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In re Custody of S.R.

Court of Appeals of Washington, Division 3

September 30, 2014

In the Matter of the Custody of S.R. Kevin James et al., Respondents ,
Alicia McDonald et al., Appellants

Appeal from Spokane Superior Court. Docket No: 09-3-02721-6. Judge signing: Honorable Annette S Plese. Judgment or order under review. Date filed: 12/03/2012.

Gary R. Stenzel (of Gary R. Stenzel PS ), for appellants.

Herbert J. Landis, for respondents.

Authored by Kevin M. Korsmo. Concurring: Stephen M. Brown, George B. Fearing.


Page 1191

[183 Wn.App. 805] Korsmo, J.

¶ 1 We conclude that when an outside party challenges a third party nonparental child custody order, the " fourth party" must seek to modify the existing custody ruling rather than file a new third party action. We reverse and remand this action for further proceedings.


¶ 2 S.R. was born to Alicia Croston (mother) and Jack Rosman (father) on November 4, 2004. She resided initially [183 Wn.App. 806] with her mother for two years.[1] At that point, S.R. was moved to the care of Ms. Croston's parents, James and Deena McDonald, due to the fact that S.R.'s asthma acted up badly in the face of her mother's smoking habit. The McDonalds eventually filed a third party custody action and the mother joined it. On November 6, 2008, the court granted a final order granting third party custody to the McDonalds.

¶ 3 Respondents Kevin James and Catherine Lyle filed a nonparental custody petition in late October 2009. Ms. Lyle is Jack Rosman's sister. Both parents and the McDonalds joined the petition and S.R. moved into the James-Lyle home. Due to health concerns and advancing age, the McDonalds believed that S.R. should be with younger parents. Although joining the petition, the mother later filed declarations that disagreed with proposed visitation and stating her intent to eventually take full custody of S.R. The James-Lyle petition focused on deficiencies of the parents and did not address the McDonalds. After finding good cause, the court entered an order granting temporary placement with James and Lyle on January 29, 2010. The order stated that the rights and obligations of the McDonalds under the 2008 order " shall transfer to Kevin James and Catherine Lyle under this order on a temporary basis."

¶ 4 After an allegation that Ms. Croston's boyfriend (and now current husband) molested S.R., the court restricted contact between him and the child. Four months later, Ms.

Page 1192

Croston and the McDonalds moved to dismiss the James-Lyle petition. The McDonalds alleged that the James-Lyle petition was improperly filed and sought reinstatement of the 2008 custody order. The McDonalds and the mother both sought to withdraw their joinder with the petition. For [183 Wn.App. 807] relief, the mother sought to have S.R. returned to the McDonalds.

¶ 5 The motions were heard before a court commissioner on September 30, 2010. The commissioner adjusted the residential schedule and permitted the McDonalds and the mother to withdraw their joinder to the James-Lyle petition.[2] He also consolidated the 2009 James-Lyle petition with the 2008 case and denied the motion to dismiss the James-Lyle petition in light of a pending trial on the petition. The commissioner ordered a bonding and attachment study.

¶ 6 The record[3] does not reflect what happened with the then-pending trial, but the court entered on January 24, 2011, findings of fact and conclusions of law in support of a final parenting plan in favor of Mr. James and Ms. Lyle. The order indicates that standing was " by agreement." Section 2.7 of the order, " Best Interest of the Child," focused on the fact that S.R. had not resided with either parent since 2008 and that neither parent was able to consistently perform parental functions. Section 2.8, " Adequate Cause," was left blank. The petition indicated that the mother would show adequate cause by completing a Circle of Security program and could seek modification of the plan to change primary placement. No decree granting the James-Lyle petition was entered.

¶ 7 Five months later, James and Lyle moved to adjust the residential plan in response to S.R. being exposed to secondhand smoke at the McDonalds' residence. Finding no basis for modification, the court did clarify that S.R. was not to be exposed to any secondhand smoke. In November 2011, the parties were back in court on the mother's motion to [183 Wn.App. 808] expand visitation. The motion was denied due to the fact that the therapist S.R. and her mother had been seeing had stepped down.

¶ 8 James and Lyle filed a motion for review of the third party custody order on August 21, 2012. They sought to strike the provision allowing Ms. Croston to seek modification of the parenting plan upon showing significant improvement in her life. Ms. Croston and her parents opposed the motion.

¶ 9 The court heard the motion September 6, 2012. The court indicated that in view of Ms. Croston's failure to progress toward achieving stability in her life and meeting other requirements such as cessation of smoking, it was in the best interests of S.R. to enter a final parenting plan. The court granted the motion to strike the reunification provision of the 2011 order. A new final parenting plan that deleted the ...

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