Marvin J. & Rosemary S. Walter v. Arlene B. Thiessen ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Custody of C.W.,
Minor Child, No. 79533-3-I
(consolidated with 79600-3-I)
MARVIN J. WALTER and ROSEMARY
S. WALTER, DIVISION ONE
Appellants/Cross-Respondents,
UNPUBLISHED OPINION
V.
ARLENE THIESSEN,
Respondent/Cross-Appellant. FILED: March 2, 2020
SMITH, J. — Arlene Thiessen appeals from an order awarding custody of
C.W. to Marvin and Rosemary Walter.1 She asserts the trial court abused its
discretion in finding her currently unfit to parent C.W. based on her alcoholism
and recent relapses with alcohol use. For the reasons that follow, we affirm.
FACTS
Arlene Thiessen is the mother of two children, seven-year-old E.B. and
three-year-old C.W. Respondents Marvin and Rosemary Walter are the paternal
grandfather and step-grandmother of C.W. C.W. and E.B. do not share the same
biological father.
1 On January 28, 2020, this court granted the parties’ voluntary motion to dismiss
the Walters’ appeal, leaving only Thiessen’s cross appeal for this court to address.
No. 79533-3-1/2
Thiessen acknowledges that she struggles with alcoholism and
methamphetamine addiction. Prior to 2017, Child Protective Services (CPS)
received several reports alleging drug and alcohol abuse and child neglect by
Thiessen, all of which were determined to be unfounded. Thiessen nevertheless
engaged in alcohol and drug treatment and mental health treatment services at
the request of CPS pursuant to these referrals between July 2014 and October
2017.
In February 2017, when C.W. was two months old, his father Kipp Walter
passed away unexpectedly. At that time, Thiessen and her children were living
with Kipp on his boat at a marina in Tacoma. In April 2017, Thiessen and her
children moved into an apartment near the Walters in Skagit County.
On October 16, 2017, Thiessen was arrested for driving under the
influence (DUI) with both of her children in the car.2 She subsequently agreed to
place her children in CPS custody for 90 days while she entered into an intensive
outpatient treatment program for drug and alcohol abuse. Although Thiessen
wanted the siblings to remain together, CPS placed C.W. with the Walters and
E.B. in foster care. Thiessen also voluntarily agreed to participate in additional
services to address parental issues, to continue receiving treatment from her
mental health counselor, and to attend AA meetings.
CPS determined that E.B. and C.W. could be returned to Thiessen after
the 90-day voluntary placement agreement was complete. However, on
2Thiessen’s DUI charge was dismissed in exchange for pleading guilty to a
negligent driving charge.
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December 8, 2017, the Walters filed a nonparent custody petition for C.W. On
December 22, 2017, the court entered a temporary nonparent custody order
awarding custody of C.W. to the Walters and allowing Thiessen supervised
daytime visitation of three hours once per week. CPS returned E.B. to
Thiessen’s custody in December 2017. Were it not for the temporary nonparent
custody order, CPS would have also returned C.W. to Thiessen’s custody at the
same time.
Between her DUI arrest in October 2017 and the trial in September 2018,
Thiessen had four relapses of alcohol use. In December 2017, she took some
sips of beer and then called her sponsor. In April 2018, she bought a small bottle
of liquor, “took a couple swigs,” then self-reported to CPS and her chemical
dependency counselor. In June 2018, she drank “[what] could have been vodka”
while E.B. was at a skating rink. She did not drink to intoxication, and she self-
reported this relapse. In September 2018, a couple of weeks prior to trial,
Thiessen consumed two one-ounce bottles of Fireball and a beer while E.B. was
at school. Thiessen did not self-report this relapse. It was discovered when
Thiessen’s chemical dependency counselor, Joanna Farnsworth, spoke with
Thiessen on the phone and thought she sounded “emotional.” Farnsworth asked
Thiessen to walk to her office immediately for an individual session. There,
Farnsworth observed that Thiessen appeared to be intoxicated. Farnsworth then
asked Thiessen whether she had been drinking, and Thiessen admitted she had.
