Adam Hom v. Thomas Hom ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Custody of: M.H. and B.H.-W.,
No. 81399-4-I
Children,
DIVISION ONE
CATHERINE HOM and THOMAS HOM,
Respondents, UNPUBLISHED OPINION
v.
KRISTEN WEST and ADAM HOM,
Appellants.
ANDRUS, A.C.J. — Adam Hom appeals a decree awarding nonparental
custody of his minor children to Catherine and Thomas Hom. Adam 1 primarily
argues clear, cogent and convincing evidence does not support the trial court’s
determination that placing the children with him would cause actual detriment to
their growth and development. He fails, however, to provide us with a report of
proceedings that reflects the witnesses’ testimony at trial. Because we lack a
sufficient record to review Adam’s claimed errors or to grant the relief he seeks,
we affirm the trial court’s decision.
1
Because the parties share the same last name, we refer to the Homs by their first names
for clarity. We intend no disrespect. Kristen West is not a party on appeal and her custodial rights
are not at issue.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81399-4-I/2
FACTS
Though our review is hampered by an inadequate record, we discern the
following facts from the scant pleadings Adam has provided. 2 Adam and Kristen
are parents of two minor children, M.H. and B.H.-W. Catherine and Thomas are
the children’s aunt and uncle, respectively.
On June 4, 2018, Catherine and Thomas filed a petition for nonparental
custody of M.H. (then age ten) and B.H.-W. (then age seven), alleging that neither
Kristen nor Adam was a suitable custodian. The petition asserted the children
would suffer actual detriment to their growth and development if they lived with
either parent because the:
Parents Have been evicted 6-25-18, no home to go to. Took
mattress, Tent, 2 suitcases & a propane grill. Both Parents are
Active drug uses & active Drug Dealers. Father is a Registered Sex
offender, mother is Bipolar & not taking meds because the sell them.
Living conditions I have produced photos, the little girls mattress was
on floor w/ live Rats living in it. Children are constantly verbally &
physically abused & scared that now Homeless.
(Errors in original). If the children were in their custody, Catherine and Thomas
said, M.H. and B.H.-W. “will not be abused or neglected.”
On August 17, 2018, the court approved an order on adequate cause for
nonparental custody and gave temporary custody of the children to Catherine and
Thomas.
2
Adam also provides us with 17 of the 26 exhibits admitted at trial. We decline to consider
those documents because, without the report of proceedings, it is impossible to determine what the
trial court said in admitting the exhibits, for what purposes the court admitted them, or the weight
the court gave them, if any.
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On December 21, 2018, Adam filed his response to the petition, asserting
that “All Allegations are false & lies, total B.S.” and “petitioners reasons are false
and nothing but more lies.” (Errors in original).
The two-day bench trial on the petition began on July 9, 2019. Nine
witnesses testified at trial. On July 10th, the trial court entered a final nonparental
custody order placing the children with Catherine and Thomas. It made
accompanying findings of fact that Kristen was unfit, and the following pertinent
ones concerning Adam:
Adam: At the time of removal this respondent had
demonstrated neglect by not providing adequate living
circumstances (filth, rodent infestation, inadequate sanitation,
Inadequate medical care for the children.) There was credible
testimony as to verbal and emotional abuse of the children. Failure
to protect from emotional and physical abuse by other relatives.
Adam may be a fit parent however the girls will suffer actual harm to
their development if returned to Adam.
General Factual [F]indings:
1. Parents’ residence on Wiggens was rat-infested, filthy and
unfit for human habitation and the Respondents [Kristen and Adam]
failed to remediate or change the conditions.
2. Respondents engaged in verbal and emotional abuse of
the children calling them bitch, lard-ass, dumb, dumb-ass.
3. Respondents failed to protect the children from similar
name-calling and verbal abuse and physical abuse (striking or
“popping” the children on the back of the head) by the grandmother.
4. [M.H.] was severely overweight from improper nutrition.
5. Both [children] suffered breathing issues which are either
attributable to or exacerbated by the living conditions with the
parents.
6. The issues in Finding 4 and 5 have significantly improved
or resolved with the [children] out of the care of the parents.
The court also found it in the children’s best interests to live with Catherine
and Thomas because “[r]eturning the children to either parent will result in actual
detriment to the children. Neither parent has demonstrated the ability to
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No. 81399-4-I/4
adequately parent or protect the children. Kristen West has demonstrated
abandonment of the children.” The court then entered an order granting Adam
scheduled visitation of the children.
Adam appeals.
ANALYSIS
Adam raises three issues for our review. Before reaching his primary claim
that insufficient findings support the trial court’s “actual detriment” conclusion, we
first address his claim that the court entered an erroneous finding and used the
wrong legal standard in awarding custody to Catherine and Thomas.
