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In re Custody of B.M.H.

Supreme Court of Washington, En Banc

November 27, 2013

In the Matter of the Custody of B.M.H.
v.
Laurie Holt, Petitioner Michael Holt, Respondent,

Argued September 27, 2012.

Page 471

Appeal from Clark County Superior Court. No. 10-3-00456-1. Honorable Scott Allen Collier.

Catherine Wright Smith and Valerie A. Villacin (of Smith Goodfriend PS ); and Robert M. Vukanovich, for petitioner.

Carolyn M. Drew and Patricia S. Novotny, for respondent.

Sarah E. Lysons, Katherine D. Bennett, Bobbe J. Bridge, and Jean W. Waller on behalf of Legal Voice, Center for Children & Youth Justice, and Guardian ad Litem Jean Waller, amici curiae.

Sarah A. Dunne, Nancy Lynn Talner, Cheryl Kleiman, David Ward, Sarah E. Lysons, and Christine J. Kim on behalf of American Civil Liberties Union of Washington, Center for Children & Youth Justice, and Legal Voice, amici curiae.

AUTHOR: Justice Steven C. González. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Pro Tem. Tom Chambers. AUTHOR: Chief Justice Barbara A. Madsen. AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Justice Charles W. Johnson, Justice J.M. Johnson.

OPINION

Page 472

González, J.

[179 Wn.2d 229] ¶ 1 B.M.H.'s natural father died six months before he was born. His mother's former boyfriend, Michael Holt, was present at B.M.H.'s birth and, shortly afterward, married his mother, Laurie Holt. Mr. Holt has petitioned for third party custody under chapter 26.10 RCW or, alternatively, an adjudication of de facto parentage. The primary question for review is whether, under In re Parentage of M.F., 168 Wn.2d 528, 228 P.3d 1270 (2010), no former stepparent may bring a de facto parentage petition. We are also asked to decide whether there was adequate cause to support Mr. Holt's nonparental custody petition.

¶ 2 We find Mr. Holt has not met the high burden imposed on those seeking third party custody. However, we find he is entitled to maintain his de facto parentage action. The Court of Appeals correctly concluded that our holding in M.F. does not bar Mr. Holt from petitioning for de facto parentage. The legislature inevitably did not contemplate every conceivable family constellation, and drawing an arbitrary categorical bar based on an individual's status as a stepparent or a former stepparent would preclude legitimate parent-child relationships from being adjudicated. Unlike the specific factual scenario in M.F., the circumstances claimed by Mr. Holt have not been contemplated by the legislature and addressed in Washington's statutory scheme. Mr. Holt alleges that Ms. Holt, B.M.H.'s only other parent, consented to and fostered his parent-child relationship with B.M.H., and we have already held that by requiring consent to be proved, the de facto parentage test adequately protects parents' fundamental rights. See In re Parentage of L.B., 155 Wn.2d 679, 701, 712, 122 P.3d 161 (2005). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 3 Ms. Holt and Mr. Holt began a romantic relationship in 1993 and had a son, C.H.,

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in 1995. The couple separated [179 Wn.2d 230] in 1998, without having married, and Ms. Holt soon became engaged to another man. Unfortunately, her fiancé died in an industrial accident in 1999 while she was three months pregnant with his biological child, B.M.H.

¶ 4 Mr. Holt provided significant emotional support to Ms. Holt during the pregnancy, was present at B.M.H.'s birth, and even cut B.M.H.'s umbilical cord. Mr. Holt and Ms. Holt married shortly after B.M.H.'s birth but divorced in 2001. The resulting parenting plan designated Ms. Holt as C.H.'s primary residential parent and gave Mr. Holt residential time every other weekend. The parenting plan did not include provisions for B.M.H., but the parties do not dispute that B.M.H. essentially followed the same visitation schedule as C.H.

