IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Custody of: ) ) DIVISION ONE M.K.W. ) ) No. 76215-0-1 KIMBERLY KAY SWIMM, ) ) Respondent, ) r.,z) ) UNPUBLISHED OPINION CD •-
v. ) (fi
) ANGELA MARIE ZUEHL, ) ) Appellant. ) FILED: November 20, 2017 )
DWYER, J. — Angela Zuehl appeals from the trial court's order granting
nonparental custody of her daughter, M.K.W., to Kimberly Swimm. Concluding
that the trial court applied the incorrect burden of proof, relied on past conduct as
a substitute for current fitness, and erroneously focused on the best interest
standard to find detriment, we reverse.
M.K.W. was born to Angela Zuehl and Charles Walters in 2007. M.K.W.
has two half-sisters--her older sister lives with Zuehl's maternal grandmother No. 76215-0-1/2
and her younger sister lives with Zuehl and her partner, Christopher Scott, in
Tillamook, Oregon.
In 2011, Zuehl and Walters were homeless and addicted to drugs while
caring for M.K.W. Child Protective Services intervened and removed M.K.W.
from their care, placing her with her paternal grandmother, Kimberly Swimm.
Walters entered a drug treatment program shortly thereafter and, in 2013, was
able to regain custody of M.K.W. Unfortunately, Walters relapsed two years later
and voluntarily returned M.K.W. to Swimm's care. M.K.W. has lived with Swimm
continuously since September 2015.
Once M.K.W. was returned to her care, Swimm filed a petition for
nonparental custody. A superior court commissioner issued an order finding
adequate cause for a hearing.1 The commissioner noted that the order was
In]ot based on mother being currently unfit but based on the court's belief that
the move to Oregon would be detrimental to the child." The parties were ordered
to adhere to the residential schedule for visitation that they agreed to following
M.K.W.'s removal in 2011.
Trial was held on December 14, 2016. Swimm and Zuehl represented
themselves. The trial court heard testimony from several of M.K.W.'s
grandparents and great-grandparents regarding Zuehl's ability to care for M.K.W.
The trial court also heard testimony from Swimm,Zuehl, and Scott.
1 Zuehl does not challenge the order of adequate cause. But this does not preclude her from appealing the final order granting the nonparental custody petition. In re Custody of A.L.D., 191 Wn. App. 474, 498, 363 P.3d 604(2015).
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Swimm testified that Zuehl and Walters had been transient for years
before she first obtained custody of M.K.W. Swimm testified that Zuehl had a
history of drug and alcohol addiction as well as an extensive criminal record.
Swimm provided the trial court with several police reports in support of her
testimony. Swimm testified that Zuehl was required to undergo urinalysis tests
(UAs) at the discretion of her probation officer. Swimm testified that she had
spoken to Zuehl's probation officer and that she was told that Zuehl had not
failed any UAs.
Swimm also testified as to her experience caring for M.K.W. Swimm
testified that M.K.W. attends therapy to help her cope with her parents' drug use
and absence. Swimm testified that M.K.W. participates in extracurricular
activities, does well in school, has close friends, and is happy. Swimm testified
that she was worried about what would happen to M.K.W. if she were forced to
leave her routine to live with her mother in Oregon.
Swimm's husband, Jeff Santose, also testified at trial. Santose testified
that M.K.W. does well living with him and Swimm. Santose testified that he had
"no clue" what M.K.W.'s life in Oregon was like. Santose testified that Zuehl and
Scott pay M.K.W. an allowance for doing household chores and that he did not
believe that a child should be doing chores. Santose testified that, when M.K.W.
would return home after visiting her mother, she would be happy sometimes and
depressed other times.
Scott offered testimony as to his relationship with Zuehl. Scott testified
that he and Zuehl moved to Tillamook County in September 2014. Scott testified
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that he and Zuehl moved to the City of Tillamook in January 2016. Scott testified
that Zuehl attends school full time, works part time, sees her counselor every
week, attends bible study, takes parenting classes, and occasionally attends
narcotics anonymous meetings. Scott testified that Zuehl was a very good
mother to their 11-month-old daughter. Scott also testified as to M.K.W.'s
experiences visiting Zuehl in Oregon. Scott testified that M.K.W. has her own
room, her own things, has friends in the community, has responsibilities at home,
and has a place to attend counseling.
Scott testified that Zuehl relapsed sometime in 2014. By the time that
Scott noticed that Zuehl had started using drugs she had stolen money from him
and fled from their home in Oregon. Scott testified that he cooperated with the
police to file a felony charge against Zuehl. Scott testified that Zuehl became
pregnant with their daughter sometime in April and started getting sober by June
2015. Scott testified that Zuehl went to jail and then transitioned to House of
Grace2 in July 2015, where she stayed until May 2016. Scott testified that, after
leaving House of Grace, Zuehl missed a mandatory counseling appointment and
failed to report her absence to her probation officer. Scott testified that he could
not trust Zuehl to tell him if she started using drugs again.
