Buddy L. Bartunek, V Jessica Bartunek ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
December 21, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Custody of: No. 55069-5-II
AMAYAH GRACE BARTUNEK,
BUDDY LEE BARTUNEK,
Appellant,
v.
JESSICA LEE BARTUNEK and ADAM UNPUBLISHED OPINION
LOUIS STATEN,
Respondents.
LEE, C.J. — B.B.1 appeals the trial court’s order granting his petition for nonparental
custody of his granddaughter, A.B. B.B. argues that the trial court erred by failing to find that
A.B.’s biological father, Adam Staten, was unfit. Also B.B. argues that the trial court erred by
failing to find that Staten had abandoned A.B. We hold that the trial court did not abuse its
discretion in the nonparental custody order and affirm.
FACTS
A.B. is the child of J.B. and Staten. Staten had regular communication and contact with
A.B. the first year and a half of her life. Staten also continued to contact J.B. by phone and
1
This opinion refers to the parties that share the same last name with A.B. by their initials in order
to protect the identity of the child.
No. 55069-5-II
messaging. Staten last saw A.B. when she was one and a half years old. Staten stayed out of
A.B.’s life to respect J.B.’s wishes.
J.B. has a history of drug addiction. In February 2019, J.B. was hospitalized in the intensive
care unit following a car accident. J.B.’s injuries resulted in some permanent disabilities affecting
her vision, memory, and balance. And J.B. had various housing issues following her release from
the hospital.
B.B. took care of A.B. while J.B. was in the hospital following her car accident. After J.B.
was discharged, she began using methadone and disappearing for periods of time. Eventually,
B.B. removed A.B. from J.B.’s care.
In June 2019, B.B. filed a petition for nonparental custody. B.B., J.B., and Staten testified
to the above facts at trial.
The trial court entered written findings of fact and conclusions of law. The trial court found
that neither J.B. nor Staten was a suitable custodian and that “[b]oth parents are currently unfit,
or, even if they may be fit, the children will suffer actual detriment (harm) to their growth and
development if they lived with either parent.” Clerk’s Papers (CP) at 104 (bolded in original).
Specifically, the trial court found:
Respondent [J.B.] is unfit to parent due to substance abuse, medical condition and
lifestyle. She additionally substantially neglected the child.
Respondent Adam Louis Staten is not a suitable custodial parent to the child at this
time due to no contact with the child, and maybe traumatic and not in the best
interest of the child.
CP at 104-05. The trial court found that B.B. should be A.B.’s primary custodian.
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No. 55069-5-II
The trial court entered a final nonparental custody order which included visitation for both
J.B. and Staten. In the residential schedule, the trial court found that Staten was not required to
have residential time limited due to abandonment, neglect, child abuse, domestic violence, assault,
or prior sex offenses. The trial court also entered child support orders for J.B. and Staten.
B.B. appeals.
ANALYSIS
A. LEGAL PRINCIPLES
We review a trial court’s nonparental custody determination for an abuse of discretion. In
re Custody of L.M.S., 187 Wn.2d 567, 574, 387 P.3d 707 (2017). “A trial court abuses its discretion
if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.” In
re Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005). A decision is manifestly
unreasonable if the decision is outside the range of acceptable choices based on the facts and
applicable legal standard. Id.A nonparent may petition for custody of a child. In re Custody of Shields, 157 Wn.2d 126,
137, 136 P.3d 117 (2006). To gain nonparental custody, the petitioner must establish that the
parents are either “‘unfit’” or that placing the child with a parent would lead to “‘actual detriment
to the child’s growth and development.’” L.M.S., 187 Wn.2d at 576 (quoting In re Custody of
E.A.T.W, 168 Wn.2d 335, 338, 227 P.3d 1284 (2010)). The burden falls to the nonparent seeking
custody to show unfitness or actual detriment. Id.3
No. 55069-5-II
B. UNFITNESS
B.B. argues that the trial court erred by failing to find that Staten was unfit. We disagree.
“A parent is unfit if he or she cannot meet a child’s basic needs.” Id. Unfitness necessarily
incorporates the standards for interference in the parent child relationship codified in RCW
26.44.010. See Id. Under RCW 26.44.010, interference in the parent child relationship is justified
in “instances of nonaccidental injury, neglect, death, sexual abuse and cruelty . . . and in the
instance where a child is deprived of his or her right to conditions of minimal nurture, health, and
safety.”
Here, the trial court found that J.B.’s substance abuse, medical condition, and lifestyle
caused her to be an unfit parent. This finding was based on J.B.’s current circumstances, not past
conditions. In contrast, there was no evidence that Staten was currently unfit to parent A.B. The
trial court found that Staten was not currently a suitable custodian for A.B. because he had not had
contact with A.B. The failure to have an established relationship with a child does not necessarily
render a parent unable to meet a child’s basic needs. Because the trial court’s finding was based
on evaluating the current parenting abilities of Staten, the trial court did not abuse its discretion by
failing to find that Staten was unfit.
To the extent that B.B. is arguing that the trial court failed to apply the law on unfitness
equally to J.B. and Staten, this argument fails. The trial court appears to have applied the law
equally to both parties. The trial court reached different result for each parent because their current
circumstances were different. Accordingly, the trial court applied the law equally to both J.B. and
Staten.
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No. 55069-5-II
C. ABANDONMENT
B.B. also argues that the trial court erred by failing to find that Staten abandoned A.B. We
disagree.
A finding of past abandonment is not relevant to a determination in a nonparental custody
petition. To gain nonparental custody, the petitioner must establish that the parents are either
“‘unfit’” or that placing the child with a parent would lead to “‘actual detriment to a child’s growth
and development.’” L.M.S., 187 Wn.2d at 576 (quoting E.A.T.W., 168 Wn.2d at 338).
Here, even if Staten had previously abandoned the child, Staten responded to the petition.
The trial court acted within its discretion when it determined that Staten’s past actions were not
required to limit Staten’s residential time. And to resolve the nonparental custody petition, the
trial court was only required to make findings on current unfitness or actual detriment, not make
findings on whether Staten’s past actions were abandonment. Accordingly, the trial court did not
abuse its discretion in failing to find that Staten abandoned A.B.2
2
B.B. cites to various statutes and regulations that he argues show that Staten abandoned A.B.
However, none of the authority cited by B.B. establishes that a finding of abandonment is relevant
or necessary to a non-parental custody petition. See RCW 13.34.030 (defining abandonment for
the purposes of dependency and termination); RCW 26.09.191(2)(a) (limiting a parent’s residential
time in a parenting plan due to willful abandonment); former WAC 388-15-011 (2002) recodified
as WAC XXX-XX-XXXX (Wash. St. Reg. 18-14-078) (defining child abandonment for the purposes
of child protective services). Additionally, it does not appear that RCW 26.05.010 exists.
Accordingly, none of the authority cited by B.B. should change this court’s opinion on whether
the trial court abused its discretion by failing to find that Staten abandoned A.B.
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No. 55069-5-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Maxa, J.
Glasgow, J.
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