IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe 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(consolidated with 79600-3-I) MARVIN J. WALTER and ROSEMARY S. WALTER, DIVISION ONE Appellants/Cross-Respondents, UNPUBLISHED OPINION V. ARLENE THIESSEN,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 RosemaryWalter.1 She asserts the trial court abused its discretion in finding her currently unfit to parent C.W. based on heralcoholism and recent relapses with alcohol use. Forthe reasons thatfollow, we affirm. FACTS Arlene Thiessen is the mother oftwo children, seven-year-old E.B. and three-year-old C.W. Respondents Marvin and RosemaryWalterare the paternal grandfatherand step-grandmother ofC.W. C.W. and E.B. do not share the same biological father.

1 On January28, 2020, this court granted the parties’ voluntary motion to dismiss theWalters’ appeal, leaving onlyThiessen’s cross appeal forthis courtto address.No. 79533-3-1/2

Thiessen acknowledges that she struggles with alcoholism and methamphetamine addiction. Priorto 2017, Child Protective Services (CPS) received several reports alleging drug and alcohol abuse and child neglect by Thiessen, all ofwhich were determined to be unfounded. Thiessen nevertheless engaged in alcohol and drug treatment and mental health treatment services at the request of CPS pursuantto 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 thattime, 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 nearthe Walters in Skagit County. On October 16, 2017, Thiessen was arrested fordriving underthe influence (DUI) with both of her children in the car.2 She subsequently agreed to place herchildren in CPS custodyfor 90 days while she entered into an intensive outpatienttreatment program fordrug and alcohol abuse. Although Thiessen wanted the siblings to remain together, CPS placed C.W. with the Walters and E.B. in fostercare. Thiessen also voluntarily agreed to participate in additional services to address parental issues, to continue receiving treatmentfrom 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-dayvoluntary placement agreementwas complete. However, on

2 Thiessen’s DUI chargewas dismissed in exchange for pleading guiltyto a negligent driving charge. 2No. 79533-3-1/3

December8, 2017, the Walters filed a nonparent custody petition for C.W. 

## On December22, 2017, the court entered a temporary nonparent custody order awarding custody of C.W. to the Walters and allowing Thiessen supervised daytime visitation ofthree hours once perweek. CPS returned E.B. to Thiessen’s custody in December2017. Were it notforthe temporary nonparent custody order, CPS would have also returned C.W. to Thiessen’s custodyat the
same time. Between her DUI arrest in October2017 and the trial in September2018, Thiessen had four relapses ofalcohol use. In December2017, she took some sips of beerand 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 drinkto intoxication, and she selfreported this relapse. In September2018, a couple ofweeks priorto trial, Thiessen consumed two one-ounce bottles of Fireball and a beerwhile E.B. was at school. Thiessen did not self-reportthis relapse. Itwas discovered when Thiessen’s chemical dependency counselor, Joanna Farnsworth, spoke with Thiessen on the phone and thought she sounded “emotional.” Farnsworth asked Thiessen to walkto her office immediatelyforan 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 hersobersupport network and arranged

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for her Parent-Child Assistance Program (PCAP) advocate to be presentwhen E.B. returned from school. The court-appointed guardian ad litem (GAL), Annalise Martucci, testified twice atthe custodytrial. Martucci testified that her pretrial report recommended that

### C.W. should continue to reside primarilywith the Walters at leasttemporarily with increased visitation forThiessen. Martucci agreed that “concerns with regard to parental unfitness persistto this day” and expressed “real concern about [Thiessen’s] abilityto safely supervise both boys atthe same time atthis point.” She predicated her opinion on “the factthat [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 ofwatching two children. Martucci also expressed concern aboutThiessen’s pattern of conflicting statements regarding herdrug and alcohol use and her “history of receiving services and then falling back into very dangerous behavior.” Martucci did not rule outthe possibilitythat Thiessen would eventually be capable of parenting C.W. in herown home but did not believe she was there yet. Farnsworth testified regarding Thiessen’s September2018 relapse. On cross-examination, Farnsworth acknowledged thatThiessen had failed to accurately reportthe last date she used methamphetamines. She also acknowledged that urinalysis had failed to catch any ofThiessen’s relapses. Martucci subsequently returned and testified thatThiessen had failed to inform herthat she had relapsed in June and September2018. Martucci learned of

