In re Custody of L.M.S.

This opinion was filed for record ,
at 8'.ooCUy\ onJO-o n /185 Wn.2d 1033, 377
P.3d 742 (2016).
II. ISSUE
Did the grandparents present facts that, if proved true, would establish that
Fuga is either unfit or that placement with Fuga would cause actual detriment to
L.M.S.'s growth and development?
III. ANALYSIS
We have not definitively articulated what standard of review applies to
consideration of a trial court's adequate cause determination on a nonparental
custody petition. See In re Custody of B.MH, 179 Wn.2d 224, 239 n.1, 315 P.3d
470 (2013) ("we need not answer today whether a more deferential standard of
review is appropriate for our review of a trial court's adequate cause determination
on a nonparental custody petition"). Although the Court of Appeals in B.MH
applied a de novo standard, which no party appealed, we typically apply a more
deferential standard of review to adequate cause determinations in similar contexts.
I d.; see, e.g., In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d 664 (2003);
see also In reMarriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993)
("[T]rial courts are given broad discretion in matters dealing with the welfare of
children.").
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In re the Custody ofL.MS., No. 92897-5
Today, we articulate that we review a trial court's adequate cause
determination on a nonparental custody petition for an abuse of discretion, like we
do in other custody determinations. "A trial court abuses its discretion if its decision
is manifestly unreasonable or based on untenable grounds or untenable reasons." In
reMarriage ofLittlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
The grandparents failed to demonstrate adequate cause
A person other than a parent may petition for custody of a child "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." RCW 26.10.030(1). In 2003, the legislature
amended the nonparental custody statute to require a threshold determination of
"adequate cause" prior to a hearing on a third party nonparental custody petition:
(1) A party seeking a custody order shall submit, along with his or her
motion, an affidavit declaring that the child is not in the physical
custody of one of its parents or that neither parent is a suitable custodian
and setting forth facts supporting the requested order. The party seeking
custody shall give notice, along with a copy of the affidavit, to other
parties to the proceedings, who may file opposing affidavits.
(2) The court shall deny the motion unless it finds that adequate
cause for hearing the motion is established by the affidavits, in which
case it shall set a date for hearing on an order to show cause why the
requested order should not be granted.
RCW 26.10.032.
When the grandparents filed their nonparental custody petition, L.M.S. was
not in the custody of either Fuga or Siufanua, thus satisfYing the requirements in
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In re the Custody ofL.MS., No. 92897-5
RCW 26.10.030(1). The only issue is whether the trial court abused its discretion
when it concluded the grandparents failed to establish adequate cause under RCW
26.1 0.032(2).
Adequate cause is a high burden. Courts have "long recognized that a parent's
interests in the nurture, upbringing, companionship, care, and custody of children
are generally protected by the Due Process Clause of the Fourteenth Amendment."
Troxel v. Granville, 530 U.S. 57, 77, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)
(Souter, J., concurring). "[O]nly under 'extraordinary circumstances' does there
exist a compelling state interest that justifies interference with ... parental rights."
B.MH, 179 Wn.2d at 235 (internal quotation marks omitted) (quoting In re Custody
ofShields, 157 Wn.2d 126, 145, 136 P .3d 117 (2006)). "[C]onstitutionally protected
parental rights may not be infringed merely because of a finding that someone could
do a better parenting job." In re Custody ofE.A.T. W., 168 Wn.2d 335, 346-47, 227
P.3d 1284 (2010). A mere showing that nonparental custody is in the best interests
of the child is insufficient to establish adequate cause. In re Custody ofS.C.D.-L.,
170 Wn.2d 513, 516-17, 243 P.3d 918 (2010). Likewise, a nonparent petitioner
cannot establish adequate cause by presenting facts showing that the child is not in
the parent's custody. E.A.T. W., 168 Wn.2d at 345. Instead, "the requisite showing
[of adequate cause] by the nonparent is substantial and a nonparent will be able to
meet this substantial standard in only 'extraordinary circumstances."' B.MH., 179
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In re the Custody ofL.MS., No. 92897-5
Wn.2d at 236 (internal quotation marks omitted) (quoting Shields, 157 Wn.2d at
145).