Zuehl offered testimony as to her progress in overcoming addiction and
establishing a stable environment for her children. Zuehl testified that she had
been sober since May 2015. Zuehl testified that she had completed phase one
of her drug and alcohol treatment program and that there were no more phases
2 House of Grace is a faith-based home for women who are in recovery from addiction.
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to complete in Oregon. Zuehl provided the trial court with two UAs, one taken as
recently as September 2016. The UAs were both negative for drug use. Zuehl
testified that drug testing was done at the discretion of her probation officer.
Zuehl also testified that she had attended 40 narcotics anonymous meetings
since she was last incarcerated. Zuehl did not have any documentation to
provide the trial court concerning her narcotics anonymous meetings.
Zuehl testified that she was fit to care for M.K.W. Zuehl testified that
M.K.W. would have access to a school, family counseling, church, and
extracurricular activities while living in Oregon. Zuehl testified that M.K.W. would
be physically closer to both of her sisters while living in Oregon than she was
while living with Swimm. Finally, Zuehl testified that she continued to make
improvements in her life to provide a stable environment for her daughters.
The trial court found that Zuehl had been convicted of forgery on two
occasions and that, being crimes of dishonesty, Zuehl's credibility was
questionable. The trial court found that Zuehl had made some progress in her
stability and sobriety but that it was too premature to know whether her progress
would continue. The trial court found that Zuehl had a history of drug abuse,
relapses, and failed treatment attempts. The trial court noted that, without
evidence of ongoing drug and alcohol treatment, recovery could not be
established. The trial court found that Zuehl had not been sober for more than a
year.
The trial court also found that Zuehl's living environment was unstable.
The trial court found that Zuehl has historically had few jobs, that she has a GED,
5 No. 76215-0-1/6
and that she "basically lives as she can, and that certainly does not make her a fit
parent." The trial court also found that Zuehl's mental health was an issue. The
trial court noted that Zuehl provided no evidence as to her diagnosis or treatment
and no evidence from which the court could discern whether Zuehl's mental
health situation has been overcome or dealt with. The trial court found that this
made Zuehl an unfit parent.
The trial court found that Zuehl's "lack of insight as to the detrimental
effects of her lifestyle and the impact of the move on the child demonstrates poor
parenting judgment and makes her currently parentally unfit." The trial court
noted that "it does appear that she is raising an 11 month old appropriately, but
that doesn't mean she can raise an elementary school student appropriately."
The trial court pointed out that Zuehl and her partner are not married.
The trial court found that Swimm's home was the ideal environment for
M.K.W. The trial court noted that, aside from Zuehl, all of M.K.W.'s family
resides in Washington and M.K.W. has visitation with her father and sisters while
living with Swimm. The trial court found that it was in M.K.W.'s best interest to be
placed with Swimm and that M.K.W.'s potential future with her mother was
uncertain.
The trial court found by clear, cogent, and convincing evidence that Zuehl
was unfit. The trial court also found that, even assuming that Zuehl were fit, the
detrimental effects of moving M.K.W. would not be overcome by Zuehl's fitness.
Finally, the trial court found that it was in M.K.W.'s best interest to be placed with
Swimm. Zuehl now appeals.
6 No. 76215-0-1/7
II
We review a trial court's custody disposition for an abuse of discretion. In
re Custody of C.D., 188 Wn. App. 817, 826, 356 P.3d 211 (2015). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 47,
940 P.2d 1362(1997). We uphold a trial court's findings of fact when supported
by substantial evidence. C.D., 188 Wn. App. at 826 (citing In re Custody of
S.H.B., 118 Wn. App. 71, 79, 74 P.3d 674 (2003)).
Pursuant to RCW 26.10.030, a nonparent may petition a court for custody
of a child "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." Upon filing the
petition, the nonparent must obtain a court order of adequate cause. RCW
26.10.032. "[T]he requisite showing [of adequate cause] by the nonparent is
substantial and a nonparent will be able to meet this substantial standard in only
'extraordinary circumstances." In re Custody of B.M.H., 179 Wn.2d 224, 236,
315 P.3d 470(2013)(internal quotation marks omitted)(quoting In re Custody of
Shields, 157 Wn.2d 126, 145, 136 P.3d 117(2006)). "To demonstrate adequate
cause, the nonparent petitioner must allege specific facts that, if proved true,
would establish a prima facie case 'that the parent is unfit or that placing the child
with the parent would result in actual detriment to the child's growth and
development." In re Custody of L.M.S., 187 Wn.2d 567, 576, 387 P.3d 707
(2017)(quoting In re Custody of E.A.T.W., 168 Wn.2d 335, 338, 227 P.3d 1284
(2010)).
