Debra E. Clawson v. Janelle M. Hunter ( 2016 )

FILED
JANUARY 12, 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 THE MATTER OF THE CUSTODY )
OF: ) No. 32597-1-111
)
K.R.H., )
)
DEBRA ELAINE CLAWSON, )
) UNPUBLISHED OPINION
Respondent, )
)
and )
)
JANELLE MARIE HUNTER, WILLIAM )
F.MAR8(, )
)
Petitioners. )
FEARING, J. - William Marx appeals the trial court's denial of his motion to
vacate a default nonparental custody decree entered against him prior to establishment of
his paternity. The decree granted custody of Marx's daughter, Katerina, to the daughter's
maternal grandmother, Debra Clawson. Katerina is a fictitious name. Marx also appeals
the trial court's denial of his petition for a major modification of the default residential
schedule. We affirm the trial court's refusal to vacate the default decree. We, however,
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reverse the trial court's denial of Marx's petition for a major modification in the child's
residential schedule. We hold that the trial court failed to employ the correct standard
when denying the petition for a major modification. Because of Marx's constitutional
right to the care of his daughter, Debra Clawson, to retain custody of Katerina, needed to
show Marx to be an unfit parent or that Katerina's placement with Marx would result in
actual detriment to Katerina's growth and development. We remand for further
proceedings.
FACTS
Janelle Hunter and appellant William Marx generated a child together in 2010,
although Marx disclaims knowledge of his fatherhood until 2013. In December 2009 and
January 2010, Janelle Hunter and William Marx enjoyed a brief corporeal affair, despite
Hunter's marriage to another. Marx believed Hunter then engaged in sexual relations
with two other men not her husband. Marx claims he ended the brief relationship with
Hunter because of her sexual interactions with others, her possible drug use, and
intervention by police. He does not explain the police involvement.
In a declaration, respondent Debra Clawson, mother of Janelle Hunter, averred
that Hunter, with William Marx present, announced her pregnancy during Christmas
dinner 2009. Clawson was present during the dinner. Marx denies that Hunter
publicized any pregnancy at the Christmas dinner. Marx reasonably notes that Hunter
gave birth to Katerina after only thirty-five weeks of gestation and more than thirty-five
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weeks passed between Christmas and the birth, on August 25. Marx also questions
whether Hunter would announce to her family that a man she met a week before already
impregnated her.
On August 25, 2010, Janelle Hunter gave birth to Katerina. Hunter consumed
methamphetamine while pregnant, and, as a result, Child Protective Services (CPS)
removed Katerina from Hunter's side while the two convalesced in the hospital.
In an order denying William Marx's motion for reconsideration in this nonparental
custody suit, the trial court entered findings of fact that mentioned events during the
dependency action. The findings state that Janelle Hunter identified William Marx as the
father. The findings do not disclose when or under what setting Hunter identified Marx
as the father. Neither party knows if the birth certificate listed Marx as the father.
In a declaration, Debra Clawson testified that someone telephoned William Marx
the day after Katerina's birth and informed him of the birth. According to Clawson,
Marx summarily ended the call. Clawson did not identify the purported caller to Marx
nor did she aver that she overheard the conversation. The declaration also does not
indicate whether the caller informed Marx that he was the father of the child.
On August 31, 2010, the State of Washington filed a dependency action for
Katerina. The record on appeal does not include the pleadings from the dependency
action. In the order denying William Marx's motion for reconsideration in this
nonparental custody suit, the trial court entered a finding of fact that the dependency
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petition listed William Marx as Katerina's biological father.
On September 3, 2010, the State filed a declaration indicating that it left notice of
the dependency action at Marx's last known address, 223 E. LaCrosse, Spokane. The
State gained the address through a search of Qwest telephone records and the Internet.
The findings in this nonparental custody action mentioned that the State "paged" Marx
for a dependency hearing on October 14, 2010, and that Marx did not respond to the
page. We do not know the nature of the page, whether Marx had the capability of
receiving a page, and whether Marx received the page.
In a declaration in support of his motion to vacate the nonparental custody order,
William Marx did not disclose whether he received notice of the dependency action or if
he received a page for a hearing. In the declaration, Marx agreed he learned in early
2010 of Janelle Hunter's pregnancy. He averred that, at the time of the birth of the child,
he did not believe he was the father because the child was born eight months after his
first rendezvous with Hunter and because Hunter enjoyed relations with other men. Marx
testified that Hunter never informed him that he was the father of Katerina.
On September 10, 2010, and after the filing of the dependency action, the State of
Washington placed the two-week-old Katerina with her maternal grandmother, Debra
Clawson. On November 10,2010, the trial court entered an order of dependency for
Katerina, kept the child in the care of Clawson, and granted Clawson leave to obtain a
decree of nonparental custody. Our record does not contain a copy of the dependency
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order. We do not know if the order of dependency included findings declaring William
Marx unfit to parent. William Marx claims the State dismissed the dependency action
because of lack of service on him. He claims the State filed a pleading stating he had not
been served. We do not have a copy of the pleading in order to confirm Marx's
contention.
On January 10, 20 11, Debra Clawson initiated this nonparental custody
proceeding, against her daughter Janelle Hunter and William Marx, for the custody of
Katerina. Katerina was then three-months old. Marx had not yet been legally established
as Katerina's parent. In her petition, Clawson identified Marx as "possible father to"
Katerina. Clerk's Papers (CP) at 4. Clawson alleged that Marx "has never had any
contact with [Katerina] or showed any interest in her." CP at 10. Clawson petitioned for
limited visitation for Marx due to his alleged "[w ]illful abandonment that continues for
an extended period of time or substantial refusal to perform parenting functions." CP at
9. Under a section of the nonparental custody petition titled "Best Interest of the
Children," Clawson wrote: "I think being placed with family is better than being placed
in a foster home." CP at 10. Clawson did not sign the petition under the penalty of
perjury, despite the petition form requiring the signature.
In her proposed residential schedule filed with the nonparental custody petition,
Debra Clawson proposed restricting William Marx's contact with Katerina to supervised
visitations with. twenty-four hours advance notice. Clawson justified the restriction with
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Marx's willful abandonment of his daughter and his conviction of assault of a child in the
third degree. In a declaration later filed, Marx admitted the State charged him with
assault in 2001. Marx averred that he resolved the charge, but does not disclose the
nature of the resolution or whether the State convicted him of the crime. He states that
someone permitted him to see his other children on the same day as the resolution of the
charge. Our appellate record does not include Marx's criminal background.