To demonstrate adequate cause, the nonparent petitioner must allege specific
facts that, if proved true, would establish a prima facie case "that the parent is unfit
or that placing the child with the parent would result in actual detriment to the child's
growth and development." E.A. T. W., 168 Wn.2d at 338.
A parent is unfit if he or she cannot meet a child's basic needs. B.MH, 179
Wn.2d at 236; see also RCW 26.44.010 (the state may intervene into the parent-
child relationship in "instances ofnonaccidental injury, neglect, death, sexual abuse
and cruelty to children by their parents . . . and in the instance where a child is
deprived of his or her right to conditions of minimal nurture, health, and safety").
"Whether placement with a parent will result in actual detriment to a child's growth
and development is a highly fact-specific inquiry, and '[p]recise\y what might
[constitute actual detriment to] outweigh parental rights must be determined on a
case-by-case basis."' B.MH., 179 Wn.2d at 236 (alterations in original) (internal
quotation marks omitted) (quoting Shields, 157 Wn.2d at 143).
1. Granting Fuga custody of L.MS. would not cause actual detriment to
her growth and development
The grandparents claim that due to Fuga's absence during L.M.S. 's childhood,
he is essentially a stranger to her. They argue that placing L.M.S. in Fuga's custody
would therefore cause actual detriment to her growth and development because it
8
In re the Custody ofL.MS., No. 92897-5
would remove her from the only parents she has known. Though a child's
psychological attachment to a nonparent may be a factor in considering a nonparent
custody petition, the grandparents here failed to present sufficient facts
demonstrating any specific detriment to L.M.S.'s growth and development that
would ensue if Fuga gains custody.
The grandparents contend that their parent-like relationship with L.M.S. is
sufficient to infer actual detriment. Washington courts have recognized that a child's
psychological attachment to a nonparent may be a factor in considering whether
placing the child with the parent will cause actual detriment. In reMarriage ofAllen,
28 Wn. App. 637, 648, 626 P.2d 16 (1981); In re Custody ofStell, 56 Wn. App. 356,
369, 783 P.2d 615 (1989). In Allen, the child's stepmother sought custody after
divorcing from the child's biological father. 28 Wn. App. at 640-41. In awarding
custody to the stepmother, the court noted a relevant factor was the child's bond with
her and her three children:
Joshua had become integrated into the family unit formed by the
marriage of Joe and Jeannie and his adoption of her three children. By
the award of custody to Jeannie, the family unit remains essentially the
same. Where the reason for deferring to parental rights-the goal of
preserving families-would be ill-served by maintaining parental
custody, as where a child is integrated into the nonparent's family, the
de facto family relationship does not exist as to the natural parent and
need not be supported. In such a case, custody might lie with a
nonparent. As noted in In re Aschauer, [93 Wn.2d 689,] 697 n.5, [611
P.2d 1245 (1980)]:
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In re the Custody ofL.MS., No. 92897-5
"[I]t was formerly thought that blood ties between parent
and child were extremely important. Now it is learned that
kinship is not as important as stability of environment and
care and attention to the child's needs. See J. Goldstien,
A. Freud, A Solnit, Beyond the Best Interests of the Child
(1973)."
Id. at 648 (fourth alteration in original) (footnote and citations omitted). Relying on
Allen, the Stell court noted that expert testimony establishing that a child's aunt had
become his psychological parent was a relevant consideration in the custody dispute
with the biological father. Stell, 56 Wn. App. at 369.
But these cases do not demonstrate that a strong psychological connection, on
its own, is sufficient to establish adequate cause. For one thing, Allen and Stell were
decided before the legislature instituted the adequate cause threshold. More
importantly, both Allen and Stell involve unique and extreme circumstances such
that placement with the parent would have resulted in actual detriment.