¶ 5 Mr. Holt was actively involved in B.M.H.'s life. In 2002, Ms. Holt changed B.M.H.'s last name from the biological father's last name to Mr. Holt's last name. Ms. Holt and Mr. Holt discussed Mr. Holt's adopting B.M.H. in 2007, but according to the guardian ad litem (GAL), adoption was not pursued because of the effect it might have on the survivor benefits that B.M.H. receives by virtue of his biological father's death.

¶ 6 Ms. Holt married another man in 2007 but divorced in 2008. During that relationship, Mr. Holt claims that Ms. Holt started to separate B.M.H. from Mr. Holt's visitations with C.H. In the summer of 2009, C.H. moved in with Mr. Holt. The parties dispute the reason for the move.

¶ 7 In late 2009 or early 2010, Mr. Holt learned that Ms. Holt planned to move with B.M.H. from Vancouver, Washington, to her new boyfriend's home in Castle Rock, about 50 miles away. On February 23, 2010, Mr. Holt filed a nonparental custody petition, alleging that Ms. Holt was not a suitable custodian for B.M.H. He explained that Ms. Holt " is threatening to move [B.M.H.] out of the area and thus disrupt the close relationship that [he] and [B.M.H.] have together." Clerk's Papers (CP) at 4. Mr. Holt also asked the court to find that he was B.M.H.'s de facto parent. Mr. [179 Wn.2d 231] Holt alleged that " [Ms. Holt] held [him] out as the child's father in all respects" ; that he and B.M.H. are " extremely bonded" ; and that " [B.M.H.] refers to [him] as his father." CP at 4.

¶ 8 Mr. Holt submitted a declaration with his petition. Mr. Holt's declaration recounted his visitation history with B.M.H. after he and Ms. Holt divorced:

Since the time of our divorce when Laurie does not have a boyfriend or husband in her life we communicate fabulously and we don't have issues with regard to our residential time with the children. However, Laurie also has a disturbing pattern of getting into multiple and very short-term relationships with other men and frequently during those times she has on occasion tried to limit my involvement with our son, [B.M.H.].

CP at 20. Mr. Holt's declaration stated that during Ms. Holt's first subsequent marriage she " made some minimal efforts to reduce my time with B.M.H." Id. Mr. Holt described an occasion when Ms. Holt told him that he could no longer see B.M.H. because he had given B.M.H. a birthday card from B.M.H.'s maternal grandparents against her wishes. Mr. Holt stated that in August 2007, when Ms. Holt started to date the man she married in December 2007, " she began to pull [B.M.H.] away from seeing me. For the first time in [B.M.H.]'s 8 year life[, she] began splitting [B.M.H.] and [C.H.] up during visitation." Id. Ms. Holt divorced that husband in 2008, and according to Mr. Holt, " Laurie has had a number of relationships since her divorce in 2008. ... However, fortunately until now Laurie has not allowed these relationships [to] interfere[ ] with my relationship with [B.M.H.]" CP at 21. He further stated that after Ms. Holt's 2008 divorce, she has " started relationships and moved several different men in and out of her home in Vancouver. These relationships have been confusing and disruptive to [B.M.H.]." CP at 22.

¶ 9 Along with his declaration, Mr. Holt submitted copies of a photograph album that Ms. Holt made him for Father's [179 Wn.2d 232] Day, which contained handwritten captions such as, " The first time you met your son, [B.M.H.]" and " There was no doubt he is your son," as well as a photograph of the order changing

Page 474

B.M.H.'s last name to Mr. Holt's last name. CP at 49-52.

¶ 10 Mr. Holt also submitted declarations from a co-worker and from his wife before Ms. Holt, describing him as a dedicated father. Mr. Holt's former wife stated:

Over the 10 years I have known [B.M.H.], Michael has never treated him any differently than any of his other children. [B.M.H.] is as loved and as nurtured as his brother [C.H.] I can say state unequivocally that [B.M.H.] sees Michael as his one and only father and he is as loved and bonded with Michael as any boy to his father.