On January 10,2011, Debra Clawson's son, Corey Clawson, appeared at William
Marx's front door and handed Marx papers. In a March 2014 declaration, Marx avowed
that Clawson delivered him "a couple" faded handwritten papers with portions whited
out. CP at 58. Marx claimed he found no summons in the papers, although he does not
explain why three years later he would remember the absence of a summons and why he
would have known the significance of a summons in 2011. In his declaration, Marx
further averred that he saw no case number on the papers. Marx insisted he was unaware
of a need to respond to the papers or that the papers alleged him to be Katerina's father.
He does not indicate ifhe read any of the papers, whether he recalls the content of what
he read, and how and when he disposed ofthe papers.
Kathryn Fenley, William Marx's girlfriend, signed a declaration in April 2014. In
the declaration, Fenley averred that she observed Corey Clawson serve Marx with
documents in January 2011. Fenley reviewed the documents and described them as a
small stack of papers "whited out and badly faded in places" and lacking the appearance
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of "proper documents." CP at 127. According to Fenley, the paperwork lacked any
summons. On January 11,2011, Corey Clawson filed a return of service, in which he
declared he served William Marx at 223 E. LaCrosse, Spokane, at 8:04 p.m., on January
10,2011, with a copy of the summons, petition, proposed residential schedule, notice of
adequate cause hearing, and a response to petition form.
Neither Janelle Hunter nor William Marx responded to Debra Clawson's
nonparental custody petition. On February 3, 2011, a court commissioner granted
Clawson an order of default, order on nonparental custody, order re: adequate cause,
findings of fact and conclusions of law, and nonparental custody decree. One finding
declared that neither parent is a "suitable custodian" for Katerina because "both parents
failed to meet minimal standards of care for [the child] and failed to complete services."
CP at 30. Another finding averred that the child had been "removed from parental care
due to findings of neglect and/or abuse by CPS." CP at 30. A later finding stated that "it
is in the best interest of [Katerina] to be placed in the custody of petitioner [Debra
Clawson]." CP at 30. No finding expressly declared William Marx to be an unfit parent
or averred that placement of Katerina with Marx would result in actual detriment to the
child's growth and development.
The visitation section of the February 2011 custody decree read that the residential
schedule will establish Marx's visitation rights. Nevertheless, the commissioner signed
no residential schedule.
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We do not know if Debra Clawson or another party sent a copy of the nonparental
custody default order and decree to William Marx. On May 25, 2011, the State dismissed
the dependency proceeding for Katerina.
In July 2013, either the State of Washington or Debra Clawson initiated a paternity
suit against William Marx in order to collect child support from Marx. Our appellate
record contains none of the suit's pleadings. On July 18,2013, Marx submitted to
genetic testing to determine whether he was Katerina's father. On October 9,2013, Marx
sent Debra Clawson a certified letter requesting visitation with Katerina. Clawson never
retrieved the letter. On October 10,2013, the State confirmed paternity of Marx through
the testing. Marx does not explain why he sent his letter requesting visitation one day
before confirmation of his fatherhood, ifhe did not believe himself to be the father. On
October 30,2013, Marx sent Clawson another certified-letter requesting visitation. On
November 1,2013, Clawson collected the letter and contacted Marx to schedule
visitation.
On November 2,2013, William Marx first visited three-year-old Katerina at Debra
Clawson's home. Marx visited from 1:00 to 3:45 p.m. At the conclusion of the visit,
Clawson invited Marx, his son Jaidin, Marx's girlfriend Katherine Fenley, and Fenley's
daughter Kessy to attend a hockey game that evening with Katerina and Katerina's half-
brother, five-year-old Kayden. Marx accepted the invitation. Marx visited Katerina on
November 4, 11, and 14, with Clawson present for all visits. Clawson cancelled a few
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scheduled visits in November while Katerina and Kayden were sick. On November 23
and 29,2013, Marx enjoyed two afternoon unsupervised visits with his daughter.
Katerina adjusted well to visits with William Marx until December 17,2013, when
she first resisted spending time with her father. Debra Clawson deemed Katerina
"crabby" that day. CP at 90. The young girl happily visited Marx on December 18. At
Clawson's offer, Katerina stayed overnight with Marx on December 25,26, and 31.
On January 2, 2014, Debra Clawson began a new job that demanded placing
Katerina in preschool from 8:00 a.m. to 5:00 p.m. every day. Because ofthe new
schedule, Clawson ended weekday visits between Marx and Katerina. Katerina stayed
overnight with Marx on January 4 and 11, and the weekends of January 18 and 25. On
January 24, Katerina's uncle, Corey Clawson, and Corey's girlfriend, Danielle Bergeson,
left Katerina at Marx's home. CP 105. Bergeson signed an affidavit in which she
maintained that Katerina cried in the car on the way to Marx's residence on January 24
and did not want to remain with her father. Marx maintained that Katerina did not cry on
January 24, but Katerina cried herself to sleep on the first night of the weekend stay and
awakened in good spirits the following morning. On January 31, Corey Clawson
dropped Katerina at Marx's home for the weekend. CP at 63. Katerina cried herself to
sleep the first night, but remained happy the rest of the weekend.
Conflict arose between Debra Clawson and William Marx in early February 2014.
According to Marx, Clawson told him she co-slept with Katerina and that Katerina
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should not nap. Marx disagreed with Clawson's sleeping practices. Marx objected to the
amount of sweets and junk food Clawson permitted Katerina. Clawson, meanwhile,
claimed Marx gave the young girl a bubble bath after she told Marx that a physician
advised that bubble baths caused Katerina yeast infections. Marx denied receiving this
advice. Marx worried that a flooded basement in Clawson's home necessitated Katerina
wearing tubes in her ears, while Clawson insisted ear infections ran in her family.
Clawson and Marx both accused each other of manipulating Katerina.
On February 6,2014, Katerina underwent the placement of new tubes in her ears.
After the procedure, William Marx texted Debra Clawson to inquire ofthe success of the
process. Clawson responded that Katerina suffered a fever and Katerina would not visit
with Marx the coming weekend. Marx understood the procedure to be minor and
interpreted Clawson's denial of visitation as an arbitrary interference with visits. Marx
inquired why Katerina could not spend the weekend and Clawson replied that someone
recommended that she allow only supervised visitation as afforded in the February 2011
residential plan. Remember that the court commissioner signed no residential placement
plan or schedule.
