FILED June 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Custody of: ) No. 33132-6-III ) M.S., LS., and R.s.,t ) ) Children, ) ) TRACY CRISWELL, ) UNPUBLISHED OPINION ) Petitioner, ) ) DCFS, ) ) Respondent. )
LAWRENCE-BERREY, J. -Tracy Criswell appeals the superior court's order
dismissing her petition for nonparental custody of her three grandchildren. She argues the
superior court made multiple errors and improperly found that she had not established
adequate cause for a hearing on the merits. We affirm on an alternative basis argued
below and on appeal: the superior court did not have authority to hear the nonparental
custody petition because there was a pending dependency action involving these children,
t For purposes of this opinion, the minor children's initials are used in place of their names. No. 33132-6-III In re Custody of MS., I.S., and R.S.
and there is no record that the dependency court ever granted the superior court
concurrent jurisdiction.
FACTS
The Department of Social and Health Services, Division of Children & Family
Services (Department) removed M.S., LS., and R.S. from their mother's care in July
2012. The dependency court later found the children to be dependent. Early on in the
dependency, Ms. Criswell, the children's maternal grandmother, asked the Department to
place the children with her in California.
With Ms. Criswell's permission, the Department requested records from Butte
County Children's Services in California (California Department). Those records
revealed that Ms. Criswell, who has legal custody of a previous boyfriend's two
grandchildren, was involved in a domestic violence incident with her new boyfriend in
March 2013. The incident involved alcohol and marijuana, and the children were present.
The police arrested Ms. Criswell and her boyfriend, and the Department detained the
children. The California Department investigated Ms. Criswell for allegations of
emotional abuse and general neglect of the two children, and determined that those
allegations were substantiated. In the year leading up to this incident, the police
responded to Ms. Criswell's home 16 times for calls involving domestic violence, noise
2 No. 33132-6-III In re Custody of MS., I.S., and R.S.
complaints, welfare checks, neighbor disputes, vandalism, and public intoxication. Ms.
Criswell successfully participated in domestic violence counseling, substance abuse
treatment, counseling, and parent education in California, and the California Department
returned the two children to her care after two months.
In light of the information contained in the California records, the Department was
unable to approve a home study for Ms. Criswell or place M.S., I.S., and R.S. in her care.
After several other placements, the Department eventually placed all three children in the
same licensed foster care home in January 2013. The children all have behavioral or
developmental issues, and the foster parents regularly take the children to counseling,
have support systems and programs in place through their church, and have a
paraprofessional who provides additional support and supervision.
The Department offered services to both biological parents. The parents did not
complete services or remedy their parental deficiencies, and they both relinquished their
parental rights in May 2014. The foster parents are willing to adopt the children. A
contract issue with the Department home study evaluator held up the home study process,
but the foster parents and the Department are working to get a home study done.
3 No. 33132-6-III In re Custody of MS., 1.S., and R.S.
In December 2014, Ms. Criswell filed a prose petition for nonparental custody of
the three children. In her petition, Ms. Criswell alleged that awarding her custody of the
children would be in their best interests because they would be able to
be with the family they grew up with. At one time I had all five children living in my home and I would really love to see us as a hole [sic] again. I also believe they belong with family who loves them dearly and not strangers. They deserve to know their blood relatives.
Clerk's Papers (CP) at 10. Ms. Criswell later filed a handwritten affidavit in support of
her petition, in which she testified that "[t]he reports regarding [the California step-
children], yes they are true but they were returned back in my care after only being
detained for two months." CP at 66. Ms. Criswell also stated that since her involvement
with the California Department in 2013, she has attended counseling, parenting classes,
and has been sober for two years.
After Ms. Criswell petitioned for custody, the dependency court appointed Janelle
Carman to represent the children. Ms. Carman opposed Ms. Criswell's petition in light of
her history with the California Department and the fact that the children are stable in their
current placement. The Department moved to dismiss Ms. Criswell's petition on the
grounds that the superior court did not have the authority to hear it, and argued the
dependency court had exclusive jurisdiction.
4 No. 33132-6-III In re Custody of MS., I.S., and R.S.
The superior court held a hearing on Ms. Criswell' s petition. The court reviewed
the pleadings and dismissed Ms. Criswell' s petition on the grounds that her affidavits did
not establish adequate cause to require a hearing on the merits. In dismissing Ms.
Criswell's petition, the court noted the California Department's substantiated findings of
emotional abuse and neglect. The superior court did not address the Department's
argument that it lacked authority to hear Ms. Criswell's petition. The superior court then
sealed the file associated with Ms. Criswell' s petition, except as to the parties to the
dependency case. 1 Ms. Criswell appeals.