For instance, in Allen, the child was deaf and the stepmother and her three
children were fluent in sign language but the father was not. 28 Wn. App. at 641-
42. Further, the court describes in great detail the stepmother's admirable efforts to
accommodate the child's disability. Id. at 640-41 ("What makes this case
exceptional is not only the fact that Joshua is deaf, but the dedication and effort
Jeannie put forth to obtain assistance for him during the marriage."). The court
further noted that the stepmother believed that "Joshua has unlimited potential and
that he can reach any goal," while the father's attitude regarding raising a deaf child
10
In re the Custody ofL.MS., No. 92897-5
was "apathetic and fatalistic." I d. at 642. The child's psychological integration into
the stepmother's family was only possible specifically because they could all
communicate with sign language: "We conclude that Joshua's disability and
Jeannie's dedication demanded that he be placed with Jeannie. By placing the child
with the stepmother, along with the other three children, the continuity of that family
unit could be retained." Id. at 649.
In Stell, the child struggled with debilitating mental health issues due to a
history of physical and sexual abuse. 56 Wn. App. at 360-62. The child's aunt
provided a stable home environment and was actively engaged in his therapy and
mental health treatment. Id. The aunt had demonstrated a commitment and an
ability to address the child's needs that the father-who was only intermittently
employed and had moved residences frequently-could not. Id. Although the court
noted the importance of the child's psychological connection to his aunt, relying on
Allen, it also concluded that unlike his father, the aunt could provide him with the
stable environment he needed. Id. at 369.
We have suggested that absent these "extreme and unusual circmnstances," a
parent-like relationship with a child is insufficient to demonstrate adequate cause.
B.MH, 179 Wn.2d at 239. In Shields, we expressed doubt regarding Allen's
discussion of the psychological attachment to nonparents:
Although we approve the actual detriment standard articulated
in Allen, we are concerned with references in that opinion to the
11
In re the Custody ofL.MS., No. 92897-5
concept of a "de facto family." In Allen the court found that the
nonparent, her children, and the child consisted of a "de facto family"
and that in such a case, "custody might lie with a nonparent." Allen, 28
Wn. App. at 648 (emphasis added). As we recently stated
in L.B., incautious use of terms such as psychological parent, in loco
parentis, and de facto parent has led to great confusion. [In re Parentage
of] L.B., 155 Wn.2d [679,] 691 n.7[, 122 P.3d 161 (2005)]. ... Contrary
to the suggestion in Allen, this court has not recognized "de facto
family" as a legal status.
Shields, 157 Wn.2d at 145-46. Indeed, in B.MH, we concluded a nonparent failed
to establish adequate cause despite evidence that he had become the child's
psychological parent. 179 Wn.2d at 239. There, a stepfather filed a nonparental
custody petition after he learned the mother planned to move with the child 50 miles
away. I d. at 230. Because the child's biological father passed away before his birth,
the stepfather had developed a strong parental relationship with the child. Id. The
stepfather fulfilled traditional parenting duties until he divorced the mother when the
child was approximately three years old, and he continued to be actively involved in
the child's life after the divorce. Id.
The stepfather made the same argument that the grandparents present here-
that the child viewed him as his father and that interfering with this relationship
would cause actual detriment. The guardian ad litem assigned to the case submitted
a report declaring that "B.M.H. viewed Mr. Holt as a father and that it would be
detrimental for B.M.H. to terminate contact with Mr. Holt." Id. at 233. But despite
12
In re the Custody ofL.MS., No. 92897-5
this evidence, we concluded that the stepfather failed to demonstrate adequate cause,
specifically distinguishing the unique circumstances in Allen and Stell:
[W]ithout more extraordinary facts bearing on B.M.H.'s welfare, the
prerequisites for a nonparental custody action have not been met. The
concern that Ms. Holt might interfere with Mr. Holt and B.M.H.'s
relationship is insufficient to show actual detriment under Shields and
to meet the burden of production for adequate cause under E. A. T. W:
Although the importance of preserving fundamental psychological
relationships and family units was part of the court's analysis in Allen
and Stell, there were more extreme and unusual circumstances that
contributed to the finding of actual detriment. In each case, the child
had significant special needs that would not be met if the child were in
the custody of the parent. Continuity of psychological relationships and
family units was particularly important where a child had these special
needs. Here, additional circumstances have not been alleged.