On February 6,2014, Debra Clawson offered William Marx a supervised visit at
her house the following Friday or Saturday. Marx and Clawson then exchanged forceful
text messages. Marx wrote that the law prohibited a foster parent from sleeping with a
foster child and he demanded that Clawson immediately end the nighttime habit.
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Clawson directed Marx not to contact her again.
The heated texts ended. On February 19,2014, Debra Clawson proposed to
William Marx a supervised visit at McDonald's on February 22. Marx accepted and
appeared at the restaurant at the appointed time with his son and girlfriend. The visit
ended soon because of Katerina's unwillingness to engage with Marx. Clawson
maintained that Katerina's shyness resulted from her striking heads with another child in
the play area. Clawson testified that she told Marx to allow Katerina time to recover
from the injury. Marx maintained that Clawson interfered with the visit. According to
Marx and his girlfriend, Katerina looked to Clawson for approval before interacting with
them and Clawson looked with distain toward the couple.
PROCEDURE
We arrive at the motions that are the subject of this appeal. On April 4, 2014,
William Marx moved the court, in this nonparental custody action, to vacate the February
2011 default order, findings of fact and conclusions of law, and decree granting custody
of Katerina to Debra Clawson. Marx argued for vacation of the order and decree, under
CR 60(b), because (1) the original decree was void for lack ofjurisdiction since Clawson
failed to complete service of process on him, and (2) he lacked notice that he was
Katerina's father until the 2013 paternity action. In the alternative, Marx sought
modification to the residential schedule. Assuming the court did not order immediate
placement of Katerina with him, Marx requested initial visitation from 2:00 p.m. Friday
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to 9:30 a.m. Monday every week. Marx proposed a residential schedule that gradually
reduced Clawson's custodial time with Katerina. William Marx did not ask for an
evidentiary hearing to determine if Clawson served him with process.
Debra Clawson replied to the motion to vacate and motion to modify visitation
and opposed both of William Marx's requests. Clawson argued that she effectuated
service on Marx and that he failed to show detrimental treatment by Clawson of Katerina
sufficient to warrant a modification of the residential schedule. Clawson contended that
William Marx should have known by 2010 that he was the father of Katerina since
Janelle Hunter announced her pregnancy during a dinner that Marx attended, someone
called Marx a day after the birth of Katerina and announced to Marx the birth, and
Clawson listed Marx as the possible father in her 2011 nonparental custody petition.
Marx filed a motion to strike portions of Clawson's declaration as impermissible hearsay.
On May 5, 2014, the trial court entertained William Marx's motion to vacate.
During oral argument on the motion, Marx did not request that the court conduct a
hearing with oral testimony to determine if Debra Clawson effectuated service of process.
The trial court denied the motion to vacate. The court deemed the motion to be late under
CR 60 and found that William Marx received the summons along with the other
pleadings. The trial court expressed concern about the court commissioner's failure to
sign a residential plan in February 2011.
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A day later, a court commissioner heard argument on William Marx's motion to
modify the third-party custody decree. Marx argued that the establishment of his
paternity created a change in circumstances warranting a modification since Debra
Clawson used the terms of the residential schedule to restrict his contact with Katerina
while he attempted to establish a relationship with his daughter. Marx argued he was the
credible party because he readily disclosed negative aspects of his and Katerina's nascent
relationship, while Clawson submitted a declaration that relied on hearsay and
contradicted statements made in another declaration filed by Corey Clawson's girlfriend.
Marx argued adequate cause existed for the court to conduct a full hearing on a major
modification. In response, Debra Clawson contended that the trial court's statement that
Marx had known for several years that he was the father established as a matter of law
that Marx knew he was the father at the time of Clawson's nonparental custody petition.
Clawson stipulated to a minor modification of the custody decree, but argued against a
major modification.
The court commissioner denied William Marx's request for a major modification.
The commissioner remarked that the standard for a major modification in a nonparental
custody action was the standard applied to a major modification in a parenting plan in a
marriage dissolution action. Under that standard, found in RCW 26.09.260, William
Marx needed to show a substantial change in circumstances, that the child's present
environment is detrimental to the child's physical, mental, or emotional health, and that
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the harm likely to be caused by a change in environment is outweighed by the advantage
to the change to the child. The court commissioner held that Marx did not fulfill the
standard.
The court commissioner found that William Marx met the threshold for a minor
modification, and the commissioner entered a "stair-step residential schedule." Verbatim
Report of Proceedings (VRP) (May 6,2014) at 26. The schedule removed the
requirement that Debra Clawson supervise all visitation, and provided:
For the first month, father to have every Wednesday, 3:00 pm to
7:00 pm. In addition, the father to have every Saturday, noon to 4:00 pm.
After that month, providing all of the time is exercised ... Father to have
every Wednesday, 3:00 pm to 7:00 pm. Father to have every other
weekend, Friday, 3:00 pm to Saturday, 3:00 pm
CP at 137.
On May 14, 2014, William Marx moved the superior court to revise the court
commissioner's denial of his motion for a major modification. Marx also moved for
reconsideration of the trial court's denial of his CR 60(b) motion to vacate. In his motion
for reconsideration, Marx argued: "A determination of whether Mr. Marx was properly
served would be a credibility determination, and Mr. Marx has demonstrated that he is
the more credible of the two." CP at 141. Marx, however, did not request an evidentiary
hearing to resolve the parties' credibility. The trial court denied the motion for
reconsideration and the motion for revision.
LA W AND ANALYSIS
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William Marx's appeal opens a Pandora's jar of issues that could fill the bluebook
of a bar examination. The appeal compels many questions. First, must the trial court
have conducted an evidentiary hearing to resolve the credibility of Marx and his witness,
on the one hand, and Debra Clawson and her witness, on the other hand, before ruling on
whether Clawson served Marx with process? Second, did Clawson complete service of
process in this nonparental custody petition on Marx? Third, should the trial court have
stricken portions of Debra Clawson's declaration? Fourth, was William Marx's motion
to vacate the default order timely? Fifth, assuming the custody decree was valid because
of effective service, did the trial court abuse its discretion in denying Marx's motion to
vacate the default nonparental custody decree? Sixth, did Debra Clawson's failure to
sign the nonparental custody petition under penalty of perjury invalidate the custody
decree? Seventh, did Marx need to file a motion for adequate cause to modify custody
when the trial court never earlier entered a residential placement schedule order? Eighth,
was there adequate cause under RCW 26.09.260 for a major modification in Katerina's
placement? Ninth, did the trial court violate Marx's constitutional right to due process
when entering a nonparental custody decree restricting contact with his daughter before
establishment of his paternity? Tenth, are Marx's constitutional rights to parent infringed
by requiring him to show adequate cause for a major modification of the nonparental
custody decree?