Farnsworth directed Thiessen to contact her sober support network and arranged
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for her Parent-Child Assistance Program (PCAP) advocate to be present when
E.B. returned from school.
The court-appointed guardian ad litem (GAL), Annalise Martucci, testified
twice at the custody trial. Martucci testified that her pretrial report recommended
that C.W. should continue to reside primarily with the Walters at least temporarily
with increased visitation for Thiessen. Martucci agreed that “concerns with
regard to parental unfitness persist to this day” and expressed “real concern
about [Thiessen’s] ability to safely supervise both boys at the same time at this
point.” She predicated her opinion on “the fact that [Thiessen] does not have an
ongoing history of being clean,” as well as Thiessen’s lack of coping skills, her
mental and physical health issues, and the stress of watching two children.
Martucci also expressed concern about Thiessen’s pattern of conflicting
statements regarding her drug and alcohol use and her “history of receiving
services and then falling back into very dangerous behavior.” Martucci did not
rule out the possibility that Thiessen would eventually be capable of parenting
C.W. in her own home but did not believe she was there yet.
Farnsworth testified regarding Thiessen’s September 2018 relapse. On
cross-examination, Farnsworth acknowledged that Thiessen had failed to
accurately report the last date she used methamphetamines. She also
acknowledged that urinalysis had failed to catch any of Thiessen’s relapses.
Martucci subsequently returned and testified that Thiessen had failed to inform
her that she had relapsed in June and September 2018. Martucci learned of
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No. 79533-3-1/5
these relapses via Farnsworth’s trial testimony. Based on that new information,
Martucci testified she “would easily say that I believe [Thiessen] is unfit.”
Thiessen’s CPS caseworker Monica Glausen also testified twice at trial.
Glausen initially testified that Thiessen was “doing well with services” and that
she did not have any concerns about returning C.W. to Thiessen’s care as long
as she has a safety plan in place. Glausen stated that she was aware Thiessen
had relapsed in December2017 and “maybe another time.” Following
Farnsworth’s testimony regarding Thiessen’s recent relapses, Glausen returned
and testified that relapses are an expected “part of recovery” and that this new
information did not change her opinion that E.B. and C.W. are safe in Thiessen’s
care. She further testified that she did not believe Thiessen’s relapse placed
E.B. at risk because there was a safety plan in place.
After a five-day bench trial, the court awarded custody of C.W. to the
Walters. The court entered the following pertinent findings:
The child’s mother, Respondent Arlene Thiessen, is currently unfit
due to alcoholism as shown by a relapse in her recovery program
and use of alcohol shortly before trial. Although Petitioners contend
Respondent is unfit for numerous reasons, the only basis
Respondent is currently unfit is because of her alcoholism and recent
relapses with alcohol. This current unfitness may be temporary and
the court believes Respondent should have the opportunity and the
motivation to see if she can overcome this singular unfitness and
come back to this court and show that circumstances have changed,
that she is no longer unfit due to alcoholism, and therefore have
custody of [C.W.] returned to her.
At time of trial Arlene was involved in intensive outpatient services to
address drug and alcohol addiction. The court is concerned that
Respondent is not fully invested in recovery due to several relapses
of alcohol use every 3-4 months, including one right before trial.
Based on this, the one and only issue that the court is focusing its
concern on is Respondent’s alcohol intake. The court finds that the
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No. 79533-3-1/6
most recent relapse so close to trial renders Respondent currently
unfit as a parent, but that this unfitness can be overcome. So the
court is maintaining jurisdiction over this case and granting custody
of [C.W.} to Petitioners, subject to further review, and putting
Respondent on court supervision to monitor her continued progress.
The court recommends Respondent to get into inpatient alcohol
treatment for at least 60 days.
The court also reserved jurisdiction to itself to modify the nonparental
custody decree without a finding of adequate cause for a major modification as
required by RCW 26.09.260 if at some point in the future, the court finds that
Thiessen is no longer unfit to parent C.W. The court ordered a six-month review
hearing and a one-year review hearing for the purpose of monitoring Thiessen’s
progress in overcoming her alcohol addiction and determining whether C.W.
could be returned to Thiessen’s custody. Following trial, Thiessen continued to
participate in drug and alcohol treatment with random urinalysis tests, all of which
were negative as of July 2019.
