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In re Custody of S.M.

Court of Appeals of Washington, Division 1

July 1, 2019

In the Matter of the Custody of S.M. and A.M.

          APPELWICK, C.J.

         Milton 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.


         S.M. and A.M. are the children of Carey Milton[1] and John McCulla, Jr. Both Milton and McCulla, Jr. have a history of substance abuse, and Milton has struggled with bipolar disorder.

         On 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.

         McCulla, 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.

         On 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 interests:

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.

         The 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 management.

         Approximately 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.

         In 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.

         Milton 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 allegations.[2]

         On 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 ...

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