B.MH., 179 Wn.2d at 239 (footnote omitted). Our conclusion in B.MH. controls
here.
The grandparents argue that B.MH. is distinguishable due to some notable
differences in this case. For example, in B.MH. the biological mother already had
custody of the child, and he had lived with her more or less consistently throughout
his life. Here, on the other hand, L.M.S. lived mainly wither her grandparents during
her early years while Fuga was absent.
But these differences do not justify finding adequate cause here. The main
evidence the grandparents rely on is their own declarations asserting that L.M.S. has
lived with them for her entire life and that she calls them" mom"' and '"dad.'" CP
at 28. Although L.M.S. undeniably has a strong bond with her grandparents, they
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In re the Custody ofL.MS., No. 92897-5
failed to present facts showing any specific detriment that would ensue if Fuga gains
primary custody.
On the contrary, Fuga is a fit, capable parent willing to raise L.M.S. The
record shows that Fuga and his wife are successfully raising two children in San
Diego. Despite Fuga's early absence in L.M.S.'s life, the record shows he had
reinitiated contact with her. L.M.S. had a positive visit with Fuga and his family in
2012, during which she "never once left [Fuga's] side" and called him "'[d]addy."'
CP at 235. L.M.S. recognizes Fuga as her father and has a positive relationship with
him.
Under these circumstances, the grandparents failed to demonstrate what,
specifically, about the nature of Fuga's custody would harm L.M.S.'s growth and
development. Without more, we cannot assume that interfering with the strong
relationship between L.M.S. and her grandparents would amount to actual detriment.
Transitioning to Fuga's custody will undoubtedly be challenging because change is
always hard. But nothing in the record here suggests this change amounts to the
level of actual detriment contemplated by the adequate cause standard. We have
repeatedly stated that a nonparent petitioner will be able to demonstrate adequate
cause only in '"extraordinary circumstances."' B.MH, 179 Wn.2d at 236 (internal
quotation marks omitted) (quoting Shields, 157 Wn.2d at 145). The circumstances
alleged by the grandparents are compelling, but they are not extraordinary. Indeed,
14
In re the Custody ofL.MS., No. 92897-5
due to the nature of the proceeding, many nonparent petitioners seeking custody of
a child will allege a parent-like relationship with the child. In B.MH, we held that
a similar relationship was insufficient for adequate cause without additional
circumstances. 179 Wn.2d at 239. Likewise, though we do not foreclose the
possibility that interfering with such a relationship might result in actual detriment,
the grandparents failed to present sufficient facts here. I d. at 236 (what causes actual
detriment must be determined on a case-by-case basis).
We find the grandparents' other arguments unpersuasive. First, they argue
that B.MH does not require demonstrating that the child has a special need that the
parent is unable to accommodate. Evidence of a child's special needs can be a factor
weighing in favor of a nonparent seeking custody of a child. See id. at 239
("Continuity of psychological relationships and family units was particularly
important where a child had these special needs. Here, additional circumstances have
not been alleged."); see also Allen, 28 Wn. App. at 640-41 (father was unable to
communicate with deaf child); Stell, 56 Wn. App. at 783 (child abuse victim required
extensive therapy and stability that parent could not provide); In re Custody of
R.R.B., 108 Wn. App. 602, 31 P.3d 1212 (2001) (suicidal child required extensive
therapy and stability that parent could not provide). But the grandparents are correct
that B.MH did not establish a bright-line rule requiring evidence of a child's special
needs to prove adequate cause. However, this does not mean they established
15
In re the Custody ofL.MS., No. 92897-5
adequate cause. Adequate cause requires actual detriment, which the grandparents
failed to prove.
Next, the grandparents argue that they need not prove their allegations, but
instead need only present facts that, "if proved true," would show actual detriment.