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We rule that William Marx was effectively served and that he may not vacate the
order of default. We hold that William Marx did not show adequate cause to vacate the
default order as adequate cause is defined under RCW 26.09.260. Nevertheless, we hold
that, under our decisions in In re Custody ofTL., 165 Wash. App. 268, 268 P.3d 963
(2011), and In re Custody ofZ.C., No. 3243 I-I-III (Wash. Ct. App. Dec. 15,2015), and
pursuant to constitutional protections afforded a biological parent, Marx did not need to
show adequate cause for a major modification. We therefore vacate the order of
nonparental custody in favor of Debra Clawson. Because of our holding, we need not
address many of the other questions posed by the appeal's circumstances and raised by
the parties.
Issue 1: Did the trial court commit error by failing to conduct an evidentiary
hearing to resolve William Marx's contention that Debra Clawsonfailed to effectuate
service ofprocess?
Answer 1: We decline to address this assignment oferror since William Marx did
not seek, before the trial court, a hearing with live testimony.
William Marx seeks reversal of the trial court's denial of his CR 60(b) motion to
vacate the default nonparental custody decree entered against him in February 2011. The
trial court entered both an order of default and a decree in February 2011.
CR 55 declares:
(c) Setting Aside Default.
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(1) Generally. For good cause shown and upon such terms as the
court deems just, the court may set aside an entry of default and, if a
judgment by default has been entered, may likewise set it aside in
accordance with rule 60(b).
In tum, CR 60 reads, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud; etc. On motion and upon such terms as are
just, the court may relieve a party or the party's legal representative from a
final judgment, order, or proceeding for the following reasons:
(5) The judgment is void;
The motion shall be made within a reasonable time.
William Marx argues that vacation of the order of default and custody decree is
proper under CR 60(b)(5) because he was not properly served a copy of Debra Clawson's
summons and petition for nonparental custody. He contends the trial court lacked
personal jurisdiction over him when entering the order and decree.
A judgment entered in a proceeding failing to comply with procedural due process
requirements is void. In re Marriage ofEbbighausen, 42 Wash. App. 99, 102, 708 P.2d
1220 (1985). A judgment entered without jurisdiction over the parties is void. Lee v. W.
Processing Co., 35 Wash. App. 466, 469,667 P.2d 638 (1983). Proper service of the
summons and complaint is essential to invoke personal jurisdiction over a party, and a
default judgment entered without proper jurisdiction is void. In re Marriage of
Markowski, 50 Wash. App. 633, 635-36,749 P.2d 754 (1988); Mid-City Materials, Inc. v.
Heater Beaters Custom Fireplaces, 36 Wash. App. 480, 486, 674 P.2d 1271 (1984). A
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party may move to vacate a void judgment at any time. In re Marriage ofLeslie, 112
Wn.2d 612,618-19,772 P.2d 1013 (1989). Courts hold a nondiscretionary duty to vacate
void judgments. Leen v. Demopolis, 62 Wash. App. 473, 478, 815 P.2d 269 (1991);
Brenner v. Port ofBellingham, 53 Wash. App. 182, 188, 765 P.2d 1333 (1989).
On appeal, William Marx notes that his testimony and the testimony of his
girlfriend conflicts with testimony of Debra and Corey Clawson concerning whether
Clawson served him with a summons, among other papers. Marx contends on appeal that
the trial court should have conducted an evidentiary hearing to determine the credibility
of the witnesses before ruling on whether he was properly served.
When a motion to set aside a default judgment is supported by affidavits asserting
lack of personal service and the plaintiff files controverting affidavits, a triable issue of
fact is presented. Roth v. Nash, 19 Wn.2d 731,732,144 P.2d 271 (1943); Woodruffv.
Spence, 76 Wash. App. 207, 210,883 P.2d 936 (1994). Under such circumstances, the
court, in its discretion, may direct that an issue raised by motion be heard on oral
testimony if that is necessary for ajust determination. Woodruffv. Spence, 76 Wash. App.
at 210; Swan v. Landgren, 6 Wn. App. 713,495 P.2d 1044 (1972).
We need not and do not answer whether the trial court abused its discretion when
failing to conduct an evidentiary hearing with oral testimony, because Marx never sought
an evidentiary hearing at the trial court. He contended below that he was the more
credible witness, but did not demand a trial with live testimony. We do not address
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assignments of error not raised below.
RAP 2.5 formalizes a fundamental principle of appellate review. The first
sentence of the rule reads:
(a) Errors Raised for First Time on Review. The appellate court
may refuse to review any claim of error which was not raised in the trial
court.
Good sense lies behind the requirement that arguments be first asserted at trial. The
prerequisite affords the trial court an opportunity to rule correctly on a matter before it
can be presented on appeal. State v. Strine, 176 Wash. 2d 742, 749, 293 P.3d 1177 (2013).
There is great potential for abuse when a party does not raise an issue below because a
party so situated could simply lie back, not allowing the trial court to avoid the potential
prejudice, gamble on the result, and then seek a new hearing on appeal. State v. Weber,
159 Wn.2d 252,271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,762,278
P.3d 653 (2012). The theory of preservation by timely objection also addresses several
other concerns. The rule serves the goal ofjudicial economy by enabling trial courts to
correct mistakes and thereby obviate the needless expense of appellate review, facilitates
appellate review by ensuring that a complete record of the issues will be available, and
prevents adversarial unfairness by ensuring that the prevailing party is not deprived of
victory by claimed errors that he had no opportunity to address. State v. Strine, 176
Wash. 2d at 749-50; State v. Scott, Ito Wn.2d 682,685-86, 757 P.2d 492 (1988).
By practice, trial courts resolve motions to vacate default judgments on affidavits
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without live testimony. For this reason, a party seeking more and wishing an evidentiary
hearing should ask the trial court for an oral hearing before raising error on appeal.