The Walters appealed from the trial court’s indefinite reservation of
jurisdiction, and Thiessen cross appealed the custody determination. Before the
Walters submitted their opening brief, this court issued an opinion that obviated
the trial court’s rationale for reserving jurisdiction. See In re Custody of S.M., 9
Wash. App. 2d 325, 444 P.3d 637 (201 9). On October 21, 2019, the court withdrew
its jurisdiction over matters of visitation and ordered that Thiessen’s visits with
C.W. be conditionally unsupervised. The parties subsequently stipulated to the
voluntary dismissal of the Walters’ appeal, leaving only Thiessen’s cross appeal
for this court to address.
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No. 79533-3-1/7
ANALYSIS
Custody Determination
Thiessen argues that the trial court erred in granting the Walters’
nonparent custody petition. She contends that substantial evidence does not
support the trial court’s finding that she was currently unfit due to alcoholism.
The nonparental party bears the substantial burden of showing the parent’s
current unfitness or actual detriment to the child. In re Custody of Shields, 157
Wash. 2d 126, 142, 136 P.3d 117 (2006). “Given ‘the trial court’s unique
opportunity to personally observe the parties,’ a trial court’s custody disposition is
not disturbed on appeal absent a manifest abuse of discretion.” In re Custody of
J.E, 189 Wash. App. 175, 182, 356 P.3d 233 (2015) (quoting In re Custody of Stell,
56 Wash. App. 356, 366, 783 P.2d 615 (1989)). “A trial court abuses its discretion
when its decision is manifestly unreasonable or based on untenable grounds.” j~
re Marriage of Kovacs, 121 Wash. 2d 795, 801, 854 P.2d 629 (1993). In resolving
third-party custody petitions, “the petitioning party must prove his or her case by
clear and convincing evidence.” In re Custody of A.L.D., 191 Wash. App. 474, 501,
363 P.3d 604 (2015). We review de novo whether the findings of fact support the
conclusions of law. In re Custody of A.F.J., 179 Wash. 2d 179, 184, 314 P.3d 373
(201 3).
A nonparent may petition for custody of a child if the child is not in the
physical custody of a parent or if the petitioner alleges that neither parent is a
suitable custodian. RCW 26.10.030(1). “Because of parents’ fundamental right
to make decisions regarding the care, custody, and control of their children, we
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No. 79533-3-1/8
afford parents ‘considerable deference’ when balancing the parents’ rights
against both the interests of third parties and children’s rights.” ~ 189 Wn.
App. at 183 (quoting In re Custody of B.M.H., 179 Wash. 2d 224, 234, 315 P.3d 470
(2013)).
In custody disputes between a parent and nonparent, the nonparent
petitioner must establish either 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.” In re the Custody of L.M.S., 187 Wash. 2d 567, 576, 387 P.3d 707
(2017) (quoting In re Custody of E.A.T.W., 168 Wash. 2d 335, 338, 227 P.3d 1284
(2010)). “A parent is unfit if he or she cannot meet a child’s basic needs.”
L.M.S., 187 Wash. 2d at 576. “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]recisely what might [constitute actual detriment to] outweigh parental
rights must be determined on a case-by-case basis.” B.M.H., 179 Wash. 2d at 236
(alterations in original) (internal quotation marks omitted) (quoting Shields, 157
Wash. 2d at 143). The “test for fitness of custody is the present condition of the
mother and not any future or past conduct.” A.L.D., 191 Wash. App. at 506. “A
decree awarding custody to a nonparent under chapter 26.10 RCW is never
permanent because custody is always subject to modification under RCW
26.09.260(1).” In re Custody of Z.C., 191 Wash. App. 674, 693, 366 P.3d 439
(2015).
Thiessen asserts that the trial court erred in finding her unfit based solely
on her September 2018 relapse shortly before trial. However, in an oral ruling
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No. 79533-3-1/9
expressly incorporated into the written findings, the court expressed doubt
regarding Thiessen’s commitment to sobriety in light of her multiple relapses.