Standard of Review
We review a trial court’s nonparental custody determination for an abuse of
discretion. In re Custody of Stell, 56 Wn. App. 356, 366, 783 P.2d 615 (1989); In
re Custody of L.M.S., 187 Wn.2d 567, 574, 387 P.3d 707 (2017). A court “abuses
its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47,
940 P.2d 1362 (1997). Given the trial court’s “unique opportunity to personally
observe the parties,” we will disturb a custody determination only when both the
court’s written and oral rulings demonstrate a failure to consider statutory
requirements. In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288(1981). On review, we do not reweigh the evidence or the trial court’s credibility
determinations. In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846(2006).
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Erroneous Finding
Adam contends the trial court erred in finding that he has not “demonstrated
the ability to adequately parent or protect the children.” But Adam failed to provide
us with a report of the trial proceedings. He also designated only a smattering of
the pleadings and exhibits that comprise the trial court record. The record before
us does not indicate what the parties argued below.
Adam, as the appellant, bears the burden of perfecting the record so the
reviewing court has before it all relevant material to decide the issues presented.
In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990); RAP 9.2(b) (“A
party should arrange for the transcription of all those portions of the verbatim report
of proceedings necessary to present the issues raised on review.”). Absent a
record of the testimony of numerous trial witnesses, we can only speculate whether
“substantial evidence” 3 supports the trial court’s findings. When the appellate
record does not contain a report of proceedings, the trial court’s findings are
accepted as verities. Rekhi v. Olason, 28 Wn. App. 751, 753, 626 P.2d 513 (1981).
Thus, we accept these challenged, as well as the court’s other unchallenged,
findings as true. 4 The court neither abused its discretion nor erred.
The Proper Legal Standard
Adam claims the trial court incorrectly applied the “best interest of the child”
standard to make its custody determination. What standard the trial court applied
3
Substantial evidence is sufficient to persuade a fair-minded, rational person of the truth
of the declared premise. In re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009).
4
In his briefing, Adam clarifies that he is challenging only one finding of fact and not any
of “the others.” We accept unchallenged findings of fact as true on appeal. In re Dependency of
J.M.R., 160 Wn. App. 929, 939, 249 P.3d 193 (2011).
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and whether that standard was legally correct are both questions of law that we
review de novo. Hundtofte v. Encarnacion, 181 Wn.2d 1, 13, 330 P.3d 168 (2014)
(citing Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004)).
RCW 26.10.030(1) provides that a 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.” The court must make
a threshold determination that the petition and supporting affidavits establish
adequate cause for a hearing. RCW 26.10.032. Adam does not dispute the trial
court’s adequate cause determination made in this case.
Once the initial threshold is met, “[t]he court shall determine custody in
accordance with the best interests of the child.” RCW 26.10.100. “But it is well
settled that ‘best interest of the child’ is a constitutionally insufficient basis on which
to deprive a parent of parental rights.” In re Custody of Z.C., 191 Wn. App. 674,
692, 366 P.3d 439 (2015) (citing In re Custody of Smith, 137 Wn.2d 1, 20, 969
P.2d 21 (1998)). In order to protect a parent’s constitutional right, a nonparent
seeking custody must establish, by clear, cogent, and convincing evidence that
“the parent is unfit or [] placement with an otherwise fit parent would cause actual
detriment to the child’s growth and development.” In re Custody of Shields, 157
Wn.2d 126, 150, 136 P.3d 117 (2006); In re Custody of C.C.M., 149 Wn. App. 184,
202-05, 202 P.3d 971 (2009). This is a heightened standard that will typically be
met only in “ ‘extraordinary circumstances.’ ” In re Custody of B.M.H., 179 Wn.2d
224, 236, 315 P.3d 470 (2013) (quoting In re Marriage of Allen, 28 Wn. App. 637,
649, 626 P.2d 16 (1981)).
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Here, in its oral ruling, 5 the trial court acknowledged the heightened legal
standard applicable to nonparental custody actions, and explained:
So what we have is, statutory provisions indicate for a non-
parental custody action which is contested, that it is the petitioner’s
burden by clear, cogent, and convincing evidence. And as I stated
at the very beginning of this trial, normal civil cases are a
preponderance of the evidence, 50 percent plus 1 is a simple way to
explain it. And it’s somewhat less than the beyond a reasonable
doubt burden in a criminal case. But it’s much closer to that than it
is to the preponderance of the evidence.
The statutes require a couple of things, either that the parent
is unfit or unsuitable – and that is not a defined term. The closest
that we get is reference back to the dependency statutes for fitness.
....