Leen v. Demopolis, 62 Wash. App. 473 (1991) controls. In Leen, this court affirmed
the trial court's denial of Chris Demopolis' motion to vacate a default judgment against
him for unpaid attorney fees owed to David Leen. In support of his motion to vacate,
Demopolis filed an affidavit stating he found a copy of the complaint, without a
summons, in his mailbox. Demopolis also filed another affidavit signed by two persons
who claimed to dine with Demopolis in a restaurant at the time Leen' s return of service
alleged he was served. Nevertheless, Demopolis never stated that he sat in a restaurant at
the alleged time of service at his home. On appeal, Demopolis argued that the lower
court must hear live testimony to properly assess the credibility of the conflicting
affidavits. Demopolis, however, made no request to present live testimony at the hearing
on his motion to vacate. We held that Demopolis waived his argument that the trial court
should have conducted an evidentiary hearing to determine witness credibility. We noted
that a litigant may not remain silent regarding a claimed error and later raise the issue on
appeal.
WoodrujJv. Spence, 76 Wash. App. 207 (1994) resulted in the opposite outcome.
Richard Spence filed a declaration that included the statement he was in Bellingham at
the time the affidavit of service showed service occurred on him at his Renton home.
Spence also provided the affidavit of his son, who declared he was at his father's
20
No. 32597-1-III
In re Custody ofK.R.H
residence on the same date that service allegedly occurred. According to the son, no
process server entered the property. Another individual declared he worked in the shop
adjoining Spence's residence on the date of purported service and that he saw no one out
of the ordinary coming to or going from the residence. We remanded the case to the trial
court for an evidentiary hearing to assess the credibility of the witnesses. In so ruling, we
distinguished Leen v. Demopolis on the ground that a telephone message confirmed
Leen's affidavit of service and Demopolis' evidence of lack of service was equivocal.
We choose to respect the teachings of Leen v. Demopolis rather than Woodruffv.
Spence. We could distinguish Woodruffand follow Leen on the basis that William
Marx's evidence is incomplete and wanting. But more fundamental reasons demand
conformity to Leen v. Demopolis.
The opinion in Woodruff v. Spence does not mention whether either party asked
for an evidentiary hearing before the trial court. The opinion does not mention whether
Richard Spence claimed error on appeal because of the lack of a factual trial. The
Woodruff court did not address the question whether a party waives a hearing with live
testimony by failing to demand one before the lower court.
Leen v. Demopolis applies a principle critical to the efficient functioning of the
court system. In addition to the rationales for RAP 2.5 listed above, the state's busy trial
courts deserve the opportunity to address a party's argument before an appellate court
reviews whether the court should have accepted an omitted contention. Trial courts know
21
No. 32597-I-II1
In re Custody ofK.R.H
the intimacies of a case better than reviewing courts and that knowledge affords the trial
courts a better occasion to address an argument in the first instance. William Marx
should have first granted the trial court an opportunity to exercise discretion as to whether
an evidentiary hearing would be helpful.
Issue 2: Did the trial court err when ruling that Debra Clawson consummated
service ofprocess on William Marx?
Answer 2: No.
Corey Clawson filed a return of service under oath that declared he served
William Marx with the summons, petition, proposed residential schedule, notice of
adequate cause hearing, and a response to petition form. An affidavit of service, regular
in form and substance, is presumptively correct. Lee v. w: Processing Co., 35 Wash. App.
at 469 (1983). The return, however, is subject to attack and may be discredited by
competent evidence. Lee v. w: Processing Co., 35 Wash. App. at 469.
This court reviews a trial court's decision on a motion to vacate an order of default
or default judgment for abuse of discretion. Morin v. Burris, 160 Wash. 2d 745, 753, 161
P.3d 956 (2007). Discretion is abused if it is exercised on untenable grounds or for
untenable reasons. Morin, 160 Wash. 2d at 753. A decision is based on untenable grounds
or made for untenable reasons if it rests on facts unsupported in the record or was reached
by applying the wrong legal standard. Mitchell v. Wash. State Inst. ofPub. Policy, 153
Wn. App. 803,821-22,225 P.3d 280 (2009). A party that moves to vacate a default
22
No. 32597-1-II1
In re Custody ofK.R.H.
judgment based on improper service has the burden of proving the same by clear and
convincing evidence. Leen v. Demopolis, 62 Wash. App. at 478 (1991).
William Marx and his girlfriend agree that Clawson appeared at Marx's home and
served papers. One must question why Corey Clawson would travel to Marx's home and
only deliver partial papers. Corey Clawson completed a declaration in which he listed a
summons, petition and other pleadings. One must question how Clawson knew of the
nomenclature for these pleadings without having them in his possession to serve.
William Marx and his girlfriend deny that Marx received a summons.
Nevertheless, they fail to disclose the identity ofthe pleadings served on them. Marx
omits any mention in his declaration of whether he read the papers and how he disposed
of the papers. Based on this record, the trial court did not abuse its discretion when
ruling that William Marx was properly served with the summons and petition.
Issue 3: Did the trial court err by refusing to strike hearsay testimony in Debra
Clawson's declaration?
Answer 3: We refuse to address the issue since any hearsay testimony did not
impact the outcome ofthe hearings below and does not influence the result ofthis appeal.
William Marx complains that Debra Clawson, in a declaration, testified that
someone called him the day after Katerina's birth to inform him of the birth. He notes
that Clawson did not testifY whether she overheard this conversation, and he objects to
the testimony as hearsay. We refuse to address this assignment of error because,
23
No. 32597-I-III
In re Custody ofK.R.H
assuming the testimony to be inadmissible, the trial court and the court commissioner did
not rely on the testimony when either denying the motion to vacate or the motion for a
major modification. Neither the superior court judge nor the court commissioner
mentioned the conversation in each's respective oral rulings. The order denying vacation
of the default decree and the order denying adequate cause for a major modification
incorporate no finding that the conversation occurred.
An error is harmless if the outcome of the proceeding would have been the same
even if the error had not occurred. State v. Jackson, 102 Wn.2d 689,695,689 P.2d 76
(1984). In determining whether an evidentiary error is harmless the court views the
evidence actually considered by the trier of fact. Yates v. Evatt, 500 U.S. 391, 404, III
S. Ct. 1884, 114 L. Ed. 2d 432 (1991). Since the lower court did not consider the
purported hearsay when rendering decisions, the testimony of Debra Clawson was
harmless.
William Marx may argue that the alleged hearsay testimony influenced both the
superior court judge and the court commissioner to find that he knew or should
reasonably have known that he was the father sometime during 2010. Other evidence
ably supports such a finding, however. Marx agrees he knew by early 2010 that Janelle
Hunter was pregnant. He had an opportunity to contact Hunter to ask ifhe was the father
and to pursue such knowledge immediately after the birth with a blood test. Ifhe did not
reasonably know by August 2010, he should have known by January 20 II. Debra
24
No. 32597-1-111
In re Custody ofK.R.H.