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these relapses via Farnsworth’s trial testimony. Based on that new information, Martucci testified she “would easily saythat I believe [Thiessen] is unfit.” Thiessen’s 

## CPS caseworker Monica Glausen also testified twice attrial. Glausen initiallytestified 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 anothertime.” Following Farnsworth’s testimony regarding Thiessen’s recent relapses, Glausen returned and testified that relapses are an expected “part of recovery” and thatthis new information did not change her opinion that E.B. and C.W. are safe in Thiessen’s
care. She furthertestified that she did not believe Thiessen’s relapse placed E.B. at risk because there was a safety plan in place. Aftera five-day bench trial, the court awarded custody of C.W. to the Walters. The court entered the following pertinentfindings: 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 ofheralcoholism 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 backto this courtand showthat circumstances have changed, that she is no longer unfit due to alcoholism, and therefore have custody of [C.W.] returned to her. Attime oftrial Arlenewas involved in intensive outpatientservicesto address drug and alcohol addiction. The court is concerned that Respondent is notfully 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 thatthe 5No. 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 overthis case and granting custody of [C.W.} to Petitioners, subject to further review, and putting Respondent on court supervision to monitor hercontinued progress. The court recommends Respondent to get into inpatient alcohol treatmentforat least 60 days. The court also reserved jurisdiction to itselfto modifythe nonparental custody decree without a finding ofadequate cause fora major modification as required by RCW26.09.260 ifat some point in the future, the courtfinds that Thiessen is no longer unfitto parent C.W. The court ordered a six-month review hearing and a one-year review hearing forthe 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 treatmentwith random urinalysis tests, all ofwhich
were negative as ofJuly2019. 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 Wn. App. 2d 325, 444 P.3d 637 (201 9). On October21, 2019, the courtwithdrew itsjurisdiction over matters ofvisitation and ordered thatThiessen’s visits with C.W. be conditionally unsupervised. The parties subsequently stipulated to the voluntary dismissal ofthe Walters’ appeal, leaving onlyThiessen’s cross appeal forthis courtto address.

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ANALYSIS

Custody Determination Thiessen argues thatthe trial court erred in granting the Walters’ nonparent custody petition. She contends that substantial evidence does not supportthe trial court’s finding that she was currently unfit due to alcoholism. The nonparental party bears the substantial burden ofshowing the parent’s current unfitness oractual detrimentto the child. In re Custody of Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006). “Given ‘the trial court’s unique opportunityto personally observe the parties,’ a trial court’s custody disposition is not disturbed on appeal absent a manifest abuse ofdiscretion.” In re Custody of J.E, 189 Wn. App. 175, 182, 356 P.3d 233 (2015) (quoting In re Custody of Stell, 56 Wn. App. 356, 366, 783 P.2d 615 (1989)). “Atrial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.” j~
re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). In resolving third-party custody petitions, “the petitioning party must prove his or hercase by clear and convincing evidence.” In re Custody ofA.L.D., 191 Wn. App. 474, 501, 363 P.3d 604 (2015). We review de novo whetherthe findings offact supportthe conclusions of law. In re Custody ofA.F.J., 179 Wn.2d 179, 184, 314 P.3d 373 (201 3).A nonparent may petition for custody ofa child ifthe child is not in the physical custody ofa parent or ifthe petitioneralleges that neither parent is a suitable custodian. RCW26.10.030(1). “Because of parents’ fundamental right to make decisions regarding the care, custody, and control oftheir children, we 7No. 79533-3-1/8

afford parents ‘considerable deference’ when balancing the parents’ rights against both the interests ofthird parties and children’s rights.”