The next part of the statutory scheme indicates that even if a
parent is fit, the Court has the authority not to return the children to
them if returning the child or children would result in actual harm or
actual detriment to the child. And that’s a high burden.
It is more than just saying that where the child currently is, it
is better for the child to be there because it has more opportunities
or things of that nature. It is something more than what we use in
dependency land, which is the best interests of the child. It is more
than that. It requires more than that. We have to have a showing of
actual harm to the child if the child would be returned to that parent.
(Emphasis added).
Based on our review of the limited record available, we conclude that the
trial court applied the proper legal standard to determine the children’s placement.
There was no error.
5
We “may consider a trial court’s oral decision so long as it is not inconsistent with the trial
court’s written findings and conclusions.” State v. Kull, 155 Wn.2d 80, 88, 118 P.3d 307 (2005)
(citing State v. Bryant, 78 Wn. App. 805, 812-13, 901 P.2d 1046 (1995)). We see no inconsistency
in the trial court’s understanding of the applicable legal standard.
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“Actual Detriment” Determination
Adam mainly argues the trial court’s findings of fact do not support its legal
conclusion that placing the children in his care would detrimentally affect their
growth and development. 6 Whether placement of a child will result in actual
detriment to his or her growth and development is a highly fact-specific inquiry,
and exactly when actual detriment outweighs parental rights is determined on a
case-by-case basis. Shields, 157 Wn.2d at 143 (quoting Allen, 28 Wn. App. at
649).
We review de novo whether a trial court’s findings of fact support its
conclusions of law. In re Custody of A.F.J., 179 Wn.2d 179, 184, 314 P.3d 373(2013). Our first step, which we have just completed, requires us to determine if
the trial court “applied the correct legal standard to the facts under consideration.”
Rasmussen v. Bendotti, 107 Wn. App. 947, 954, 29 P.3d 56 (2001) (citing State v.
Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981)).
Next, because “[e]very conclusion of law . . . necessarily incorporates the
factual determinations made by the court in arriving at the legal conclusion (or
ultimate fact),” Id. (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d
98, 101-02 (3d Cir. 1981)), we examine the factual findings in light of the evidence
from which they arose and analyze them in comparison with similar case law or
authorities. Here, however, we can go no further than simply identifying the trial
court’s findings because our review is hindered by a lack of report of proceedings.
6
Because the trial court found Adam was a fit parent, we need not address that issue.
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For instance, in amplifying its written findings, the trial court noted at its oral
ruling how returning the children to Adam’s care would detrimentally affect them:
Adam . . . [t]he question then falls to the next stage, which is,
will the children suffer actual detriment or actual harm if I return the
children to you.
....
But the condition of that apartment was obviously dangerous
to the children.
....
Now, that is exacerbated by the fact that both [children] had
breathing issues. And I didn’t hear anything about any efforts that
you or Kristen made to address those breathing issues, other than
you talked about the nebulizers, and you talked about the inhalers.
And that is a step. And I do recognize that. But in looking at the
depth of the issues that the [children] had, it was probably
inadequate.
....
[T]he [children] self-reported to the physician that type of
physical striking around the ears. And that was consistent with
[Catherine’s] testimony, as well. And so I think that that has
happened . . . And I think, Adam, from my questions for you when
you were testifying, I think you probably read into my concerns about
your ability to protect from those types of activities happening . . . My
questions – I don’t believe that you are in a place right now where
you can.
....
I am not making a finding that you are an unfit parent;
however, the [children] will suffer actual harm to their development if
returned to Adam at this time.
(Emphasis added).
Additionally, because Adam was residing with his mother (the children’s
grandmother) at the time of trial, and due to his mother’s abuse of the children, the
trial court ruled that Adam could not use his “mom for daycare” or “babysitting.”
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While we recognize Adam’s dispute regarding the sufficiency of the trial
court’s actual detriment findings, there is no debate that the court indeed made
them. And though Adam points to numerous nonparental custody cases to
distinguish this case from the ones in which a grant of the petition was upheld and
analogizes to the ones in which the petition was reversed, we cannot engage in
analysis absent a report of proceedings. We would be doing nothing other than
speculating.
In sum, on this limited record, we conclude that the trial court applied the
correct legal standard and made findings of actual detriment. Without a report of
proceeding, however, we lack the ability to say whether the court’s findings are
insufficient as a matter of law and decline to overturn the trial court’s custody
determination.
We affirm. 7
WE CONCUR:
7
Catherine and Thomas request that the parenting plan be amended or modified to correct
inaccuracies and lower the amount of Adam’s visitation with the children. Because they did not
cross-appeal, we decline to grant Catherine and Thomas’s request for affirmative relief in
accordance with RAP 2.4(a).
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