Clawson served him with legal pleadings, in which Clawson named him as the "possible"
father. Although Clawson employed the word "possible," Clawson named no other
possible fathers. Marx should have pursued his parenthood then, ifnot earlier.
Inadmissible evidence is harmless even in a criminal case with a burden of proof of
beyond a reasonable doubt, if overwhelming untainted evidence supports the ruling.
State v. Anderson, 171 Wn.2d 764,770,254 P.3d 815 (2011).
Issue 4: Did the trial court err when refusing to vacate the default decree of
custody?
Answer 4: No.
William Marx maintains that the trial court erroneously ruled that, even if he had
not been served with process, the passage of three years between entry of the default and
Marx's motion to vacate negated any possibility of vacation. He asks us to vacate the
default decree of nonparental custody because of this error. As noted earlier, we agree
with Marx that, if Debra Clawson did not complete service on him, the trial court needed
to vacate the default order regardless ofthe length of time that passed. A party may
move to vacate a void judgment at any time, and lack of service renders a judgment void.
In re Marriage ofMarkowski, 50 Wash. App. at 635-36 (1988); In re Marriage ofLeslie,
112 Wash. 2d at 618-19 (1989). We disagree, however, with the premise of Marx's
argument. The trial court correctly ruled that Debra Clawson effectively served Marx.
William Marx next argues that the default decree was not binding on him because
25
No. 32597-I-III
In re Custody ofK.R.H.
he had yet been declared to be the father of Katerina. Because the decree did not
purportedly bind him, Marx seeks to vacate the default order. If we vacated the order, no
order would currently address the custody of Katerina.
CR 60 lists grounds on which a default order or judgment may be vacated. The
rule reads, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud; etc. On motion and upon such terms as are
just, the court may relieve a party or the party's legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order;
(3) Newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(5) The judgment is void;
(7) If the defendant was served by publication, relief may be granted
as prescribed in RCW 4.28.200;
(9) Unavoidable casualty or misfortune preventing the party from
prosecuting or defending;
... ; or
(11) Any other reason justifYing relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons
(l), (2) or (3) not more than 1 year after the judgment, order, or proceeding
was entered or taken. . . .
We list only the grounds that might possibly apply to William Marx's motion.
Unfortunately, Marx does not identifY that ground, on which he relies. We will assume
26
No. 32597-1-111
In re Custody ofK.R.H.
he depends on the void judgment subsection, CR 60(b)(5), which posits no deadline for
filing.
William Marx raises an interesting argument. Nevertheless, he forwards no law
that supports the contention that a decree of custody is not binding on a father before a
court adjudges the father to be the parent. RAP 10.3(a)(6) directs each party to supply, in
his brief, "argument in support of the issues presented for review, together with citations
to legal authority and references to relevant parts of the record." We do not consider
conclusory arguments that are unsupported by citation to authority. Joy v. Dep't ofLabor
& Indus., 170 Wash. App. 614, 629, 285 P.3d 187 (2012), review denied, 176 Wash. 2d 1021,
297 P.3d 708 (2013). Passing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration. West v. Thurston County, 168 Wash. App. 162,
187,275 P.3d 1200 (2012); Holland v. City ofTacoma, 90 Wash. App. 533, 538,954 P.2d
290 (1998). Therefore, we decline to address whether the default decree bound William
Marx without an earlier parentage order.
We note a number of irregularities in the procedure leading to the entry of the
nonparental custody order. Debra Clawson failed to sign the nonparental custody petition
under oath. The trial court failed to enter a residential placement schedule. We do not
address these abnormalities, in part, because we doubt that they prejudiced William
Marx. We also do not address the irregularities because Marx cites no authority that
supports a holding that the default decree is void because of the defect. Therefore, we
27
No. 32597-1-111
In re Custody ofK.R.H.
refuse to vacate the default decree of custody.
Issue 5: Did the trial court commit error when refusing to grant William Marx's
motionfor a major modification in the placement ofKaterina?
Answer 5: Yes. The trial court did not apply the correct standard.
William Marx contends he need not show adequate cause for a major modification
of Katerina's placement, because he was not found to be an unfit parent at the time of the
nonparental custody decree. This last argument relies on Marx's constitutional rights as
the biological father of Katerina. Based on this court's precedents, we agree with Marx's
final argument. We hold that the trial court erred in failing to grant William Marx's
petition for a major modification without the trial court finding that he was an unfit father
or that placement of Katerina with Marx would result in actual detriment to the child's
growth and development. We further hold that the appropriate remedy for the trial court
error is not the vacation of the default decree of custody but a remand to the trial court to
conduct an evidentiary hearing in light of the correct standard to be applied to Marx's
motion for a major modification.
The trial court's demand that William Marx show adequate cause, under RCW
26.09.260, for a major modification in Katerina's placement prompts a preliminary
discussion of constitutional rights. Parents have a fundamental right to autonomy in child
rearing decisions. In re Custody ofSmith, 137 Wash. 2d 1, 13,969 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
28
No. 32597-1-III
In re Custody ofK.R.H
opinion). The United States Supreme Court has long recognized a constitutionally
protected interest of parents to raise their children without state interference. Wisconsin
v. Yoder, 406 U.S. 205, 235-36, 92 S. Ct. 1526,32 L. Ed. 2d 15 (1972); Pierce v. Soc'y of
Sisters, 268 U.S. 510,534,45 S. Ct. 571,69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262
U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The liberty interest of parents may
be the oldest of the fundamental liberty interests recognized by the Supreme Court.
Troxel v. Granville, 530 U.S. at 65 (2000). Freedom of personal choice in matters of
family life is a fundamental liberty interest protected by the due process clause of the
Fourteenth Amendment, the equal protection clause of the Fourteenth Amendment, and
the Ninth Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S.
745, 753, 102 S. Ct. 1388,71 L. Ed. 2d 599 (1982); Stanley v.Illinois, 405 U.S. 645, 651,
92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).
The rights to conceive and to raise one's children are deemed '" essential, '"
"'basic civil rights of man.' " Stanley v. Illinois, 405 U.S. at 651 (1972) (quoting Meyer
v. Nebraska, 262 U.S. at 399 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct.
1110,86 L. Ed. 1655 (1942». The custody, care, and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for obligations the
State can neither supply nor hinder. Stanley v. Illinois, 405 U.S. at 651.
