Vaughn v. England (In re Z.C.), No. 32431–1–III.

• Court: Court of Appeals of Washington
• Writing for the Court: SIDDOWAY, C.J.
• Citation: 191 Wash.App. 674,366 P.3d 439
• Parties: In the Matter of the CUSTODY OF Z.C., a Minor Child. Richard and Daleena Vaughn, Respondents, v. Melissa England, Appellant.
• Docket Number: No. 32431–1–III.
• Decision Date: 15 December 2015

191 Wash.App. 674
366 P.3d 439

In the Matter of the CUSTODY OF Z.C., a Minor Child.

Richard and Daleena Vaughn, Respondents,
v.
Melissa England, Appellant.

No. 32431–1–III.

Court of Appeals of Washington, Division 3.

Dec. 15, 2015.
As Amended Dec. 17, 2015.

366 P.3d 441

Patricia S. Novotny, Attorney at Law, Seattle, WA, for Appellant.

Brooke Jennifer Burns, Ledgerwood & Burns, PLLC., Clarkston, WA, for Respondents.

Kristine K. Olmstead, Northwest Justice Project, Vancouver, WA, Leslie J. Savina, Northwest Justice Project, David J. Ward, Legal Voice, Seattle, WA, Amicus Curiae on behalf of Northwest Justice Project.

SIDDOWAY, C.J.

191 Wash.App. 679

¶ 1 Melissa England appeals the denial of her motion to modify the nonparental custody decree under which her son, Z.C., resides primarily with his aunt and uncle, Daleena and Richard Vaughn. As was the case with the mother in In re Custody of T.L., 165 Wash.App. 268, 268 P.3d 963 (2011), Ms. England initially resisted her family members' nonparental custody proceeding but ultimately agreed to the findings on the basis of which custody was awarded to the Vaughns—findings that, along with other contemporaneous evidence, lend some support to her claim that she anticipated a temporary custody arrangement while she dealt with her drug abuse.

¶ 2 More importantly, the findings and conclusions entered in support of the decree are constitutionally insufficient to deprive Ms. England of her parental rights because neither declares her an unfit parent or finds actual detriment to the child. Accordingly, under T.L., she was entitled, in moving to modify the consent decree, to be presumed a fit parent and for the Vaughns to bear a nonparent's burden of proving her current unfitness or that her custody of Z.C.

191 Wash.App. 680

would result in an actual detriment to his growth and development. The trial court erred in failing to consider her motion on that basis.

¶ 3 Exercising our discretion under RAP 18.8, we address the issue, reverse the trial court's orders denying Ms. England's motions to modify, and remand for a new hearing.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 In August 2006, Richard and Daleena Vaughn filed a nonparental custody petition in Asotin County, seeking custody of their 10–month–old nephew, Z.C. They alleged that their request for custody was in the best interest of Z.C. because his mother, Melissa England (Daleena's sister) was "suspected of doing drugs," "leaves the child with the Petitioners every weekend," "leaves the child with her friends during the week," was "lacking the ability to perform the needed nurturing of the child," and "her home is filthy." Clerk's Papers (CP) at 4. The superior court granted the Vaughns' motion for temporary custody, which was based on affidavits from Ms. Vaughn and Jamie Tedrick, Ms. England's and Ms. Vaughn's mother.

¶ 5 Ms. England responded to the petition within two weeks, denying allegations of current drug use and all allegations of poor parenting, as she would continue to do up until the settlement that led to the decree being challenged on appeal. She also filed an affidavit to which she attached Z.C.'s medical records, asserting that "[h]e has had all his immunizations," had "made all his well

366 P.3d 442

baby checks," and "the reports indicate he is thriving." CP at 276–77; 291–314.

¶ 6 Richard Laws was appointed guardian ad litem for Z.C. in August. He filed his report on October 24 in which he concluded, "I do not believe Ms. England is an unfit parent, and I do not believe that placement with her will result in actual detriment to Z.C.'s growth and development." CP at 628.