B.MH, 179 Wn.2d at 236. But courts need not take every allegation at face value.
Nonparent petitioners seeking custody of a child still must satisfy a burden of
production to show adequate cause. Id. The grandparents have not met their burden
here.
2. Fuga's alleged prior abandonment does not render him unfit
The grandparents also allege that Fuga is an unfit parent because he
abandoned L.M.S. See id. at 235 (adequate cause requires a showing that parental
custody would cause actual detriment to the child or that the parent is "unfit"). They
rely on two statutes. First, RCW 13.34.030(1) defines "abandoned" as "when the
child's parent ... has expressed, either by statement or conduct, an intent to forego,
for an extended period, parental rights or responsibilities despite an ability to
exercise such rights or responsibilities." Second, RCW 26.10.160(2)(a) provides
that"[ v]isitation with the child shall be limited if it is found that the parent seeking
visitation has engaged in ... (i) [w]illful abandonment that continues for an extended
period of time or substantial refusal to perform parenting functions."
16
In re the Custody ofL.MS., No. 92897-5
Although Fuga's absence during L.M.S.'s early years is troubling, we are
skeptical that it rises to abandonment. Fuga claims he maintained occasional contact
with L.M.S. and Siufanua after moving to San Diego. He also claims he provided
money, diapers, and other items for L.M.S. Fuga's parents also had a relationship
with L.M.S. Fuga alleges he lost contact with L.M.S. and Siufanua when she moved
without leaving a forwarding address. Neither Fuga nor his parents could locate
them despite their efforts. The record suggests that the grandparents played a role in
discouraging Fuga's efforts to contact L.M.S., particularly when he returned to
Washington seeking custody. Of course, the grandparents dispute most of Fuga's
claims. In any event, the record does not indisputably demonstrate that Fuga's
absence constitutes legal abandonment.
But even if we assume, without deciding, that Fuga's prior conduct constitutes
abandonment under the statutory provisions the grandparents cite, they provide no
authority supporting their argument that past abandonment justifies a conclusion of
current unfitness. They rely on In re Interest of Mahaney, 146 Wn.2d 878, 894, 51
P.3d 776 (2002), where the court stated that "[e]ven where there is no showing of
present parental unfitness, in determining the best interests of the child the court may
take into consideration emotional and psychological damage from prior unfitness of
a parent and the child's current special needs for treatment and care."
17
In re the Custody ofL.MS., No. 92897-5
But Mahaney is inapposite. The children in that case suffered from mental
and behavioral illnesses that resulted from their parents' past behavior, including
domestic violence, substance abuse, and allegations of sexual abuse. !d. at 884-85.
The parents' prior abuse and the children's resulting disorders were documented by
experts. Id. Here, the grandparents have failed to present facts demonstrating that
Fuga's alleged prior abandonment similarly affected L.M.S. They also do not
explain how Fuga's prior abandonment threatens L.M.S. currently or in the future.
This is unlike Mahaney, where the parents' unfitness manifested in directly harmful
and dangerous behavior.
The record unambiguously shows that Fuga is able and willing to parent
L.M.S. He has complied with a child support order since 2012. He traveled from
California in 2014 specifically because he learned L.M.S.'s mother had been
incarcerated and was unable to parent L.M.S. In fact, the grandparents did not file
a nonparental custody petition until nearly three weeks after Fuga asserted his
custody rights. The grandparents' claim that Fuga's prior abandonment makes him
currently unfit is factually unsupported and legally insufficient to show adequate
cause.
We also note that the grandparents do not allege in their petition for review
that Fuga is unfit due to a propensity for domestic violence. Though they made this
argument at the Court of Appeals, it appears they may have abandoned it here. In
18
In re the Custody ofL.MS., No. 92897-5
any event, Fuga's alleged history of domestic violence does not support a conclusion
that he is currently an unfit parent. The record shows one incident of domestic
violence that occurred over 10 years ago, 8 months before L.M.S. was born. This
incident is too remote in time to support a conclusion of unfitness, particularly when
the record shows Fuga is successfully raising two other children. The grandparents'
other vague references to incidents involving Fuga are unsupported by the record.