7 No. 76215-0-1/8
"A parent is unfit if he or she cannot meet a child's basic needs." L.M.S.,
187 Wn.2d at 576 (citing B.M.H., 179 Wn.2d at 236; RCW 26.44.010 (the state
may intervene into the parent-child relationship in "instances of nonaccidental
injury, neglect, death, sexual abuse and cruelty to children by their parents ...
and in the instance where a child is deprived of his or her right to conditions of
minimal nurture, health, and safety")). "Whether placement with a parent will
result in actual detriment to a child's growth and development is a highly fact-
specific inquiry, and Ip]recisely what might [constitute actual detriment to]
outweigh parental rights must be determined on a case-by-case basis.' B.M.H.,
179 Wn.2d at 236 (alterations in original)(internal quotation marks omitted)
(quoting Shields, 157 Wn.2d at 143). Examples include,(1)"when a deaf child
needed a caregiver who could effectively communicate with the child and the
father was unable to do so,"(2)"when a suicidal child required extensive therapy
and stability at a level the parents could not provide," and (3)"when a child who
had been physically and sexually abused required extensive therapy and stability
at a level the parent could not provide." B.M.H., 179 Wn.2d at 236.
"The actual detriment standard does not focus on the best interests of the
child." In re Custody of J.E., 189 Wn. App. 175, 185, 356 P.3d 233(2015). "For
example, la] nonparent's capacity to provide a superior home environment to
that which a parent can offer is not enough to' establish actual detriment."
189 Wn. App. at 185 (alteration in original)(quoting In re Custody of C.C.M., 149
Wn. App. 184, 204, 202 P.3d 971 (2009)).
8 No. 76215-0-1/9
A
We begin with an analysis of the trial court's findings related to parental
unfitness.
"Nonparental custody cases often involve a young parent who struggles
with an addiction or financial independence and gives one or more children to
grandparents or other relatives to temporarily raise." In re Custody of A.L.D., 191
Wn. App. 474, 495, 363 P.3d 604(2015). The "test for fitness of custody is the
present condition of the mother and not any future or past conduct." A.L.D., 191
Wn. App. at 506.
The first set of findings made by the trial court relate to Zuehl's drug and
alcohol use. The trial court found that Zuehl had a history of substance abuse
and relapse. The trial court found that Zuehl had not been sober for more than
one year prior to trial and that she had failed to produce evidence proving her
recovery. The trial court found that these facts made Zuehl unfit.
We conclude that the trial court erroneously placed the burden on Zuehl to
prove current fitness. Contrary to the trial court's findings, the only testimony
regarding Zuehl's sobriety came from Zuehl and Scott, who each testified that
Zuehl had been sober since May or June 2015. Swimm testified that she had
contacted Zuehl's probation officer and was told that Zuehl had not failed any
UAs. Zuehl produced two UAs at trial, both of which were negative for drug use.
Zuehl produced a certificate of completion for phase one of a drug treatment
program. No witness testified that Zuehl had used drugs or alcohol in the 18 or
9 No. 76215-0-1/10
19 months leading up to trial. Together, this evidence cannot support the trial
court's finding that Zuehl had not been sober for more than one year.
Moreover, evidence of Zuehl's past drug use, without more, is insufficient
to establish current unfitness. In re Dependency of Brown, 149 Wn.2d 836, 841,
72 P.3d 757(2003). The burden of proof rested on Swimm to establish by clear,
cogent, and convincing evidence that Zuehl was currently unfit. Swimm failed to
produce any evidence at trial establishing that Zuehl was currently unfit due to
drug or alcohol use. By relying on evidence of past drug use and requiring Zuehl
to prove the absence of current drug use, the trial court required Zuehl to prove
current fitness. The trial court applied the incorrect burden of proof.3
The next set of findings made by the trial court relate to Zuehl's living
environment. The trial court found that Zuehl has had few jobs, that she "lives as
she can," and that her housing was unstable. The trial court also found that
Zuehl's mental health was an issue. The trial court found that these factors
made Zuehl currently unfit.
As was the case with Zuehl's drug and alcohol addiction, Zuehl and Scott
were the only witnesses to offer testimony as to Zuehl's current living
environment. Swimm, Santose, and Walters testified that they had never been to
Oregon to see Zuehl. Zuehl and Scott were also the only witnesses to testify
regarding Zuehl's current employment. Zuehl and Scott testified that Zuehl is a
3 The trial court found that Zuehl's credibility was questionable. We do not review credibility determinations or weigh evidence on appeal. In re Marriage of Fahey, 164 Wn. App. 42,62, 262 P.3d 128(2011). But even if Zuehl's testimony regarding her current sobriety is given no weight, we still conclude that the trial court's finding is unsupportable given the complete absence of evidence that Zuehl had abused drugs or alcohol in the 18 or 19 months leading up to trial.
