### J



# I 1 l i 

### FILED OCTOBER 17, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE In the Matter ofthe Custody of H.A.R.,t Child.
PAMELA and THEODORE SUCHLAND, Appellants, and AMANDA MARIE SUCHLAND and JEREMY JOHN REYNOLDS, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 33013-3-111

UNPUBLISHED OPINION

t Toprotectthe privacy interests ofH.A.R., a minor, we use her initials throughout this opinion. General Order ofDivision III, In Re the Use of Initials orPseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), http://www.courts.wa.gov/appellate
_trial_courts/?fa=atc.genordets
_orddisp&ordnumber= 2012 OOl&div=III.No. 33013-3-111 In re Custody of H.A.R. PENNELL, J.

- Theodore and Pamela Suchland appeal the dismissal ofthe de facto parentage action and nonparental custodypetitionthey filed to gain custody oftheir granddaughter, H.A.R. We affirm. 

### FACTS The facts are known to theparties and need notbe recounted in detail. Jeremy Reynolds and Amanda Suchland are H.A.R.'s biological parents. Theyhave neverbeen married. When H.A.R. was approximately two and one-halfyears old, Mr. Reynolds and Ms. Suchland separated and H.A.R. began living with her mother andhermaternal grandparents. Shortly afterthe separation, Mr. Reynolds brought a parentage action seeking a residential schedule for H.A.R. After some legal disputes, Mr. Reynolds began visitation in 2013. Throughout 2013, Mr. Reynolds exercised most ofhis visitationrights. Not long after visitation commenced, H.A.R.'smother abandoned her. This left H.A.R. in the exclusive care ofher grandparents. Mr. Reynolds was not made aware ofthis development. Duringthis same timeframe, the Suchlands grew concernedthat H.A.R. had been physically abused. Child Protective Services became involved and the Suchlands filed a dependency petition in January 2014, based onthe mother's abandonment and Mr.
2No. 33013-3-111 

### In re Custody of HA.R. Reynolds's alleged abuse. Mr. Reynolds denied any abuse and the dependency action
was ultimately dismissed. Nothaving found reliefthrough the dependency, in August 2014 the Suchlands filed a nonparental custodypetition for H.A.R., later amending itto allege de facto parentage. The court found adequate cause to proceedto trial onthe nonparental custody petition butnot onthe de facto parentage claim. Attrial, the court heard from several witnesses. The testimony regarding whether H.A.R. hadbeenphysically abused was mixed. The Suchlands presented testimony suggesting H.A.R. hadbeen abused. Mr. Reynolds testified and denied any abuse. He also called witnesses to support his claims. Atthe end oftrial, the court determined the Suchlands had notprovedby a preponderance ofthe evidence that Mr. Reynolds was an unfit parent orthat he had abused H.A.R. The court found several ofthe Suchlands' witnesses not credible. In addition, the court did not considerphotographs ofH.A.R.'s bruising indicative ofabuse. Although the court found H.A.R. was happy with her grandparents and thrived in their home, the court explained that the "best interest ofthe child" standard did not apply to a nonparental custody proceeding. Clerk's Papers at 541, 543. The court then dismissed the nonparental custody petition. The Suchlands appeal.

3No. 33013-3-111 

### In re Custody of HA.R.
ANALYSIS 

### Adequate causefor defactoparentage The Suchlands contend the trial court should nothave dismissed their de facto parentage action because theypresented evidence Mr. Reynolds fostered the Suchlands' parent-like relationship with H.A.R. The Suchlands pointto: (1) Mr. Reynolds's delay in obtaining visitation, and (2) his nonpayment ofchild support. This courtreviews a ruling concerningthe placement ofa child for abuse ofdiscretion. 

### In re Parentage of J.A.B., 146 Wn. App. 417,422, 191 P.3d 71 (2008). "[A] 

### defacto parent stands in legal parity with an otherwise legal parent." 

### In re Parentage of L.B., 155 Wn.2d 679, 708, 122 P.3d 161 (2005). A personpetitioning for de facto parentage must showthe following: "(1) the natural or legal parent consentedto and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations ofparenthood without expectation offinancial compensation, and (4) the petitionerhas been in a parental role for a length oftime sufficient to have established with the child a bonded, dependentrelationship, parental in nature." 

### J.A.B., 146 Wn. App. at 427 (quoting

### L.B., 155 Wn.2d at 708). Thetrial courtproperly held thatthe Suchlands failed to establishthe first element ofde facto parentage. While Mr. Reynolds couldhave done more to be with H.A.R. and

4No. 33013-3-111 

### In re Custody of HA.R. provide financial support, 1he never abandoned his daughter. Nor is there any evidence Mr. Reynolds consented to the Suchlands taking over the role ofH.A.R.'sparents. To the contrary, it was the efforts ofMr. Reynolds to exercise his rights as H.A.R.'s father that placed him in conflict with the Suchlands. The evidence presented by the Suchlands did not meetthe rigorous standards required for establishing de facto parentage. 

### CfIn re Parentage of J.B.R., 184 Wn. App. 203, 205-07, 214, 336 P.3d 648 (2014) (father's failure to seekrelationship with daughter for more than 10 years evidenced consentto de facto parentage). 

### Nonparental custodypetition Chapter 26.10 RCW permits a third party nonparentto petition a court for custody ofa child. Because such a request necessarily implicates the parent's fundamental right to raise his or her children without state interference, this court affords a parent considerable deference when balancing the parent'srights against both the interests of third parties and children's rights. 

### In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998), 

### ajf'dsub nom. Troxel v. 

### Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); 

### In re Custody of J.E., 189 Wn. App. 175, 183-84, 356 P.3d 233 (2015). A court

1 While Mr. Reynolds failed to pay child support, he did provide insurance coverage for H.A.R. The fact that the Suchlands did notwant to use Mr. Reynolds's insurance cannotbe said to be his fault. 

### 5No. 33013-3-111 

### In re Custody of HA.R.
will only grant the thirdparty's petition when the nonparent establishes by clear and convincing evidence that "either the parent is unfit or custody with the parent would result in 'actual detrimentto the child's growth and development."' J.E., 189 Wn. App. at 184 (internal quotation marks omitted) (quoting

### In re Custody of B.MH., 179 Wn.2d 224,235, 315 P.3d 470 (2013)); 

### In re Custody ofC.C.M, 149 Wn. App. 184, 205-06, 202 P.3d 971 (2009). The Suchlands correctly point out that the trial court used the wrong standard of proofin assessing their nonparental custody petition. Instead ofemploying a preponderance standard, the court should have utilized the more stringent clear and convincing standard. Butthis error does not benefit the Suchlands. By finding the Suchlands failed to prove by a preponderance ofthe evidence that Mr. Reynolds was an unfit parent or dangerous to H.A.R., the trial court necessarily also found the Suchlands had failed to satisfy their burden ofproofby clear and convincing evidence. Although the Suchlands did present some evidence ofabuse and parental unfitness at trial, the evidence
was not so overwhelming to compel a decision in their favor. The trial court's findings in favor ofMr. Reynolds have evidentiary support and therefore withstand scrutiny on appeal.

6

# I
I



# i 

# I No. 33013-3-111 In re Custody of H.A.R. 

### CONCLUSION The trial court's orders dismissing the de facto parentage action and nonparental custody petition are affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040. Pennell, J. WE CONCUR:

Siddoway, J.

7