But I am extremely concerned about the level of what you are calling
relapse. My concern is you’re not there yet. You’re not really fully
invested in recovery when we’re seeing these relapses every 3 and
4 months, and then we see them right before trial.
The court also expressed concern about Thiessen’s failure to disclose her recent
relapses to the GAL and the court. It is apparent that the court did not view the
September 2018 relapse as an isolated event, but as the tipping point in an
ongoing pattern of behavior.
Thiessen also argues that the evidence regarding her September 2018
relapse does not support the finding of current unfitness. She contends there
was no definitive evidence that she was intoxicated as a result of this relapse and
that there is no evidence EB. would have been unsupervised when he got home
from school that day. We disagree. Farnsworth testified that Thiessen’s
demeanor over the phone prompted her to summon Thiessen to her office and
ask whether she had been drinking. Farnsworth also testified that Thiessen
appeared intoxicated when they met at around 1:30 p.m. and that she felt it was
necessary for Thiessen’s PCAP advocate to be present when EB. returned from
school. Farnsworth’s testimony also established that Thiessen admitted she had
been drinking only after she was confronted. Based on this evidence, the court
stated in its oral ruling that were it not for Farnsworth’s intervention, E.B. would
have come home to a “drunk mother.” It is reasonable to infer that Thiessen’s
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No. 79533-3-I/IC
intoxication likely rendered her unable to supervise E.B. when he came home
from his first day of school.
Thiessen relies on testimony from Glauser and other service providers
who supported returning C.W. to her custody. Thiessen contends that the court’s
finding of unfitness was a clear abuse of discretion because Glauser’s testimony
establishes that the September 2018 relapse did not place E.B. in danger or
change CPS’s opinion that custody of C.W. should be returned to her. She also
argues that it is anomalous to grant a nonparent custody order as to C.W. where
CPS has no current concerns regarding her ability to parent E.B.
However, the court firmly rejected Glauser’s opinion that Thiessen’s four
relapses were merely “part of recovery,” stating,
Ms. Glauser to come in here and testify and ignore a relapse
that happened a week and a half before is a disservice to you and to
this Court. While I don’t know, it seems to me your attorney and
certainly Mr. Dubose seemed extremely surprised by that
information. That’s not forthcoming, and honest, and putting all your
cards on the table so that we can help you. That is continuing to hide
until you’ve gotten caught.
In contrast, the GAL “easily” opined that Thiessen was currently unfit based on
evidence establishing her pattern of relapses and her failure to report them,
including the September 2018 relapse shortly before trial. She testified:
Part of my previous testimony that I believed that I could not say with
certainty that she was unfit was based on the fact that I understood
her to be in complete compliance with everything that those
professionals were asking her to do in which case she would have
demonstrated several months of complete sobriety and potentially a
break in the pattern that we’ve seen for many years previous to that.
[TJhe main change in my testimony is that there was a
relapse. I also think that it was problematic if she did not disclose it.
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No. 79533-3-I/li
She did not disclose it to me.
On this basis, she reasonably concluded that Thiessen had no “ongoing history
of being clean.” The trial court agreed with the GAL’s opinion and rejected that of
Glauser and CPS. We do not review a trial court’s evidentiary weight and
witness credibility determinations. In re Marriage of Burrill, 113 Wash. App. 863,
868, 56 P.3d 993 (2002). Moreover, the trial judge is “not bound by GAL
recommendations.” In re Marriage of Magnuson, 141 Wash. App. 347, 350, 170
P.3d 65(2007); In re Marriage of Swanson, 88Wn. App. 128, 138, 944 P.2d 6
(1997).
Thiessen next asserts that the GAL applied an incorrect standard by
basing her recommendation on the “best interest of the child” rather than the
parental unfitness or detriment standard. But when asked about this at trial, the
GAL testified that she focused on the best interest of the child in her report
because she believed her role was to investigate and make fact-based
recommendations, not to make legal conclusions regarding parental fitness or
detriment. Moreover, the GAL’s trial testimony made clear that she believed
Thiessen was currently unfit based on her relapses and failure to disclose alcohol
use. Ample evidence supports the GAL’s opinion.