Since the custody of a child is a fundamental, constitutional right, state
interference is justified only if the State can show that it has a compelling interest and
29
No. 32597-1-III
In re Custody ofK.R.H.
such interference is narrowly drawn to meet only the compelling state interest involved.
In re Custody ofSmith, 137 Wash. 2d at 15 (1998); In re Welfare ofSumey, 94 Wash. 2d 757,
762, 621 P .2d 108 (1980). This standard is known as the strict scrutiny test. In re
Parentage ofCA.MA., 154 Wn.2d 52,57, 109 P.3d 405 (2005). Only under
"extraordinary circumstances" does there exist a compelling state interest that justifies
interference with parental rights. In re Custody ofShields, 157 Wash. 2d 126, 145, 136 P.3d
117 (2006) (quoting In re Marriage ofAllen, 28 Wash. App. 637, 649, 626 P.2d 16 (1981».
The State lacks authority to redistribute infants to provide each child with the "best
family." Custody ofSmith, 137 Wash. 2d at 20. The State also lacks the power to make
significant decisions concerning the custody of children merely because it could make a
"better decision." Custody ofSmith, 137 Wash. 2d at 20.
Arising from the clash between state authority and a parent's constitutional right is
a standard that controls this appeal and all nonparental custody petition suits. The
superior court may ultimately issue a custody order granting nonparental placement only
if the court finds that the parent is unfit or placement with the parent would result in
actual detriment to the child's growth and development. In re Custody ofB.MH, 179
Wash. 2d 224, 235,315 P.3d 470 (2013); In re Custody ofE.A.T. W, 168 Wn.2d 335,344­
45,227 P.3d 1284 (2010); Custody ofShields, 157 Wash. 2d at 142-43. This standard is
necessary in order to adhere to the constitutional mandate that deference be accorded
30
No. 32597-1-111
In re Custody 0/ K.R.H
parents in child custody disputes with nonparents. Custody 0/ E.A. T. W, 168 Wash. 2d at
344; Custody o/Shields, 157 Wash. 2d at 142.
With this constitutional background, we address Washington's nonparental
custody petition act, under which Debra Clawson initiated this action. In 1987, the
Washington Legislature enacted the Parenting Act of 1987, chs. 26.09, 26.10 RCW,
which redesigned chapter 26.09 RCW, the parenting chapter for marital dissolution
actions. LAWS OF 1987, ch. 460. In tum, the legislature reenacted and continued the law
relating to third party actions involving custody of minor children by adopting chapter
26.10 RCW in order to distinguish third party actions from parental disputes concerning
placement of children. RCW 26.10.010.
Under RCW 26.10.030(1), a third party may file a nonparental custody petition "if
the child is not in the physical custody of one of its parents or if the petitioner alleges that
neither parent is a suitable custodian." One of the key provisions of the nonparental
custody act is RCW 26.10.100. This section reads:
The court shall determine custody in accordance with the best
interests of the child.
Thus, the nonparental custody act incorporates the best interest standard declared
unconstitutional in other settings.
In Custody o/Shields, 157 Wash. 2d 126 (2006), the Washington Supreme Court
withheld a declaration that RCW 26.10.100 is unconstitutional and instead inserted
31
No. 32597-1-III
In re Custody ofKR.H
additional requirements into the nonparental custody petition setting. The Court
recognized that the best interest standard fails to afford the natural parent required
constitutional protections. But the statute is constitutional when adding the requirement
that the parent be unfit or placement with the parent causes actual detriment to the child's
growth and development. The Supreme Court reversed the trial court's grant of the child
to a stepparent because, although the trial court referred to an actual detriment standard,
the record reflected that the trial court applied a best interest standard. The requisite
showing by the nonparent is substantial. Custody ofShields, 157 Wash. 2d at 145.
The phrase "parental unfitness" employs vacuous words. Some Washington cases
introduce other vocabulary to assist lower courts in resolving custody disputes, although
the alternative terminology still affords minimal particularity in determining unfitness. In
the context of a termination proceeding when the State must also show current unfitness,
the State must prove that the parent's parenting deficiencies prevent the parent from
providing the child with "basic nurture, health, or safety" by clear, cogent, and
convincing evidence. RCW 13.34.020; In re Welfare ofA.B., 181 Wash. App. 45, 58-59,
323 P.3d 1062 (2014). The Evergreen State Supreme Court has also defined parental
unfitness as being unable to meet a child's basic needs, In re Custody ofB.MH, 179
Wash. 2d at 236 (2013), or lacking the necessary capacity for giving parental care. In re
Welfare ofAschauer, 93 Wash. 2d 689, 694,611 P.2d 1245 (1980). Unfit parents include
parents causing nonaccidental injury, neglect, death, sexual abuse and cruelty to children
32
No. 32597-1-II1
In re Custody ofK.R.H
or parents who deprive a child of his or her right to conditions of minimal nurture, health,
and safety. RCW 26.44.010; In re Custody ofB.MB., 179 Wash. 2d at 236.
The expression "actual detriment to a child's growth and development" also lacks
concreteness, but the Washington courts supply no alternative terminology. The state
Supreme Court has observed that whether placement with a parent will result in actual
detriment to a child's growth and development is a highly fact-specific inquiry, and
precisely when actual detriment outweighs parental rights must be determined on a case-
by-case basis. Custody ofShields, 157 Wash. 2d at 143 (2006). 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.'" Custody ofShields, 157 Wash. 2d at 145 (quoting In re
Marriage ofAllen, 28 Wash. App. at 649). Examples include (I) when a deaf child needed
a caregiver who could effectively communicate with the child and the father was unable
to do so, (2) when a suicidal child required extensive therapy and stability at a level the
parents could not provide, and (3) when a child who had been physically and sexually
abused required extensive therapy and stability at a level the parent could not provide. In
re Custody ofB.MH, 179 Wash. 2d at 236.
Just as the marital dissolution chapter offers a divorced parent an opportunity to
modifY a custody or residential placement order, the chapter addressing nonparental
33
No. 32597-1-111
In re Custody ofK.R.H.
custody actions affords an opportunity for a parent to seek a modification of the custody
decree. RCW 26.10.190(1) declares:
The court shall hear and review petitions for modifications of a
parenting plan, custody order, visitation order, or other order governing the
residence of a child, and conduct any proceedings concerning a relocation
of the residence where the child resides a majority of the time, pursuant to
chapter 26.09 RCW.