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full time student. Scott testified that Zuehl works part time in addition to attending
school.
Zuehl was the only witness to offer testimony regarding her mental health.
Zuehl testified that she voluntarily sought mental health treatment for anxiety and
that she was taking medication to help manage her anxiety disorder. No witness
testified that Zuehl's mental health was a concern or that Zuehl was unfit due to
her mental health.
We conclude that the trial court applied the wrong burden of proof in
finding that Zuehl's living environment and mental health made her currently
unfit. Zuehl moved to Tillamook County in Oregon in September 2014 and has
lived there since. Zuehl has been successfully raising a daughter with Scott in
Tillamook, attends school full time, and works part time. No witness offered
testimony to the contrary. Although Zuehl relapsed and served jail time in the
intervening years, she was not incarcerated at the time of trial. Zuehl voluntarily
sought mental health treatment for anxiety. No one testified that Zuehl's mental
health made her unfit.
No witness testified that Zuehl's living environment was unstable or that
Zuehl's mental health was a concern. No witness testified that Zuehl was
currently using drugs or alcohol. The only testimony suggesting that Zuehl is
unfit focused on past conduct. Nevertheless, the trial court required Zuehl to
prove job and housing stability, prove that she had overcome addiction, and
prove that her mental health was being properly treated. We note that, in its
order finding adequate cause for a hearing, the trial court found that Swimm had No. 76215-0-1/12
not alleged specific facts that, if proved true, would establish a prima fade case
that Zuehl was unfit. Yet, at trial, Zuehl was expected to overcome a
presumption of unfitness. The trial court erred.
We next turn to the trial court's finding that placement with Zuehl would
result in detriment to M.K.W.
The trial court found that Zuehl showed a lack of insight into the
detrimental effects of removing M.K.W.from Swimm's care. The trial court found
that Swimm's home was the ideal environment for M.K.W. and that M.K.W. did
not have the same connection to friends and family in Oregon that she did in
Washington. Finally, the trial court found that it was in M.K.W.'s best interests to
be placed with Swimm. Based on these findings, the trial court found that
placement with Zuehl would result in detriment to M.K.W.
We conclude that the trial court erroneously relied on the constitutionally
insufficient "best interests of the child" standard, Shields, 157 Wn.2d at 143-44,
and failed to place a heightened burden upon Swimm to prove by clear, cogent,
and convincing evidence that placement with Zuehl would result in actual
detriment to M.K.W.'s long-term growth and development.
Rather than finding that placement with Zuehl would result in actual
detriment, the trial court's findings focus on the potential detriment to M.K.W. if
she is removed from Swimm's care. But "[e]vidence that the nonparent can
provide a more comfortable living environment is insufficient alone to establish a
detrimental effect on the child if returned to the parent." C.D., 188 Wn. App. at
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827 (citing In re Custody of Anderson, 77 Wn. App. 261, 264, 890 P.2d 525
(1995)). Other than the negative effects of removing M.K.W.from her friends
and family in Washington, no witness testified what, specifically, about placement
with Zuehl would result in actual detriment to M.K.W.'s growth and development.
Rather, the trial court found that M.K.W.'s future with her mother was "uncertain."
This falls short of the required standard.
The trial court's focus on M.K.W.'s best interests "is insufficient to offset
the 'considerable deference" that must be afforded to Zuehl. J.E., 189 Wn. App.
at 190 (quoting B.M.H., 179 Wn.2d at 234).
Ill
The facts of this case are unfortunate. Zuehl's history of substance abuse
and crime have prevented her from caring for her daughter for years. In her
absence, Swimm has provided M.K.W. with stability and a loving home.
Nevertheless, in order to overcome Zuehl's constitutionally protected interest in
raising her child, Swimm must show by clear, cogent, and convincing evidence
that Zuehl is unfit or that placement with Zuehl would result in actual detriment to
M.K.W. By relying on Zuehl's past conduct as a substitute for present fitness and
by focusing on the best interests of the child to find actual detriment, the trial
court applied the incorrect burden of proof.
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We reverse the order granting non parental custody to Swimm and remand
for further proceedings consistent with this opinion.4
We concur:
- 65 t3e.cli-e(4•0_,I
4 We neither require nor forbid the commencement of a new trial. It will be the facts as they exist at the time that the superior court again asserts control over this matter that will dictate the appropriate steps to be taken. - 14 -