ANALYSIS
The Department argued below and on appeal that the superior court lacked
authority to hear Ms. Criswell' s petition because there was a pending dependency
proceeding and the dependency court never granted concurrent jurisdiction to the superior
court. Where an issue was raised, briefed, and argued by the parties below but not
decided by the trial court, and the parties on appeal have had sufficient opportunity to
brief the issue, an appellate court may affirm the trial court on that alternative basis. LK
1 In her brief, Ms. Criswell notes that the clerk's office initially denied her access to the court file, but that she was eventually able to access the full record by September 2015. Br. of Appellant at 4. This court gave Ms. Criswell two extensions to file her opening brief, which she eventually filed on November 6, 2015. There is no indication that the sealed file hindered Ms. Criswell's ability to argue her case on appeal.
5 No. 33132-6-III In re Custody of MS., I.S., and R.S.
Operating, LLCv. Collection Grp., LLC, 181 Wn.2d48, 70-71, 331 P.3d 1147 (2014).
To the extent the meaning of chapter 26.10 RCW and chapter 13.34 RCW are at issue,
statutory interpretation is a question of law reviewed de novo. State v. Gonzalez, 168
Free access — add to your briefcase to read the full text and ask questions with AI
FILED June 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Custody of: ) No. 33132-6-III ) M.S., LS., and R.s.,t ) ) Children, ) ) TRACY CRISWELL, ) UNPUBLISHED OPINION ) Petitioner, ) ) DCFS, ) ) Respondent. )
LAWRENCE-BERREY, J. -Tracy Criswell appeals the superior court's order
dismissing her petition for nonparental custody of her three grandchildren. She argues the
superior court made multiple errors and improperly found that she had not established
adequate cause for a hearing on the merits. We affirm on an alternative basis argued
below and on appeal: the superior court did not have authority to hear the nonparental
custody petition because there was a pending dependency action involving these children,
t For purposes of this opinion, the minor children's initials are used in place of their names. No. 33132-6-III In re Custody of MS., I.S., and R.S.
and there is no record that the dependency court ever granted the superior court
concurrent jurisdiction.
FACTS
The Department of Social and Health Services, Division of Children & Family
Services (Department) removed M.S., LS., and R.S. from their mother's care in July
2012. The dependency court later found the children to be dependent. Early on in the
dependency, Ms. Criswell, the children's maternal grandmother, asked the Department to
place the children with her in California.
With Ms. Criswell's permission, the Department requested records from Butte
County Children's Services in California (California Department). Those records
revealed that Ms. Criswell, who has legal custody of a previous boyfriend's two
grandchildren, was involved in a domestic violence incident with her new boyfriend in
March 2013. The incident involved alcohol and marijuana, and the children were present.
The police arrested Ms. Criswell and her boyfriend, and the Department detained the
children. The California Department investigated Ms. Criswell for allegations of
emotional abuse and general neglect of the two children, and determined that those
allegations were substantiated. In the year leading up to this incident, the police
responded to Ms. Criswell's home 16 times for calls involving domestic violence, noise
2 No. 33132-6-III In re Custody of MS., I.S., and R.S.
complaints, welfare checks, neighbor disputes, vandalism, and public intoxication. Ms.
Criswell successfully participated in domestic violence counseling, substance abuse
treatment, counseling, and parent education in California, and the California Department
returned the two children to her care after two months.
In light of the information contained in the California records, the Department was
unable to approve a home study for Ms. Criswell or place M.S., I.S., and R.S. in her care.
After several other placements, the Department eventually placed all three children in the
same licensed foster care home in January 2013. The children all have behavioral or
developmental issues, and the foster parents regularly take the children to counseling,
have support systems and programs in place through their church, and have a
paraprofessional who provides additional support and supervision.
The Department offered services to both biological parents. The parents did not
complete services or remedy their parental deficiencies, and they both relinquished their
parental rights in May 2014. The foster parents are willing to adopt the children. A
contract issue with the Department home study evaluator held up the home study process,
but the foster parents and the Department are working to get a home study done.
3 No. 33132-6-III In re Custody of MS., 1.S., and R.S.
In December 2014, Ms. Criswell filed a prose petition for nonparental custody of
the three children. In her petition, Ms. Criswell alleged that awarding her custody of the
children would be in their best interests because they would be able to
be with the family they grew up with. At one time I had all five children living in my home and I would really love to see us as a hole [sic] again. I also believe they belong with family who loves them dearly and not strangers. They deserve to know their blood relatives.
Clerk's Papers (CP) at 10. Ms. Criswell later filed a handwritten affidavit in support of
her petition, in which she testified that "[t]he reports regarding [the California step-
children], yes they are true but they were returned back in my care after only being
detained for two months." CP at 66. Ms. Criswell also stated that since her involvement
with the California Department in 2013, she has attended counseling, parenting classes,
and has been sober for two years.
After Ms. Criswell petitioned for custody, the dependency court appointed Janelle
Carman to represent the children. Ms. Carman opposed Ms. Criswell's petition in light of
her history with the California Department and the fact that the children are stable in their
current placement. The Department moved to dismiss Ms. Criswell's petition on the
grounds that the superior court did not have the authority to hear it, and argued the
dependency court had exclusive jurisdiction.