The controlling statute, RCW 26.09.260, for modifying a custody decree in a marriage
dissolution action reads, in part:
(1) ... the court shall not modify a prior custody decree or a
parenting plan unless it finds, upon the basis of facts that have arisen since
the prior decree or plan or that were unknown to the court at the time of the
prior decree or plan, that a substantial change has occurred in the
circumstances of the child or the nonmoving party and that the modification
is in the best interest of the child and is necessary to serve the best interests
of the child ....
(2) In applying these standards, the court shall retain the residential
schedule established by the decree or parenting plan unless:
(a) The parents agree to the modification;
(b) The child has been integrated into the family of the petitioner
with the consent of the other parent in substantial deviation from the
parenting plan; [or]
(c) The child's present environment is detrimental to the child's
physical, mental, or emotional health and the harm likely to be caused by a
change of environment is outweighed by the advantage of a change to the
child.
When addressing William Marx's motion to modify the nonparental custody decree, the
trial court employed the standard embedded in RCW 26.09.260. We conclude use of this
standard to be error.
34
No. 32597-1-111
In re Custody ofK.R.H
Even more than a child custody decree in a marriage dissolution action, a decree
awarding custody to a nonparent under chapter 26.10 RCW is never permanent.
Nonparental custody is inherently impermanent:
A nonparent custody order confers only a temporary and uncertain
right to custody of the child for the present time, because the child has no
suitable legal parent. When and if a legal parent becomes fit to care for the
child, the nonparent has no right to continue a relationship with the child.
In re Parentage ofJ.A.B., 146 Wash. App. 417, 426, 191 P.3d 71 (2008). More importantly
for this appeal, since the nonparental custody proceeding provided by chapter 26.10
RCW constitutionally divests a parent of rights only if the trial court finds parental
unfitness or actual detriment, a parent against whom the constitutional standard is not
found to have been proved has a liberty interest that remains undiminished. In re
Custody ofTL., 165 Wash. App. 268 (2011).
In T.L., Tia Link's six-year-old son had lived with his grandmother for most of his
life because Link had not been stable or responsible enough to meet T.L. 's needs. The
grandmother petitioned for nonparental custody ofT.L., which Link resisted for a year.
Eventually, however, Link filed a joinder in her mother's petition. The trial court entered
agreed findings, conclusions, and orders. Link claimed she had relinquished control over
T.L. only temporarily, with the understanding that she could have her son back when she
was stable. The grandmother denied any understanding that her custody ofT.L. was
temporary. When Tia Link filed a petition to modify the custody and residential schedule
35
No. 32597-I-III
In re Custody 0/K.R.H
based on her professed success in achieving stability, a court commissioner concluded,
and the superior court affirmed, that Link had not demonstrated a statutorily required
change in T.L.'s or his grandmother's circumstances.
In T.L., we held that the modification standards and process provided by RCW
26.09.260(1) interfered with Tia Link's right to rear her son and failed strict scrutiny
analysis when T.L.'s grandmother had never demonstrated that Link was an unfit parent
or that placing T.L. with her would result in actual detriment to his growth and
development. We recognized that the requirement to prove a substantial change in the
child's or nonmoving parent's circumstances reflects a legislative desire to minimize
custody litigation between divorced parents, but held that, in a case such as this, it is
constitutional error to require a parent seeking restored custody of her or his child to
satisfy the requirements ofRCW 26.09.260. We recently followed the teachings of T.L.
in In re Custody o/Z.c., No. 32431-I-III (Wash. Ct. App. Dec. 15,2015).
The trial court did not enter the 2011 custody decree favoring Debra Clawson and
findings supporting the decree after a contested hearing during which William Marx
presented evidence. Marx may argue that the lack of a contested hearing alone requires a
major modification to the decree. We question the validity of the argument, since he
enjoyed the opportunity in 2011 to litigate his parental rights. We vacate the trial court's
2014 order denying the major modification on other grounds.
36
No. 32597-I-III
In re Custody ofK.R.H.
In the February 3, 20 II, findings of fact supporting the nonparental custody
decree, the trial court entered no finding that William Marx was an unfit parent or that
placement with him would constitute actual detriment to the child's development. The
trial court entered a finding that William Marx is not a "suitable" parent. We recognize
some similarity in the meaning of the words "unfit" and "unsuitable." Nevertheless, we
do not equate unsuitability with unfitness. RCW 26.10.032 demands that, in order to
establish adequate cause to proceed with a nonparental custody action, the petitioner must
(I) show the child is not in the physical custody of a parent or the parents are unsuitable
custodians and (2) allege specific facts that, if proven true, establish the parent is unfit or
the child would suffer actual detriment if placed with the parent. The statutory scheme
thus distinguishes between an unsuitable parent and an unfit parent. The term
"unsuitable" may extend to a deficiency in skills; whereas the word "unfit" could extend
to a total lack of qualifications. Assuming unsuitability equates to unfitness, Debra
Clawson does not show this court that she provided the superior court, in 2011, with any,
let alone clear and convincing, evidence to substantiate a finding that Marx was an
unsuitable father.
The trial court, in the 2011 decree, also found that Katerina was removed from
parental care due to findings of neglect and/or abuse by CPS, and that both parents failed
to meet minimum standards of care for Katerina and failed to complete services. These
findings could not apply to William Marx, however. He never provided the care for
37
No. 32597-1-111
In re Custody ofK.R.H
Katerina. CPS never entered any findings with regard to Marx. The record does not
establish that any court or government agency ordered Marx to submit to services.
The findings of fact and conclusions of law signed by the trial court in 2011 also
included a finding that William Marx's visitation should be limited because of his alleged
conviction of a child assault of third degree. Nevertheless, Debra Clawson does not
claim that she provided the superior court in 2011 with any evidence of a criminal
conviction. RCW 26.1 0.135 provides: "Before granting any order regarding the custody
of a child under this chapter, the court shall consult the judicial information system, if
available, to determine the existence of any information and proceedings that are relevant
to the placement ofthe child." The record does not establish that the trial court
performed the requisite consultation in 2011.
CONCLUSION
We remand to the trial court for further proceedings. Unless Debra Clawson can
show during an evidentiary hearing that William Marx is an unfit father or that placement
of Katerina with Marx would result in actual detriment to the child's growth and
development, Marx's petition for a major modification in the residential placement of
Katerina should be granted.
38
No. 32597-1-III
In re Custody ofK.R.H
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.
3
Fearing.~ , J
WE CONCUR:
~JJ
Korsmo,J'7
j
39