In the Matter of the Custody of S.M. and A.M.
JOHN MCCULLA JR., Defendant. JOHN MCCULLA SR. and ANNACARIN MCCULLA, Respondents, and CAREY MCCULLA, nka CAREY MILTON, Appellant,
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 order. We reverse and remand for a new adequate cause
hearing consistent with this opinion.
and A.M. are the children of Carey Milton and John McCulla,
Jr. Both Milton and McCulla, Jr. have a history of substance
abuse, and Milton has struggled with bipolar disorder.
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, S.M.
was seven years old and A.M. was three years old.
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.
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
Regarding the respondent mother, she suffers from suicidal
ideations, is medically diagnosed as bipolar, and has
admitted to 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.
[T]hey 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.
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
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.
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 have been able to finish an
associate degree, maintain employment for over six months,
get my own apartment and regain control of my life.
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
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 ...