4 No. 33132-6-III In re Custody of MS., I.S., and R.S.
The superior court held a hearing on Ms. Criswell' s petition. The court reviewed
the pleadings and dismissed Ms. Criswell' s petition on the grounds that her affidavits did
not establish adequate cause to require a hearing on the merits. In dismissing Ms.
Criswell's petition, the court noted the California Department's substantiated findings of
emotional abuse and neglect. The superior court did not address the Department's
argument that it lacked authority to hear Ms. Criswell's petition. The superior court then
sealed the file associated with Ms. Criswell' s petition, except as to the parties to the
dependency case. 1 Ms. Criswell appeals.
ANALYSIS
The Department argued below and on appeal that the superior court lacked
authority to hear Ms. Criswell' s petition because there was a pending dependency
proceeding and the dependency court never granted concurrent jurisdiction to the superior
court. Where an issue was raised, briefed, and argued by the parties below but not
decided by the trial court, and the parties on appeal have had sufficient opportunity to
brief the issue, an appellate court may affirm the trial court on that alternative basis. LK
1 In her brief, Ms. Criswell notes that the clerk's office initially denied her access to the court file, but that she was eventually able to access the full record by September 2015. Br. of Appellant at 4. This court gave Ms. Criswell two extensions to file her opening brief, which she eventually filed on November 6, 2015. There is no indication that the sealed file hindered Ms. Criswell's ability to argue her case on appeal.
5 No. 33132-6-III In re Custody of MS., I.S., and R.S.
Operating, LLCv. Collection Grp., LLC, 181 Wn.2d48, 70-71, 331 P.3d 1147 (2014).
To the extent the meaning of chapter 26.10 RCW and chapter 13.34 RCW are at issue,
statutory interpretation is a question of law reviewed de novo. State v. Gonzalez, 168
Wn.2d 256,263,226 P.3d 131 (2010).
The legislature has enacted numerous statutes to distribute and assign various
superior court matters to dependency courts and family courts, which are both divisions of
the superior court. 2 In re Dependency of E.H, 158 Wn. App. 757, 765, 243 P.3d 160
(2010). One of these statutes, RCW 13.04.030(1), provides that "the [dependency] courts
in this state shall have exclusive original jurisdiction over all proceedings ... [r]elating to
children alleged or found to be dependent as provided in chapter 26.44 RCW and in
RCW 13.34.030 through 13.34.161."
RCW 26.10.030( 1) permits a nonparent to petition for custody of a child. That
statute provides that "[e ]xcept as authorized for proceedings brought under chapter 13. 34
RCW, ... a child custody proceeding is commenced in the superior court by a person
other than a parent, by filing a petition seeking custody of the child." RCW 26.10.030(1)
2 "While these statutes often speak of 'jurisdiction' they are not jurisdictional because they are not the source of the superior courts' power to hear and determine the issues before them." E.H, 158 Wn. App. at 765. "Article IV, section 6 of the state constitution is the source of that power." Id.
6 No. 33132-6-III In re Custody of MS., IS., and R.S.
(emphasis added). RCW 13.34.155(1) authorizes the dependency court hearing a
dependency action to hear nonparental custody petitions.
Partly to prevent multiple courts from entering inconsistent orders, the superior
court must determine whether the subject children are involved in a pending dependency
action before hearing a nonparental custody petition. See RCW 26.10.030(1). If they are,
and unless the dependency court grants concurrent jurisdiction to the superior court, the
superior court must either dismiss or stay the nonparental custody petition. See E.H., 158
Wn. App. at 764 (dependency court did not err by granting concurrent jurisdiction to the
superior court to hear the nonparental custody action); In re Dependency ofJ. WH., 106
Wn. App. 714, 726-27, 24 P.3d 1105 (2001) (superior court correctly stayed the custody
action pending resolution of the dependency proceeding), rev'd on other grounds, 147
Wn.2d 687, 57 P.3d 266 (2002); In re Marriage of Rich, 80 Wn. App. 252,256,907 P.2d
1234 (1996) (superior court had authority to enter final parenting plan in dissolution
proceeding because dependency court had already dismissed dependency petition); In re
Marriage of Perry, 31 Wn. App. 604,608,644 P.2d 142 (1982) (superior court had
authority to proceed with postdivorce custody modification after dependency court
expressly granted superior court concurrent jurisdiction).
7 No. 33132-6-III In re Custody of MS., I.S., and R.S.
Here, there was a pending dependency involving the subject children, and there is
no record that the dependency court ever granted the superior court concurrent
jurisdiction. The superior court thus did not have authority to hear the nonparental
custody petition. Because the superior court lacked the authority to hear the nonparental
custody petition, we do not reach Ms. Criswell's other assignments of error relating to the
superior court proceedings.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Pennell, J.