CP at 29. Her declaration also states:

Over the years I've watched as ... Laurie[ ] has attempted to bring other boyfriends, of often transitory and short term relationships, into [B.M.H.]'s life. On some of those occasions Laurie has tried to limit Michael's involvement with [B.M.H.] for short periods of time when she has a new boyfriend and wants him to be involved in [B.M.H.]'s life.

CP at 30.

¶ 11 The court ordered a GAL at Mr. Holt's request and ordered Ms. Holt to keep B.M.H. in his Vancouver school pending the GAL's report and to continue to allow Mr. Holt regular residential visitation with B.M.H.

¶ 12 On March 24, after a hearing, the court found that Mr. Holt had established a prima facie case for de facto parentage. Ms. Holt moved for revision, and before the revision hearing this court issued M.F., 168 Wn.2d 528. The parties debated M.F. 's effect on Mr. Holt's de facto parentage action, and after two hearings, the trial court granted Ms. Holt's revision motion and dismissed Mr. Holt's de facto parentage action, finding that " M.F.... excludes [Mr. Holt from asserting a de facto parentage cause of action] based [179 Wn.2d 233] on his former marriage to [Ms. Holt] and on the filing of a nonparental custody action." CP at 299-300.

¶ 13 On May 19, the GAL submitted a report stating that B.M.H. viewed Mr. Holt as a father and that it would be detrimental for B.M.H. to terminate contact with Mr. Holt.

¶ 14 Before the adequate cause hearing on the nonparental custody action, Mr. Holt submitted two more declarations--one by his mother and one by Ms. Holt's father, stating that B.M.H. viewed Mr. Holt as his father. At the adequate cause hearing, Mr. Holt informed the trial court that " removing [him] from [B.M.H.]'s life as his father" would be detrimental to B.M.H.'s growth and development.

¶ 15 On August 20, the trial court found that adequate cause existed to proceed to a show cause hearing. The adequate cause finding reads:

The Guardian Ad Litem has testified that it is in the child's best interest to have a continued relationship with the petitioner, [Mr. Holt]. Based upon all the affidavits, declarations and guardian ad litem report, the Court believes there is enough documentation set forth to proceed to trial on the non parental custody petition. The Court finds that if the Respondent/mother denies contact between Petitioner and minor child it would cause actual detriment to the minor child's growth and development if the relationship between the minor child and the Petitioner is not protected, and the Court has concerns that the mother may withhold visitation contact in the future.

CP at 155. At Mr. Holt's request, the trial court appointed an expert to determine " whether actual detriment would result in the termination of the relationship between Michael and [B.M.H.]" CP at 145.

¶ 16 Ms. Holt moved for discretionary review of the trial court's adequate cause finding under RAP 2.3(b)(2). After receiving CR 54(b) certification from the trial court, Mr. Holt appealed the trial court's dismissal of his de facto parentage action. The Court of Appeals granted discretionary [179 Wn.2d 234] review of the trial court's adequate cause finding and consolidated review with Mr. Holt's de facto parentage appeal. The Court of Appeals reinstated the de facto parentage petition and affirmed the order for a show cause hearing on the nonparental custody petition. In re Custody of B.M.H., 165 Wn.App. 361,

Page 475

267 P.3d 499 (2011). Ms. Holt petitioned this court for review, which we granted. In re Custody of B.M.H., 173 Wn.2d 1031, 277 P.3d 668 (2012).

II. Issues

¶ 17 (1) Whether Mr. Holt established adequate cause for a show cause hearing on his nonparental custody petition.

¶ 18 (2) Whether Mr. Holt is barred from proving that he is B.M.H.'s de facto parent.

¶ 19 (3) Whether either party should be awarded attorney fees.

III. Analysis

¶ 20 In parentage and child custody disputes we afford considerable deference to parents as we balance their fundamental right to make decisions concerning the care, custody, and control of their children with the interests of other parties and the need to ensure stable and safe environments for children. See In re Custody of Smith, 137 Wn.2d 1, 13-14, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). We find that the trial court erred by finding adequate cause on the third party custody petition and dismissing Mr. Holt's de facto parentage petition. Mr. Holt's allegations about Ms. Holt's behavior, if proved, would not meet the high burden of showing that Ms. Holt is unfit or that her continued custody of B.M.H. would result in actual detriment to his growth and development.