191 Wash.App. 681

¶ 7 Among information that Mr. Laws reviewed before making his report were allegations of Ms. England's drug use, including the results of hair tests of Ms. England and Z.C. that were evidently conducted, in accordance with a court order or otherwise, shortly after the nonparental custody petition was filed. No test results are in our record and the information about them is limited and puzzling. Both the Vaughns' amended petition and a declaration of Ms. Tedrick assert that Z.C. had ".24 MG" or "over .24 Mg" of methamphetamine in his system in the test conducted in August 2006. CP at 319, 325. Yet the prevailing cutoff concentration for hair at relevant times was measured in picograms/milligrams, with 500 pg/mg being the cutoff for a "positive" finding.¹ Mr. Laws' guardian ad litem report states that Ms. England's level was only "3.84 ng/mg." CP at 637. In any event, while Mr. Laws "[did] not take [Ms. England's] drug use lightly by any means," he reported that "[n]o one with whom I have spoken, aside from the Petitioners and Ms. England's mother, gives credence to the idea that Ms. England is an addict." CP at 633. He characterized Ms. England as having been candid about occasional drug use but said she insisted that Z.C. had never been with her on such occasions, which Mr. Laws reported and documented was "corroborated by other accounts." CP at 637. For reasons explained in his report, he concluded that the "most likely root cause" of the very low presence of methamphetamine in Z.C.'s hair sample was, if not a "false positive," the result of "accidental environmental exposure" from being in the home or the presence of one of Ms. England's methamphetamine-using friends. CP at 637–38.

191 Wash.App. 682

¶ 8 Ms. England was also evaluated by a chemical dependency evaluator and counselor in late September 2006, who told Mr. Laws that " ‘[i]f I had to put a label on her, I'd call her an abuser, probably not an addict,’ " and expressed the opinion that Ms. England's drug use was "a (likely unconscious) method of self-medicating the depression and grief issues for which she has never been treated." CP at 30. BaDi Cannon, Z.C.'s father, with whom Ms. England had been in a relationship for over three years, died of leukemia on March 13, 2005, the same day that Ms. England learned she was pregnant with Z.C. According to Ms. England, although she moved back to the Clarkston/Lewiston Valley to be close to family after Z.C. was born, she was " unable to shake [her] depression and grief," and when she was encouraged to socialize and be more active, she "[u]nfortunately ... fell back into [an] old party crowd [she] had grown up with ... and started using drugs again." CP at 123.

¶ 9 Mr. Laws reported that on his home visit, Ms. England's apartment was "clean and posed no apparent health risks to a toddler." CP at 631. He reported "see[ing] no evidence that Ms. England has abandoned her child or left him with an inappropriate caregiver" and "nothing to contradict Ms. England's claims that Ms. Vaughn cared for the child because she frequently asked to do so or that Ms. England acquiesced." CP at 640. While he recommended that Ms. England complete a drug treatment program and get evaluation and treatment for depression and grief, he also recommended that Z.C. be returned immediately to Ms. England's care.

¶ 10 At a hearing on December 20, 2006, the trial court evidently expressed a desire to have the Department of Social and Health Services (Department) get involved so that

366 P.3d 443

services could be provided to Ms. England. Its intention was reduced to writing in a January 16, 2007 order that granted temporary residential custody to the Vaughns, visitation to Ms. England four days a week, and provided, finally:

191 Wash.App. 683

This matter is converted to a Dependency and after the State has carefully reviewed the matter, visitation shall occur as determined by the State with services provided to the mother.

CP at 39.

¶ 11 Ms. England contacted the Department in December 2006 to pursue the service option and met with a Department employee on January 12, 2007, but it is undisputed that notwithstanding the court's order, the Department never commenced a dependency. Department notes from the January 12 meeting indicate that Ms. England "appeared confused about the role of the Department, stating that she was of the understanding that the Department would place her child in care and that she would get her child back sooner this way." CP at 698. According to the notes, the assigned worker explained to Ms. England that the Department "[did] not have [child abuse/neglect] allegations on the family and would not be getting involved." Id. While Department records indicate that its assigned worker pointed Ms. England to resources she could pursue on her own, she wrote a confirmatory letter to Ms. England on January 23, 2007, stating, "As I explained, our department does not get involved in custody matters and we were not informed of any child abuse or neglect issues arising from this case." CP at 701. She indicated, "[d]ue to our limitations in this case," she would close Ms. England's case on February 7. Id.

¶ 12 According to the Department's records, Ms. England visited its offices again on May 31, 2007....