At best, the record shows that Fuga and the grandparents got into an argument when
he arrived at their house, looking for L.M.S. There is no other evidence of domestic
violence incidents involving Fuga.
Finally, the grandparents note that the trial court declined to appoint a
guardian ad litem. The trial court certainly had the discretion to do so, but it was not
required here. The primary purpose of the adequate cause threshold is to prevent a
prolonged investigatory process that is an "unnecessary disruption and an evil to be
avoided." E.A. T. W, 168 Wn.2d at 348. If a petitioner fails to provide sufficient
facts to prove adequate cause, the court need not unnecessarily extend the
proceedings by appointing a guardian ad litem.
IV. CONCLUSION
This case presents difficult circumstances. Fuga's absence from L.M.S.'s life
is unfortunate, and the grandparents clearly have a close bond with L.M.S. But Fuga
is capable and willing to raise her. The grandparents have failed to present sufficient
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In re the Custody ofL.MS., No. 92897-5
facts demonstrating that Fuga is unfit or that placement with Fuga would cause
actual detriment to L.M.S.'s growth and development. We therefore hold the trial
court did not abuse its discretion when it denied the grandparents' nonparental
custody petition for lack of adequate cause.
20
In re the Custody ofL.MS., No. 92897-5
WE CONCUR:
20
In re the Custody of L.MS., No. 92897-5
(Yu, J., dissenting)
No. 92897-5
YU, J. (dissenting)-This case centers around a single, simple question: Did
the grandparents ofL.M.S., Faualuga and Billie Siufanua, produce a sufficient
factual basis to wanant a full evidentiary hearing on whether they should be
awarded custody of their granddaughter? Such evidentiary hearings are closely
guarded by the adequate cause requirement ofRCW 26.1 0.032, which protects
families from "useless" hearings where nonparental petitioners cannot prevail on
the merits. In re Custody ofE.A.T. W., 168 Wn.2d 335,348,227 P.3d 1284 (2010).
In my view, this case presents the sort of extraordinary circumstances to believe
that awarding custody to the biological parent, Tony Fuga, would result in actual
harm to L.M.S.'s growth and development. For these reasons, I respectfully
dissent.
Under chapter 26.10 RCW, a nonparental third party may petition for child
custody where sufficient facts exist that, if proved true, would show either that the
biological parent is unfit or that custody with the parent would result in '"actual
detriment to the child's growth and development."' In re Custody ofB.MH, 179
1
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
Wn.2d 224, 235, 315 P.3d 470 (2013)(quoting E.A.T W, 168 Wn.2d at 338).
Should a petitioner meet this prima facie burden, the court must schedule a hearing
to show cause why the requested order should not be granted. RCW 26.1 0.032(2)
("The court shall deny the motion unless it finds that adequate cause for hearing
the motion is established by the affidavits, in which case it shall set a date for
hearing on an order to show cause why the requested order should not be granted."
(emphasis added)). In this way, the court serves first as a gatekeeper, requiring
petitioners to meet the burden threshold by affidavit "before the courthouse doors
will open." E.A.T W, 168 Wn.2d at 346.
The trial court in this case denied the Siufanuas a show cause hearing on
whether custody ofL.M.S. should be awarded in their favor. In refusing to grant a
hearing, the trial court impermissibly engaged in weighing facts when it found that
"[t]he child has a relationship with the father and thinks of the father as her father."
Clerk's Papers (CP) at 61. This finding oversteps the court's role as an initial
gatekeeper. The Siufanuas had not been given an opportunity to present evidence
beyond their initial declaration. Id. at 26-29. Chapter 26.10 RCW required that
the trial court assume the truth of the alleged facts-not weigh them against Fuga's
competing version. E.A. T W, 168 Wn.2d at 338.