¶ 21 But Mr. Holt is entitled to an adjudication of whether he is B.M.H.'s de facto parent. Legal parent-child [179 Wn.2d 235] relationships arise in various ways under Washington law, including biology, presumptions of parentage (chapter 26.26 RCW), and adoption (chapter 26.33 RCW). We hold that the fact that Mr. Holt was once B.M.H.'s stepfather is not an automatic bar to establishing de facto parentage. We found the specific factual scenario in M.F. was contemplated by the legislature and addressed in the third party custody statute, but we cannot say the same of the circumstances here, where Mr. Holt alleges he formed a parent-child relationship with the consent of all existing parents after entering B.M.H.'s life at birth following the death of B.M.H.'s biological father. Because there is no statutory avenue for Mr. Holt to petition for parentage, the de facto parentage doctrine fills this statutory void and provides for adjudication of whether Mr. Holt has undertaken a permanent role as B.M.H.'s parent.

1. Adequate Cause on Third Party Custody Petition

¶ 22 Under chapter 26.10 RCW, a third party can petition for child custody, but the State cannot interfere with the liberty interest of parents in the custody of their children unless a parent is unfit or custody with a parent would result in " actual detriment to the child's growth and development." In re Custody of E.A.T.W., 168 Wn.2d 335, 338, 227 P.3d 1284 (2010); In re Custody of Shields, 157 Wn.2d 126, 142-43, 136 P.3d 117 (2006). The law's concept of the family rests in part on a presumption that " natural bonds of affection lead parents to act in the best interests of their children," Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (citing 1 William Blackstone, Commentaries *447), and only under " 'extraordinary circumstances'" does there exist a compelling state interest that justifies interference with the integrity of the family and with parental rights. Shields, 157 Wn.2d at 145 (quoting In re Marriage of Allen, 28 Wn.App. 637, 649, 626 P.2d 16 (1981)). To limit disruptions in family life, chapter 26.10 RCW places a high threshold burden on a petitioner seeking [179 Wn.2d 236] nonparental custody to allege specific facts that, if proved true, would meet this standard. E.A.T.W., 168 Wn.2d at 338-39; RCW 26.10.032(1). If the court finds adequate cause for hearing on the petition, the burden shifts to the respondent to show cause why the requested order should not be granted. RCW 26.10.032(2).

¶ 23 A parent is unfit if he or she cannot meet a child's basic needs, and in such cases, the State is justified in removing the child from the home and in certain cases, permanently terminating parental rights. RCW 26.44.010 (providing that in " instances of nonaccidental injury, neglect, death, sexual

Page 476

abuse and cruelty to children by their parents" and " where a child is deprived of his or her right to conditions of minimal nurture, health, and safety, the state is justified in emergency intervention based upon verified information" ); see also Shields, 157 Wn.2d at 142-43.

¶ 24 Whether placement with a parent will result in actual detriment to a child's growth and development is a highly fact-specific inquiry, and " '[p]recisely what might [constitute actual detriment to] outweigh parental rights must be determined on a case-by-case basis.'" Shields, 157 Wn.2d at 143 (quoting Allen, 28 Wn.App. at 649). In Shields, we noted that when this heightened standard is properly applied, the requisite showing required by the nonparent is substantial and a nonparent will be able to meet this substantial standard in only " 'extraordinary circumstances.'" Id. at 145 (quoting Allen, 28 Wn.App. at 649). The actual detriment standard has been met, for example, when a deaf child needed a caregiver who could effectively communicate with the child and the father was unable to do so, see Allen, 28 Wn.App. at 640-41, when a suicidal child required extensive therapy and stability at a level the parents could not provide, see In re Custody of R.R.B., 108 Wn.App. 602, 31 P.3d 1212 (2001), and when a child who had been physically and sexually abused required extensive therapy and stability at a level the parent could not provide, see In re Custody of Stell, 56 Wn.App. 356, 783 P.2d 615 (1989).