~ 189 Wn. App. at 183 (quoting In re Custody of B.M.H., 179 Wn.2d 224, 234, 315 P.3d 470 (2013)). In custody disputes between a parent and nonparent, the nonparent petitioner must establish eitherthat the parent is unfit orthat placing the child with the parentwould result in “actual detrimentto the child’s growth and development.” In re the Custody of L.M.S., 187 Wn.2d 567, 576, 387 P.3d 707 (2017) (quoting In re Custody of E.A.T.W., 168 Wn.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 Wn.2d at 576. “Whether placementwith a parentwill result in actual detrimentto a child’s growth and development is a highlyfact-specific inquiry, and ‘[p]reciselywhat might [constitute actual detrimentto] outweigh parental rights must be determined on a case-by-case basis.” B.M.H., 179 Wn.2d at 236 (alterations in original) (internal quotation marks omitted) (quoting Shields, 157 Wn.2d at 143). The “testforfitness ofcustody is the present condition ofthe motherand not anyfuture or past conduct.” A.L.D., 191 Wn. App. at 506. “A decree awarding custodyto a nonparent underchapter 26.10 RCW is never permanent because custody is always subjectto modification under RCW 26.09.260(1).” In re Custody ofZ.C., 191 Wn. App. 674, 693, 366 P.3d 439 (2015).Thiessen asserts thatthe trial court erred in finding her unfit based solely
on her September2018 relapse shortly before trial. However, in an oral ruling 8No. 79533-3-1/9

expressly incorporated into the written findings, the court expressed doubt regarding Thiessen’s commitmentto sobriety in light of her multiple relapses. But I am extremely concerned aboutthe level ofwhatyou 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 apparentthatthe court did not viewthe September2018 relapse as an isolated event, but as the tipping point in an ongoing pattern of behavior. Thiessen also argues that the evidence regarding her September2018 relapse does not supportthe finding ofcurrent unfitness. She contends there
was no definitive evidence that she was intoxicated as a result ofthis relapse and thatthere is no evidence EB. would have been unsupervised when he got home from school that day. We disagree. Farnsworth testified thatThiessen’s demeanor overthe phone prompted herto summon Thiessen to her office and askwhethershe had been drinking. Farnsworth also testified thatThiessen appeared intoxicated when they met at around 1:30 p.m. and that she felt itwas necessaryforThiessen’s PCAP advocate to be presentwhen EB. returned from school. Farnsworth’s testimony also established thatThiessen admitted she had been drinking only aftershe was confronted. Based on this evidence, the court stated in its oral ruling thatwere it notfor Farnsworth’s intervention, E.B. would have come home to a “drunk mother.” It is reasonable to inferthat Thiessen’s

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intoxication likely rendered her unable to supervise E.B. when he came home from his first day ofschool. Thiessen relies on testimonyfrom Glauserand otherservice providers who supported returning C.W. to her custody. Thiessen contends thatthe court’s finding of unfitness was a clearabuse ofdiscretion because Glauser’s testimony establishes thatthe September2018 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 herabilityto parent E.B. However, the courtfirmly rejected Glauser’s opinion thatThiessen’sfour relapses were merely “part of recovery,” stating,

Ms. Glauserto come in here and testify and ignore a relapse that happened a week and a half before is a disserviceto 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 notforthcoming, and honest, and putting all your cards on thetable sothatwe can help you. That is continuing to hide until you’ve gotten caught. In contrast, the GAL “easily” opined thatThiessen was currently unfit based on evidence establishing her pattern of relapses and herfailure to reportthem, including the September2018 relapse shortly before trial. She testified: Partofmy previous testimonythat I believed that I could notsaywith certaintythat 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 ofcomplete sobriety and potentially a break in the pattern thatwe’ve seen for manyyears previous to that.

[TJhe main change in my testimony is that there was a relapse. I also thinkthat itwas problematic ifshe did not disclose it. 10No. 79533-3-I/li

She did not disclose itto me.

