In Re Custody Of: S.m. And A.m., John Mcculla, Sr. v. Carey Mcculla

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Custody of

S.M. and A.M. No. 78208-8-I

JOHN MCCULLA SR. and ANNACARIN DIVISION ONE

MCCULLA,

PUBLISHED OPINION

Respondents,

and

CAREY MCCULLA, nka CAREY

MILTON,

Appellant,

JOHN MCCULLA JR.,

Defendant.

FILED: July 1, 2019

APPELWICK, C.J. — Milton filed a petition to modify a nonparental custody

order. The superior court found that Milton failed to establish adequate cause for

a hearing on the petition. RCW 26.10.190 applies the adequate cause standard

of RCW 26.09.260(1) to modifications of nonparental custody orders. Milton

argues that the adequate cause standard is unconstitutional as applied to

nonparental custody proceedings. We agree. That standard does not provide a

parent a meaningful opportunity to demonstrate that he or she has remedied the

unfitness or detriment to the child that was the basis for the nonparental custody

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order. We reverse and remand for a new adequate cause hearing consistent with

this opinion.

FACTS

S.M. and A.M. are the children of Carey Milton1 and John McCulla, Jr. Both

Milton and McCuIIa, Jr. have a history of substance abuse, and Milton has

struggled with bipolar disorder.

On March 21, 2016, the children’s paternal grandparents, John McCulla, Sr.

and Annacarin McCulla, filed a petition for nonparental custody, asserting that

neither Milton nor McCulla, Jr. was a suitable custodian. A court appointed special

advocate (CASA) conducted an investigation and recommended that the petition

be granted. At the time, SM. was seven years old and A.M. was three years old.

McCuIla, Jr. joined in the petition and Milton opposed it. Trial on the petition

was held on March 20, 2017. Milton did not appear. According to Milton, she did

appear but had a panic attack, threw up, and had to leave the courthouse.

On April 14, 2017, the trial court entered a final nonparental custody order

placing S.M. and A.M. with the paternal grandparents. It made accompanying

findings of fact that Milton was unfit, that the children would suffer actual detriment

if living with her, and that placement of S.M. and A.M. with the grandparents was

in the children’s best interests:

Regarding the respondent mother, she suffers from suicidal

ideations, is medically diagnosed as bipolar, and has admitted to

The pleadings below refer to the appellant as either “Carey McCulla” or

1

Carey Milton.” We use “Milton” as that is how the appellant addresses herself.

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No. 78208-8-1/3

methamphetamine use in previous court proceedings and reported

the same to CASA. The mother has also been committed to a

psychiatric institution for psychiatric treatment several times over the

past few years. The mother has a history of domestic violence and

threats of harm against the respondent father, the petitioners, and

even the maternal grandparents. The mother has exhibited her

physical and aggressive behavior in front of the children as

evidenced by police reports. It is not in the best interest of the minor

children to reside with the respondent mother.

The children are thriving in the care of the petitioners. The children

are excited to be in their current school district. [Tjhey regularly

attend their medical and dental appointments, and have sufficient

space in the new home that they reside in with the petitioners and

the paternal great grandmother. The children are well-adjusted and

cheerful.

Mother is unfit and an actual detriment to children would occur if

children placed with her.

The trial court entered an order limiting Milton’s contact with the children to

three hours of supervised visitation on Saturday or Sunday. Milton was ordered to

complete domestic violence treatment, undergo a substance abuse evaluation and

participate mental health counseling and medication management.

Approximately seven months later, on November 29, 2017, Milton filed a

petition to modify the nonparental custody order. The petition alleged as follows:

Mother is currently complying with court requirements, has adequate

housing, and the ability to meet her children’s needs. It is no longer

necessary for the children to reside with their paternal grandparents.

In support of her petition, Milton provided a declaration in which she stated,

In 2017, it was confirmed that I am bi-polar, after two

hospitalizations. In my manic phases, I have damaged relationships,

lost jobs, and lost my children. Since my medication has stabilized

through a mood stabilizer, injected once a month at Valley Cities, I

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have been able to finish an associate degree, maintain employment

for over six months, get my own apartment and regain control of my

life.