The threshold determination to be made by the court was simply whether the
Siufanuas had met a prima facie burden under the statute. Id. Even in
2
In re the Custody of L.MS., No. 92897-5
(Yu, J ., dissenting)
supplemental briefing, Fuga mistakenly challenges the accuracy of the Siufanuas'
facts rather than the legal sufficiency for purposes of chapter 26.10 RCW. See
Suppl. Br. ofResp't at 17 ("The trial court specifically found that LMS has a
relationship with [Fuga], knows him as her father, and recognizes him as such.").
The majority perpetuates this error by highlighting the numerous differences in
Fuga's recitation of facts. See majority at 2, 3.
Further, the majority improperly relies on Fuga's recitation as evidence that
the Siufanuas did not meet their burden. !d. at 14 ("Despite Fuga's early absence
in L.M.S.' life, the record shows he had reinitiated contact with her. L.M.S. had a
positive visit with Fuga and his family in 2012, during which she 'never once left
[Fuga's] side' and called him "'[d]addy."' L.M.S. recognizes Fuga as her father
and has a positive relationship with him." (citation omitted) (quoting CP at 235)),
16-17 ("Fuga claims he maintained occasional contact with L.M.S. and Siufanua
after moving to San Diego. He also claims he provided money, diapers, and other
items for L.M.S."); ("In any event, the record does not indisputably demonstrate
that Fuga's absence constitutes legal abandonment."). But RCW 26.10.032 does
not call on the trial court to engage in fact-finding at this stage, and our
jurisprudence requires only that the Siufanuas provide sufficient facts that would
support adequate cause if proved true. E.A. T. W., 168 Wn.2d at 342-43 (citing
Greico v. Wilson, 144 Wn. App. 865, 875, 184 P.3d 668 (2008)). In truth, Fuga's
3
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
recitation of facts is completely irrelevant to the question before the trial court at
that time and to the question before us now.
The Court of Appeals compounded the trial court's error in a different way.
In affirming, the court noted that "[t]here is no allegation that LMS has a special
need ... Nor is there evidence in the record that Fuga is currently unable to meet
LMS's needs." In re Custody ofL.MS., No. 72938-1-I, slip op. at 6 (Wash. Ct.
App. Feb. 8, 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/
729381.pdf. Although a similar argument regarding a parent-like relationship was
raised in B.MH, this statement by the court reveals a misunderstanding of both the
standard for third party custody petitions as well as the determinative facts in
B.MH Although we have found evidence of actual detriment where a nonparent
enjoys a parent-like relationship and the child has a special need that the biological
parent would be ill equipped to manage, we have never before drawn a bright-line
mle that a special need is a requisite to proving actual detriment. The majority's
holding today brings us closer to such an implicit mle. Majority at 11 ("We have
suggested that absent these 'extreme and unusual circumstances,' a parent-like
relationship with a child is insufficient to demonstrate adequate cause.").
Further, the Court of Appeals misunderstood the operative facts underlying
our holding in B.MH In that case, a stepfather who had raised B.M.H. since birth
alongside his wife, the biological mother, petitioned for custody after the mother
4
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
threatened to move the child out of the area. B.MH, 179 Wn.2d at 230. The trial
court, following the recommendations of an assigned guardian ad litem, found that
adequate cause existed to proceed to a show cause hearing. Id. at 233. We
reversed on discretionary review, noting that while "the importance of preserving
fundamental psychological relationships and family units was part of the court's
analysis" in prior cases, those cases also included "more extreme and unusual
circumstances" such as a child's special needs. Id. at 239. Importantly, the
emphasis of our review was on the importance of preserving the stepfather's
relationship with the child in a case where the biological parent already had
custody and had been raising the child since birth. I d. at 238. We held that the
stepfather's allegations, if proved, "would not meet the high burden of showing
that [the mother] is unfit or that her continued custody ofB.M.H. would result in
actual detriment to his growth and development." Id. at 234 (emphasis added).
Unlike B.MH, the crux of this case is not "moving a child away from a
nonparent to whom the child is bonded." L.MS., No. 72938- 1-I, slip op. at 6.