On this basis, she reasonably concluded thatThiessen 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 evidentiaryweight and witness credibility determinations. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). Moreover, the trialjudge is “not bound by GAL recommendations.” In re Marriage of Magnuson, 141 Wn. App. 347, 350, 170 P.3d 65(2007); In re Marriage ofSwanson, 88Wn. App. 128, 138, 944 P.2d 6 (1997).Thiessen next asserts thatthe GAL applied an incorrect standard by basing her recommendation on the “best interest ofthe child” ratherthan the parental unfitness ordetriment standard. Butwhen asked aboutthis attrial, the GALtestified that she focused on the best interest ofthe child in her report because she believed her role was to investigate and make fact-based recommendations, notto make legal conclusions regarding parental fitness or detriment. Moreover, the GAL’s trial testimony made clearthat 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 thatthe GAL should not have changed her opinion as to Thiessen’s fitness based solely on representations made to her aboutthe September2018 relapse from the Walters’ attorney, ratherthan conducting herown investigation. ButThiessen does not assertthat an

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investigation would have revealed new information thatwould mitigate the impact ofthe September2018 relapse. The GAL’s report and trial testimony do not create a basis for reversal. Thiessen also contends thatthe court’s finding of unfitness was a clear abuse ofdiscretion because she was not subjectto an order prohibiting herfrom using alcohol. However, Thiessen cites no authorityforthe proposition that a parentwith relapsing substance abuse problems cannot be found unfit absent such an order. This argument is not persuasive. Next, Thiessen likens hercase 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 oractual detriment. 191 Wn. App. at 695-96. But here, evidence in the record supported the trial court’s finding thatThiessen was unfit. In A.L.D., the appellate court reversed the trial court’s award ofcustodyto the maternal grandmotherand stepgrandfatherwhere the trial court did not applythe correct burden of proof, there
was scant evidence of current unfitness, and no independent orexperttestimony showed any detrimentto the child. 191 Wn. 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 detrimentwas not at issue. And in In re Custody of L.M.S., the court held thatthe father’s alleged priorabandonment of his daughterwas insufficientto make a threshold showing that custodywith him would be an actual detrimentto hergrowth and 12No. 79533-3-1/13

development orthat he was currently unfit. 187Wn.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 “waytoo easy” by letting her know ahead oftime when she might be subjected to urinalysis. She contends that the trial court made this finding based on its own personal experience ratherthan any evidence in the record. But Glauseradmitted that she requested only one urinalysis shortly after opening the case, that she did not knowwhether anyone else at CPS had requested any otherdrug 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 ofdrugs and alcohol, and admitted that urinalysis did not detect any ofThiessen’s relapses. And the GAL expressed concern aboutThiessen’s pattern of conflicting statements regarding herdrug and alcohol use. On this basis, it is reasonable to inferthatThiessen’s service providers unintentionally made it easierfor herto hide any relapses. Thiessen also argues thatthe trial court erred in implicitlyfinding that placing C.W. in her care would cause actual detriment. However, at a hearing on September 9, 2019, the court clarified thatthe nonparent custody orderwas 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 transferto custody. Attorney Fees Thiessen requests attorneyfees and costs on appeal pursuantto RAP 18.1 and RCW 26.10.080. RAP 18.1 authorizes us to award reasonable attorney fees and costs ifapplicable law grants the partythe rightto recoverthem. RCW 26.10.080 provides that “[u]pon any appeal, the appellate court may, in its discretion, order a partyto payforthe costto the other party of maintaining the appeal and attorney’s fees in addition to statutory costs.” In addressing an award ofattorneyfees and costs in the trial court, the statute provides that an award may be made “after considering the financial resources ofall parties.” Both parties submitted financial declarations to this court. After considering the parties’ needs and abilityto pay, we decline to award Thiessen attorneyfees and costs on appeal. Affirmed.

WE CONCUR:

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