Milton also provided documentation showing that she complied with the substance

abuse evaluation. But, Milton did not complete the domestic violence portion of

the trial court’s order and instead disputed the domestic violence allegations.2

On January 26, 2018, a superior court commissioner found that Milton failed

to establish adequate cause to modify the nonparental custody order. The

commissioner noted that Milton did not meet the criteria for modification stated in

the nonparental custody order.

So I am denying the request for adequate cause. I read these orders

to be very specific about what Ms. Milton is expected to do. And that

includes domestic violence treatment that happens after entry of the

order on April 10, 2017. Also with proof that that provider is given a

copy of all of the CASA reports.

The commissioner also found that the modification statute, RCW 26.09.260(1),

precluded Milton from seeking to modify a nonparental custody order based on a

change in her own circumstances:

I think it is wonderful what I read about the new medication helping

and being given in a more reliable type of way. And so that is great

and I don’t want to undermine that at all. But I do not find that when

there are constitutionally sufficient findings of unfitness that a parent

can come back to court within a year of entry of those orders after

trial and say I am substantially better now, and so let’s do away with

those orders. I don’t think that is what the statute says, and I don’t

think that is what the case law says.

The commissioner’s written order states as follows:

2 Though Milton had previously completed a one year domestic violence

program, it was prior to the entry of the nonparental custody order and did not

include collateral information as required by the trial court.

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No. 78208-8-115

Respondent, Carey Milton has not provided proof of compliance with

all requirements in the 4/10/17 orders Judge McCullough entered

after trial. That court’s constitutionally sufficient findings after trial

mean Ms. Milton must meet the major modification standard as she

requests a major mod[ification] less than a year after trial. She has

not met her legal burden, has not proven substantial change in

circumstances and detriment to the children under RCW 26.09.260.

Milton sought revision of the commissioner’s ruling from a superior court

judge. That judge denied the motion for revision on the grounds that Milton was

precluded from seeking modification based on a change in her own circumstances:

The Court cannot find adequate cause exists to modify the April 10,

2017 Order for Non-parental Custody. Respondent Carey Milton[,]

under current case law and the wording of the statute[,J does

demonstrate affirmative steps have been taken to remedy the court’s

concerns regarding her fitness as a parent.

Milton appeals.

DISCUSSION

Chapter 26.10 RCW sets forth the procedure for nonparental custody

actions.3 RCW 26.10.030(1) provides that a party may file a nonparental custody

~ On May 21, 2019, the governor signed into law Second Substitute Senate

Bill (2SSB) 5604, the uniform guardianship, conservatorship, and other protective

arrangements act. Bill Information: SB 5604, WASHINGTON STATE LEGISLATURE,

https://app.leg.wa.gov/billsummary?BillNumber=5604&Year=201 9&lnitiative=Fals

e (last visited June 12, 2019). 2SSB 5604 repeals chapter 26.10 RCW in its

entirety and substantially changes the procedure by which a nonparent may

assume guardianship of a child. FINAL B. REP. ON SECOND SUBSTITUTE S.B. 5604,

at 3, 66th Leg., Reg. Sess. (Wash. 2019). Under the new statute, a court may

establish a guardianship for a child upon a showing that “[t]here is clear and

convincing evidence that no parent of the minor is willing or able to exercise the

powers the court is granting the guardian.” LAWS OF 2019, ch. 437, § 201(2)(c). A

parent may move to terminate the guardianship upon a showing that this standard

“is not satisfied,” unless termination of the guardianship is not in the child’s best

interests. LAWS OF 2019, ch. 437, § 212. But the new law, which takes effect on

January 1, 2021, will not apply to Milton on remand. LAWS OF 2019, ch. 437, §~

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No. 78208-8-116

petition “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 court must make

a threshold determination that the petition and supporting affidavits establish

adequate cause for a hearing. RCW 26.10.032.

RCW 26.10.100 provides that, in nonparental custody proceedings, “[t}he

court ‘shall determine custody in accordance with the best interests of the child.”