Thiessen further asserts that the GAL should not have changed her
opinion as to Thiessen’s fitness based solely on representations made to her
about the September 2018 relapse from the Walters’ attorney, rather than
conducting her own investigation. But Thiessen does not assert that an
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No. 79533-3-1/12
investigation would have revealed new information that would mitigate the impact
of the September 2018 relapse. The GAL’s report and trial testimony do not
create a basis for reversal.
Thiessen also contends that the court’s finding of unfitness was a clear
abuse of discretion because she was not subject to an order prohibiting her from
using alcohol. However, Thiessen cites no authority for the proposition that a
parent with relapsing substance abuse problems cannot be found unfit absent
such an order. This argument is not persuasive.
Next, Thiessen likens her case to several opinions in which the appellate
court either reversed a nonparent custody order or affirmed its denial. None
compel a different result. In ~ the court reversed an agreed nonparent
custody decree because it did not establish parental unfitness or actual
detriment. 191 Wash. App. at 695-96. But here, evidence in the record supported
the trial court’s finding that Thiessen was unfit. In A.L.D., the appellate court
reversed the trial court’s award of custody to the maternal grandmother and step-
grandfather where the trial court did not apply the correct burden of proof, there
was scant evidence of current unfitness, and no independent or expert testimony
showed any detriment to the child. 191 Wash. App. at 505. Here, in contrast, the
trial court applied the correct burden of proof, there was ample evidence that
Thiessen continued to struggle with alcohol abuse, and actual detriment was not
at issue. And in In re Custody of L.M.S., the court held that the father’s alleged
prior abandonment of his daughter was insufficient to make a threshold showing
that custody with him would be an actual detriment to her growth and
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development or that he was currently unfit. 187 Wash. 2d 567, 581, 387 P.3d 707
(2017). But here, the trial court’s findings were expressly based on current
unfitness, not actual detriment.
Thiessen next challenges the trial court’s statement in its oral ruling that
both CPS and Thiessen’s drug and alcohol treatment provider did her “a
disservice” and made things “way too easy” by letting her know ahead of time
when she might be subjected to urinalysis. She contends that the trial court
made this finding based on its own personal experience rather than any evidence
in the record. But Glauser admitted that she requested only one urinalysis
shortly after opening the case, that she did not know whether anyone else at
CPS had requested any other drug testing or urinalysis tests, and that she
scheduled or announced all home visits in advance. Farnsworth also
acknowledged discrepancies in Thiessen’s self-reported use of drugs and
alcohol, and admitted that urinalysis did not detect any of Thiessen’s relapses.
And the GAL expressed concern about Thiessen’s pattern of conflicting
statements regarding her drug and alcohol use. On this basis, it is reasonable to
infer that Thiessen’s service providers unintentionally made it easier for her to
hide any relapses.
Thiessen also argues that the trial court erred in implicitly finding that
placing C.W. in her care would cause actual detriment. However, at a hearing on
September 9, 2019, the court clarified that the nonparent custody order was
based solely on a finding of unfitness. This oral ruling was expressly
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incorporated into the court’s October21, 2019, order on visitation and transfer to
custody.
Attorney Fees
Thiessen requests attorney fees and costs on appeal pursuant to RAP
18.1 and RCW 26.10.080. RAP 18.1 authorizes us to award reasonable attorney
fees and costs if applicable law grants the party the right to recover them. RCW
26.10.080 provides that “[u]pon any appeal, the appellate court may, in its
discretion, order a party to pay for the cost to the other party of maintaining the
appeal and attorney’s fees in addition to statutory costs.” In addressing an award
of attorney fees and costs in the trial court, the statute provides that an award
may be made “after considering the financial resources of all parties.” Both
parties submitted financial declarations to this court. After considering the
parties’ needs and ability to pay, we decline to award Thiessen attorney fees and
costs on appeal.
Affirmed.
WE CONCUR:
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