Rather, this case is about moving a child to a parent with whom the child is
allegedly not bonded in any way and to a parent who did not claim to be her father
or pay child support until ordered to do so by the court. Accordingly, the facts of
this case may be distinguished from B.MH in that the focus is not on the harm of
breaking L.M.S.'s bond with the Siufanuas but in the harm of handing her to a
5
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
complete stranger. See CP at 5 ("The father is a stranger to this child as he
abandoned her when she was one (1) ... [and] has shown no interest in her
academics or extracurricular activities, or any aspect of her life.").
We have stated that the actual detriment standard, when properly applied,
results in the nonparent meeting this substantial burden only in '"extraordinary
circumstances."' In re Custody of Shields, 157 Wn.2d 126, 145, 136 P.3d 117(2006) (quoting In reMarriage ofAllen, 28 Wn. App. 637, 649,626 P.2d 16(1981)). The Siufanuas claim that "[t]his child has no memory of this father" who
is "a stranger coming to take her away." CP at 28. In fact, the Siufanuas
successfully obtained a restraining order on behalf of themselves and L.M.S.
against Fuga just two weeks after Fuga petitioned for custody. !d. at 8-10. These
are certainly extraordinary circumstances. If the Siufanuas' claims are proved true,
it means more than simply the loss of the only parental figures this young girl has
ever known; it also means that L.M.S. must now be raised by a father she allegedly
does not know and has no attachment to. It means the loss of childhood friends
and classmates, the loss of stability, the loss of familiarity and comfort with her
home and her surroundings, and loss of contact with her mother, whose parental
rights have not been terminated. It means being treated as a commodity to be
shipped off to a different state to live with a man who, while certainly fit to parent,
nonetheless made the decision to abandon his child in her infancy and expressed
6
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
only minimal desire to be a part of her life up until this point if the Siufanuas'
allegations are proved true. L.MS., No. 72938-1-l, slip op. at 2.
I agree with the majority that the allegation of Fuga's prior domestic assault
and abandonment, if proved true, does not meet the burden to show that Fuga is
unfit. And, it may be that at a show cause hearing, the court would determine that
Fuga's version of the facts are correct and that no actual detriment would occur to
L.M.S.'s growth and development. Nonetheless, the Siufanuas have presented
facts that, if proved true, show Fuga to be a complete stranger who arrived to take
this young child away without warning, even appearing a second time with a police
officer in tow who later commanded Fuga to leave. CP at 6. These unique
allegations by the Siufanuas present adequate cause to believe that a change in
custody might result in actual detriment to the growth or development of this
young girl. "Just as parents' constitutional rights are long established, it is also
true that children have rights regarding their well-being that are important factors
properly guiding courts' custody decisions. Recognition ofthese rights is not
offensive to the constitution." E. A. T. W, 168 Wn.2d at 346 (footnote omitted); see
In re Parental Rights to K.MM, 186 Wn.2d 466,477,379 P.3d 75 (2016). It is
thus no great stretch of the imagination to believe that "[t]his child will be
emotionally and mentally harmed with the father taking her away from everything
and everyone she knows .... " CP at 28.
7
In re the Custody of L.MS., No. 92897-5
(Yu, J., dissenting)
The Siufanuas-and, indeed, L.M.S. herself-deserve an opportunity to
scratch beneath the surface and demonstrate the actual harm inherent to removing a
child from the only home she has ever known and placing her with an absentee
father in a different state. They may fail to provide sufficient evidence at a show
cause hearing, but such a hearing would certainly not be "useless" under these
facts. E.A. T W., 168 Wn.2d at 348 ("The primary purpose of this threshold
requirement for adequate cause ... is, among other things, to prevent a useless
hearing." (citing In reMarriage ofLemke, 120 Wn. App. 536, 540, 85 P.3d 966(2004)). The majority disagrees, holding that no harm could result to a nine-year-
old girl's growth and development when she is taken away suddenly by a total
stranger who happens to be a fit parent. For these reasons, I respectfully dissent.
8
In re the Custody ofL.MS., No. 92897-5
(Yu, J., dissenting)
``l~z1
'Yha`` J
9