But, the “best interest of the child” standard, by itself, is a “constitutionally

insufficient basis on which to deprive a parent of parental rights.” In re Custody of

iC., 191 Wn. App. 674, 692, 366 P.3d 439 (2015) (citing In re Custody of Smith,

137 Wn. 2d 1, 20, 969 P.2d 21(1998), aff’d by Troxel v. Granville, 530 U.S. 57,

120 S. Ct. 2054, 147 L. Ed. 2d 49(2000)). Consequently, In re Custody of Shields,

157 Wn.2d 126, 140, 136 P.3d 117 (2006), the Washington Supreme Court

imposed additional, nonstatutory requirements. A petitioner must establish that (1)

the parent is unfit or (2) that the parent is fit but placement with the parent would

cause actual detriment to the child’s growth and development. k1. at 150. This is

a high standard that will typically be met only in “extraordinary circumstances.” In

re Custody of B.M.H., 179 Wn.2d 224, 236, 315 P.3d 470 (2013) (quoting In re

Marriage of Allen, 28 Wn. App. 637, 649, 626 P.2d 16 (1981)).

807, 213 (“This chapter does not affect the validity of any court order issued under

chapter 26.10 RCW prior to the effective date of this section. Orders issued under

chapter 26.10 RCW prior to the effective date of this section remain in effect and

do not need to be reissued in a new order under this chapter.”)

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No. 78208-8-117

Once a nonparental custody order is entered, it may be modified only

pursuant to chapter 26.09 RCW, the statute governing the dissolution of marriage

and allocation of residential time and decision-making between parents. ROW

26.10.190. To modify a nonparental custody order, a court must find that

upon the basis of facts that have arisen since the prior decree or plan

or that were unknown to the court at the time of the prior decree or

plan, that a substantial change has occurred in the circumstances of

the child or the nonmoving party and that the modification is in the

best interest of the child and is necessary to serve the best interests

of the child.

ROW 26.09.260(1) (emphasis added). “Missing from the grounds for modification

is a substantial change in the circumstances of the parent moving for modification.”

Zr., 191 Wn. App. at 695 (emphasis added). The party moving for a modification

of a parenting plan must submit an affidavit setting forth facts supporting the

motion. ROW 26.09.270. Again, unless the affidavits establish adequate cause

for hearing the motion, the court must deny the motion without a hearing. ROW

26.09.270. In the context of a nonparental custody order modification, “adequate

cause” means, at a minimum, evidence “sufficient to support a finding on each

fact that the movant must prove in order to modify.” In re Oustody of E.A.T.W.,

168 Wn.2d 335, 347, 227 P.3d 1284 (2010) (quoting In re Marriage of Lemke, 120

Wn. App. 536, 540, 85 P.3d 966 (2004)). The moving party’s affidavit in support

of the modification must “establish new or previously unknown facts.” In re

Marriage of MacLaren, Wn. App. —, 440 P.3d 1055, 1056 (2019).

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Milton first contends that if a parent remedies his or her own parental

deficiencies that are the basis of a nonparental custody order, this constitutes ‘a

substantial change . . in the circumstances of the child” for the purposes of

modifying such an order pursuant to RCW 26.09.260(1).

Statutory interpretation is a question of law that we review de novo. In re

Adoption of T.A.W., 186 Wn.2d 828, 840, 383 P.3d 492 (2016). If a statute’s

meaning is plain on its face, we give effect to that meaning and the inquiry ends.

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,43 P.3d 4 (2002).

‘[A] court must not add words where the legislature has chosen not to include them.

A court also must construe statutes such that all of the language is given effect,

and ‘no portion [is] rendered meaningless or superfluous.” Rest. Dev., Inc. v.

Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003) (alteration in original)

(quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)).

Milton’s argument suggests that any change in a parent’s circumstances

must necessarily result in a change in circumstances for the child. But, to read the

statute as permitting modification based on a change in the parent’s circumstances

would render meaningless the phrase “the circumstances of the child or the

nonmoving party.” If the legislature had intended for a parent’s changed

circumstances to support a major modification, it would have said so expressly. It

did so in a related statute governing minor modifications, which states that a court

may order minor adjustments to a parenting plan “upon a showing of a substantial

change in circumstances of either parent or of the child.” RCW 26.09.260(5).

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However, as the court in ZC noted, the major modification statute pointedly omits

“the circumstances of the parent” as a basis. 191 Wn. App. at 695. Because it is

clearly contrary to the legislature’s intent, we decline to interpret RCW

26.09.260(1) in the manner that Milton suggests.

