In re the Guardianship of: P.M. ( 2016 )

FILED
July 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 Guardianship of )
) No. 33532-1-111
P.M.; J.S.; H.S.; C.W.F.S. ) (consolidated with 33533-0-111,
) 33534-8-111, 33535-6-111)
)
)
) UNPUBLISHED OPINION
)
KORSMO, J. -A.M. stipulated to a guardianship giving custody of her four minor
children to her adult son, J .K., and his wife. She now appeals from the guardianship
order, challenging the Guardians' discretion concerning her contact with the children.
We reject her arguments and affirm.
FACTS
A.M. is the mother of four minor children, P.M., J.S., H.S., and C.W.F.S.
Sometime in late 2013, she was arrested and charged with violating federal criminal
statutes. With no fathers in the picture, the Department of Social and Health Services
(DSHS) filed dependency petitions for all four children and placed them in relative care
with J.K. and his wife, L.K. J.K., who grew up in an adoptive family, is the adult son of
A.M. Roughly one year later, A.M. was convicted on federal charges and agreed to
transition the dependencies into guardianships.
!
I
No. 33532-1-III (consol w/ 33533-0-III, 33534-8-III, 33535-6-III)
In re P.M, JS., H.S., C. WF.S.
I
At an initial hearing, A.M. stipulated to the facts necessary to establish
l
i
guardianships, but requested a greater degree of contact than initially recommended by I
!
DSHS. She asked to be allowed monthly contact with her children, to receive quarterly I
updates with pictures from the Guardians, and to have the children visit her in jail when
I
f
she returned to Spokane for sentencing. The trial court heard testimony from the
children's counselor, the dependency case worker, A.M., J.K., and L.K.
I
f
After weighing the evidence, a superior court commissioner entered guardianship t
I
t
»
orders for all four children. The orders specified that the Guardians will send A.M. two i
l
letters per year, which may include pictures at their discretion. A.M. is allowed to send !
l
quarterly letters to each child. The Guardians are also required to facilitate letter writing
by the children to A.M. Finally, the commissioner gave the Guardians discretion over
any further contact between the children and A.M., including possible phone calls and the
June visit.
A.M. appealed the order, challenging the discretion given to the guardians. A.M.
also filed an emergency motion seeking to visit the children before her federal
sentencing. This court remanded the case for a hearing to determine whether the jail visit
would happen. However, at the new hearing, A.M. withdrew her request.
2
No. 33532-1-III (consol w/ 33533-0-III, 33534-8-III, 33535-6-III)
In re P.M, JS., HS., C. WF.S.
ANALYSIS
This court will review a guardianship order for an abuse of discretion. 1 Discretion
is abused when it is exercised on untenable grounds or for untenable reasons. In re
Marriage ofLittlefield, 133 Wash. 2d 39, 46-47, 940 P.2d 1362 (1997).
A.M. challenges the discretion given to the Guardians over the extent of contact
with her children. 2 She contends that this violates RCW 13.36.050(l)(d), which requires
the court to "specify an appropriate frequency and type of contact" between the parent
and the child. Relying on this court's decision in R. V, she argues that by giving
discretion to the Guardians, the trial court unlawfully delegated its statutory obligations.
See In re Dependency of R. V, 113 Wash. App. 716, 54 P.3d 716 (2002).
In R. V, the trial court determined that the guardian would regulate visits between
the mother and her son. Id. at 719. The statute mandated that the guardianship order
"specify an appropriate frequency of visitation between the parent and the child." Id. at
1
The guardianship statute is relatively new and no court has previously stated the
standard of review for a guardianship order. However, similar types of orders, such as
dependency orders, are ordinarily reviewed for an abuse of discretion, and we believe
that standard is appropriate here. See In re Dependency of JR. U-S., 126 Wash. App. 786,
792 n.1, 110 P.3d 773 (2005); In re Dependency of R.L., 123 Wash. App. 215, 220, 98 P.3d
75 (2004).
2 A.M.'s opening brief predates the ruling on the emergency motion, and assigns
error to the portion of the order concerning the jail visit. The parties now agree that this
issue is moot.
3
No. 33532-1-III (consol w/ 33533-0-III, 33534-8-III, 33535-6-III)
In re P.M, JS., HS., C. WF.S.
720; RCW 13.34.232(l)(d). This court reversed the decision because the order failed to
do so. R. V, 113 Wash. App. at 720-721, 723.
Even though R. V dealt with a guardianship order established under the older
statutory regime, 3 the same rationale applies here. Here, the guardianship order must
"specify an appropriate frequency and type of contact" between A.M. and her children.
RCW 13.36.0SO(l)(d). However, unlike the order in R. V, these guardianship orders
adhere to the statutory requirements.
Here, the commissioner held a substantial hearing to learn about the children and
their specific situations. She carefully considered this evidence before determining an
appropriate scope and frequency of contact between A.M. and her children. 4 The
guardianship orders contain these specifications and comply with the statutory
requirements.
3
In 2010, the legislature revised the laws governing guardianships and established
new procedures to give full custody of dependent children to permanent guardians and
dismiss the underlying dependency. LA ws OF 2010, ch. 272. Prior to that, guardianships
were established within continuing dependencies and DSHS retained legal custody of the
child. See former RCW 13 .34.230 (2009), .231 (2000), repealed by LA ws OF 2010, ch.
272, § 16.
4
As an alternative argument, A.M. contends that there is not substantial evidence
preponderating in favor of the particular terms ordered. She treats this argument as
though she is challenging findings of fact underlying a judgment. Certain facts must be
established by a preponderance of the evidence in order to create a guardianship. See
RCW 13.36.040(2). However, A.M. stipulated to those facts. Rather, the conditions
imposed in the guardianship are left to the discretion of the court. Since those conditions
are well-founded in fact, we cannot find an abuse of that discretion.
4
No. 33532-1-III (consol w/ 33533-0-III, 33534-8-III, 33535-6-III)
In re P.M, JS., H.S., C. WF.S.
Then, as a boon to A.M., the trial court gave the Guardians discretion to permit
more substantial contact with the children. However, there is no legal prohibition against
giving Guardians discretion concerning the children in their care. Simply by their nature,
guardianships must give caregivers substantial authority and discretion concerning the
well-being of the children involved. See RCW 13.36.050(1)-(2).
Accordingly, since the guardianship orders comply with all of the statutory
requirements and are well-grounded in fact, the guardianship orders are very tenable.
There was no abuse of the trial court's discretion.
Affirmed.
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.
WE CONCUR:
Lawrence-Berrey, J.
j
5