[179 Wn.2d 237] ¶ 25 Facts that merely support a finding that nonparental custody is in the " best interests of the child" are insufficient to establish adequate cause. In re Custody of S.C.D.-L., 170 Wn.2d 513, 516-17, 243 P.3d 918 (2010) (grandmother did not show adequate cause to proceed to trial because " the petition implies it would be in the child's best interest to reside with [grandmother], but the 'best interests of the child' standard does not apply to nonparent custody actions" (internal quotation marks omitted) (quoting Shields, 157 Wn.2d at 150)); In re Custody of Anderson, 77 Wn.App. 261, 266, 890 P.2d 525 (1995).

¶ 26 Mr. Holt does not allege that Ms. Holt is unfit. Rather, he alleges that neither biological parent is a suitable custodian because " the biological father of the child is deceased, having died before the birth of the child," and the " [mother] intends to immediately relocate the child to a situation that is unstable." CP at 3. Mr. Holt's petitions and declarations stated that since Ms. Holt's 2008 divorce she has " started relationships and moved several different men in and out of her home in Vancouver" and that " [t]hese relationships have been confusing and disruptive to [B.M.H.]." CP at 22. Mr. Holt stated that he believes " that [B.M.H.] is at risk if this pattern continues." CP at 24. According to Mr. Holt's declaration, " [B.M.H.] has expressed to [Mr. Holt] that he does not want to move to Castle Rock and he is missing his brother and it's all just happening too quickly for him." Id. Mr. Holt's former wife stated in her declaration:

I have observed over the years how Laurie jumps right into relationships head-on leaving very little time for the boys to adjust to the new man in her life. The constant shuffling of boyfriends in and out of the household I believe has taken its toll on both boys but especially on [B.M.H.] who sees Michael as his one and only father.

CP at 30. Ms. Holt's biological father stated in his declaration that " having watched the choices [Laurie] has made and the men come in and out of her life over the years, I feel [179 Wn.2d 238] strongly that the choices she is making now are detrimental to the boys." CP at 133.

¶ 27 Mr. Holt's petition and declarations also stated that B.M.H. viewed Mr. Holt as his father and the two had a close relationship; Ms. Holt was threatening to move B.M.H. out of the area and thus disrupt this close relationship; Ms. Holt had occasionally tried to limit Mr. Holt's contact with B.M.H. when she was involved in relationships with other men, including during her 2007-08 marriage; and Ms. Holt had once told Mr. Holt that he could not see B.M.H. CP at 19-20. The GAL emphasized that B.M.H. viewed Mr. Holt as a father and that it would be detrimental to B.M.H. if Ms. Holt terminated

Page 477

his contact with Mr. Holt. Id. The trial court found in its order that " it would cause actual detriment to the minor child's growth and development if the relationship between the minor child and the Petitioner is not protected" and that the trial court had " concerns that the mother may withhold visitation contact in the future." CP at 155.

¶ 28 Ms. Holt argues that the only harm found by the trial court was based on impermissible speculation that Ms. Holt might terminate contact between Mr. Holt and B.M.H. if she moved. Ms. Holt relies on In re Dependency of T.L.G., 139 Wn.App. 1, 156 P.3d 222 (2007), where the Court of Appeals held that opinions based on a single incident that occurred five years earlier were not an adequate basis for finding that a limitation on visitation for a parent during dependency proceedings was necessary to " protect a child's health, safety, or welfare" under former RCW 13.34.136(1)(b)(ii) (2004). However, the facts alleged by Mr. Holt in his nonparental custody petition point to multiple instances of Ms. Holt limiting his contact with B.M.H. and to Ms. Holt's current decisions, rather than to a single incident in the distant past. Moreover, this court will, if necessary, speculate about future possibilities in making determinations about domestic relations. See, e.g., I ...


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