In the alternative, Milton argues that RCW 26.10.190, which applies the

requirements of RCW 26.09.260(1) to modification of nonparental custody orders,

is unconstitutional. She contends the statute violates her fundamental right to

parent because it does not permit her to modify the non parental custody order on

the grounds that she has remedied the parental deficiencies forming the basis for

the order.

The interpretation of a statute and the determination of whether a statute

violates the United States Constitution are issues of law that are reviewed de novo.

In re Parentage of C.A.M.A., 154 Wn 2d 52, 57, 109 P.3d 405 (2005).

The due process clause of the Fourteenth Amendment protects the

fundamental right of parents to make decisions regarding the care, custody, and

control of their children. U.S. CONST. amend. XIV, § 1, Troxel, 530 U.S. at 66.

“The liberty interest. . . of parents in the care, custody, and control of their children

is perhaps the oldest of the fundamental liberty interests recognized by [the

United States Supreme] Court.” Troxel, 530 U.S. at 65. Moreover, Washington

maintains a strong public policy recognizing the “fundamental importance” of the

parent-child relationship. RCW 26.09.002.

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When parental actions or decisions seriously conflict with the physical or

mental health of the child, the State has a parens patriae right and responsibility

to intervene to protect the child. In re Welfare of Sumey, 94 Wn.2d 757, 762, 621

P.2d 108 (1980). But, even then, a parent’s fundamental right to parent is not

diminished:

“The fundamental liberty interest of natural parents in the care,

custody, and management of their child does not evaporate simply

because they have not been model parents or have lost temporary

custody of their child to the State.” In re Welfare of B.P., 188 Wn

App. 113, 165, 353 P.3d 224 (2015) (Fearing, J., dissenting) (citing

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982) (plurality opinion)), reversed by In re Parental Rights

to B.P., 186 Wn.2d 292, 376 P.3d 350 (2016). The same is true

where a parent has lost temporary custody to a family member.

Z.C., 191 Wn. App. at 704. ‘“[Mjaintaining the family unit should be the first

consideration in all cases of state intervention into childrens’ lives.” In re

Dependency of K.N.J., 171 Wn.2d 568, 575, 257 P.3d 522 (2011) (quoting Comm.

on Soc. And Health Servs., SUBSTITUTE H. CONCURRENT RES. 46, at 1, 44th Leg.,

2d Ex. Sess. (Wash. Feb. 6, 1976)). Consequently, “[pjrotecting a parent’s right

to rear her or his child has sometimes required Washington and federal courts to

read special protections into custody and visitation statutes when a parent’s

interest conflicts with that of a nonparent.” In re Custody of T.L., 165 Wn. App.

268, 281, 268 P.3d 963 (2011).

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No. 78208-8-Ill 1

A nonparental custody order is not intended to permanently deprive a parent

of the care and custody of his or her child.4 In distinguishing nonparental custody

order from de facto parentage, this court held,

[R]esidential placement is not equivalent to parental status. . A . .

nonparent custody order confers only a temporary and uncertain

right to custody of the child for the present time, because the child

has no suitable legal parent. When and if a legal parent becomes fit

to care for the child, the nonparent has no right to continue a

relationship with the child.

In re Parentage of JAB., 146 Wn. App. 417, 426, 191 P.3d 71(2008) (emphasis

added). Division Three of this court concurred in Z.C:

A decree awarding custody to a nonparent under chapter 26.10 ROW

is never permanent because custody is always subject to

modification under RCW 26.09.260(1).

J.A.B.’s observation has likely been repeated so often is [sicj

because it comports with circumstances and understandings under

which courts often see family members agreeing to serve as a

nonparental custodian.

Z~, 191 Wn. App. at 693 & n.5.

~ In this way, nonparental custody orders are distinguished from termination

of parental rights, which does result in the permanent disruption of the parent-child

relationship. ~ RCW 13.34.200 (“Upon the termination of parental rights

pursuant to ROW 13.34.180, all rights, powers, privileges, immunities, duties, and

obligations, including any rights to custody, control, visitation, or support existing

between the child and parent shall be severed and terminated and the parent shall

have no standing to appear at any further legal proceedings concerning the child.”).

