 273] because she had joined in her mother's petition for custody on the basis that Pamela receive “temporary custody” and “agreed to let me have [T.L.] when I'm stable,” she should not be required to demonstrate the “adequate cause” statutorily required to obtain a modification hearing. Alternatively, she contended that she had demonstrated adequate cause to modify the custody decision.

¶ 7 A court commissioner summarily denied Tia's petition, for failure to demonstrate adequate cause for a modification hearing. In delivering his oral ruling, the commissioner acknowledged that for a parent who has never lost custody in a contested proceeding, there is an incongruity between two statutes: on the one hand, RCW 26.10.100, which imposes a heightened standard before a nonparent is awarded custody of a child over a parent's objection; and on the other, the process and standards for modification that chapter 26.10 RCW incorporates from RCW 26.09.260 and .270, which present a significant obstacle for a parent seeking to have custody of a child restored. The commissioner observed:

The difficulty with the legal structure in a situation like this is the statutes seem to indicate that once the placement is made it becomes essentially permanent. And the—and changes in the circumstances of the natural parent become irrelevant....

There seems to be a bit of ambivalence at the Court of Appeals level where there's some thought that a [chapter 26.10 RCW] decree is perhaps more of a temporary placement. And then a natural parent can petition to recover custody of the child once their parenting disability has resolved itself. There's some language to that effect in the Court of Appeals decision.² [165 Wash.App. 274] It's really unclear where the law is headed with respect to that. So potentially any one of these cases is going to be a good case to appeal.

Report of Proceedings (RP) (Feb. 9, 2010) at 12–13.

¶ 8 Tia moved the superior court to revise the commissioner's order. But the superior court declined, noting that “this type situation falls in a gap that properly should be addressed by the legislature.” RP (Mar. 4, 2010) at 18. It agreed with the commissioner's decision that Tia had not shown adequate cause for a hearing under the applicable statute and affirmed denial of the petition for modification.

¶ 9 Tia timely appealed.

ANALYSIS I

¶ 10 Chapter 26.09 RCW provides the process and standards for determining how residential time and decision-making for minor children will be allocated between parents in the event of separation or divorce. It reflects legislative policy that parenting plans addressing these matters should be carefully thought out before being entered and should anticipate and provide for a child's changing needs as the child grows and matures, “in a way that minimizes the need for future modifications.” RCW 26.09.184(1)(c).

[268 P.3d 967]

¶ 11 Under RCW 26.09.260(1), a court may not make a major modification to a parenting plan or custody decree unless a substantial change has occurred in the circumstances of the child or the nonmoving party and the modification is necessary to serve the best interests of the child. In addition, RCW 26.09.260(2) provides that in applying these standards, the residential schedule of the decree or parenting plan shall be retained unless (a) the parents agree to the modification, (b) the child has been integrated into the petitioner's family with the consent of [165 Wash.App. 275] the other parent, (c) the child's present environment is detrimental, or (d) the court has found the nonmoving parent in contempt of court.

¶ 12 Finally, in order to secure a hearing, a party moving to modify a custody decree or parenting plan must submit with its motion, “an affidavit setting forth facts supporting the ... modification.” RCW 26.09.270. The court must deny the motion without a hearing unless the affidavit establishes “adequate cause.” Id. “Adequate cause” means, at the very minimum, “evidence sufficient to support a finding on each fact that the movant must prove in order to modify.” In re Marriage of Lemke, 120 Wash.App. 536, 540, 85 P.3d 966 (2004), review denied, 152 Wash.2d 1025, 101 P.3d 421 (2004). The primary purpose for the requirement is to prevent movants from harassing nonmovants by obtaining a useless hearing. In re Marriage of Adler, 131 Wash.App. 717, 724, 129 P.3d 293 (2006) (citing Lemke, 120 Wash.App. at 540, 85 P.3d 966), review denied, 158 Wash.2d 1026, 152 P.3d 347 (2007).

¶ 13 A separate chapter, 26.10 RCW, addresses custody determinations where a nonparent seeks custody or visitation. While RCW 26.10.100 provides that “[t]he court shall determine custody in accordance with the best interests of the child,” it has long been held to require that a third party seeking custody from a parent demonstrate that the parent is unfit or that placement of the child with the otherwise fit parent will result in actual detriment to the child's growth and development. In re Custody of Stell, 56 Wash.App. 356, 365, 783 P.2d 615 (1989); In re Custody of Shields, 157 Wash.2d 126, 144, 136 P.3d 117 (2006); In re Parentage of M.F., 168 Wash.2d 528, 533, 228 P.3d 1270 (2010).

¶ 14 While...