The fact that a parent whose parental rights to a child have been terminated may

petition for nonparental custody of that child demonstrates that “custody” is not

equivalent to “parentage.” See In re Oustody of R.R.B., 108 Wn. App. 602, 607,

31 P.3d 1212 (2001) (“The statute does not prohibit biological parents, whose

parental rights were terminated, from petitioning for custody.”).

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However, in practice, a nonparental custody order is often tantamount to a

permanent deprivation of parental rights because it can be modified if only the

conditions of the child or the nonmoving party change. As this court held in In re

Custody of C.C.M., 149 Wn. App. 184, 204-05, 202 P.3d 971 (2009), “A

nonparental custody decree is also permanent, as . . . a natural parent subject to

a nonparental custody petition under chapter 26.10 RCW risks permanent

deprivation of control over the custody and care of the parent’s child.” “The

circumstances under which a parent can move for modification of a custody decree

are not within the control of the parent and may never occur.” In re Marriage of

King, 162 Wn.2d 378, 416, 174 P.3d 659 (2007) (Madsen, J., dissenting).

“[T]he fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.” Post v. City of Tacoma,

167 Wn.2d 300, 313, 217 P.3d 1179 (2009). Since RCW 26.10.190 clearly

contemplates that a parent may seek to modify a nonparental custody order, due

process requires that he or she be given a meaningful opportunity to do so. The

factual basis for a nonparental custody order is a finding that the parent is unfit or

a detriment to the child. A parent has no meaningful opportunity to regain custody

of his or her child if that parent is precluded from showing there is no longer a

factual basis for the order. We conclude that RCW 26.10.190, which applies the

requirements of RCW 26.09.260(1) to modification of nonparental custody

proceedings, violates due process in so far as it limits the change in circumstances

to that of the child or the nonmoving party.

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Consistent with this conclusion, we also hold unconstitutional the

requirement of RCW 26.10.190 that the modification be in the best interests of the

child. The law presumes that a fit parent will act in the best interest of his or her

child. Troxel, 530 U.S. at 68-69. Thus, just as Shields held that it is

unconstitutional for a court to infringe on the parent-child relationship by making

an initial custody determination based on a best interests analysis, it is similarly

unconstitutional for a court to deny a modification on that basis. It may, however,

provide grounds to impose conditions on the transition process by which the parent

shall regain custody.

On remand, the superior court shall determine if Milton has established

adequate cause for a hearing on the modification, consistent with this opinion. To

establish adequate cause, Milton must present “new or previously unknown facts”

showing a change in circumstances such that the factual basis for the order no

longer exists. A nonparental custody order must be based on one of two factors:

that the parent is unfit or that placement with an otherwise fit parent would cause

actual detriment to the child’s growth and development. These factors are mutually

exclusive alternatives. Nonetheless, the trial court based its custody order on both

factors. Milton did not appeal the original factual basis for the order. The dual

basis is now the law of the case. See Seattle Police Officers Guild v. City of

Seattle, 151 Wn.2d 823, 841 n.21, 92 P.3d 243 (2004). Thus, Milton bears the

burden of establishing that she is a fit parent. She must also show that placement

with her even if fit would not result in actual detriment to the children’s growth and

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development. The grandparents may present affidavits or evidence in opposition

to Milton’s claims. If the court finds there is no longer a factual basis for the

nonparental custody order, it shall vacate the order and impose conditions as

appropriate .~

Milton requests attorney fees on appeal, based on RAP 18.1 and RCW

26.10.080, which provides that upon any appeal, “the appellate court may, in its

discretion, order a party to pay for the cost to the other party of maintaining the

appeal and attorney’s fees in addition to statutory costs.” RCW 26.10.080 requires

that the court “balance the needs of the party requesting fees against the other

parties’ ability to pay.” In re Custody of Brown, 153 Wn.2d 646, 656, 105 P.3d 991

(2005). In this case, the trial court has consistently ordered that each party pay

their own fees and costs. Considering the parties’ needs and ability to pay, we

decline to award Milton attorney fees.

Reversed and remanded.

WE CONCUR:

~ A showing of a substantial change in circumstances requires more than a

temporary period of stability. A determination of fitness is not made based on a

single point in time, but looks from a point in time forward. “Custodial changes are

viewed as highly disruptive to children” and courts do not exercise this power

lightly. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).

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