Opinion
No. 35401-2-II.
June 17, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 04-3-00369-5, David E. Foscue and F. Mark McCauley, JJ., entered September 22, 2006.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Leonila O.-G. and Celina G. respectively are the paternal grandmother and aunt of V.M. Carolann G., V.M.'s mother, temporarily placed V.M. in their care in 2001. Connie and Gary B. respectively are the maternal aunt and uncle of V.M. Carolann placed V.M. in their care in July 2002. Connie and Gary gained custody of V.M. in 2003. Later, Leonila and Celina unsuccessfully sought custody and visitation under third party custody and visitation statutes. Leonila and Celina appeal, seeking remand in order to amend their petition so that they may seek visitation under a different theory. We affirm.
FACTS
Victor G.-O. and Carolann are V.M.'s parents. V.M. was born in 1998. In a handwritten note dated September 11, 2001, Carolann stated, "My [child, V.M.] . . . will be in temporary care [with Leonila] until I am well. All Doctors and Physicians have my permission to treat him as needed." Clerk's Papers (CP) at 28.
On November 1, 2001, Carolann gave Leonila a second handwritten note that stated, "I Carolann . . . mother of . . . [V.M.] born [1998] . . . knowingly and willingly give Temporary Custody of [V.M.] to Celina . . . and Leonila. . . . as I need to seek help for myself, such as anger problems and sometime's [ sic] emotion problems." CP at 29. Later in 2001 or 2002, Carolann took V.M. to California, and Celina testified that she last had contact with V.M. sometime in 2001 or 2002.
In July 2002, when V.M. was four years old, Carolann placed him in the care of her brother, Gary, and his wife, Connie. Connie testified that she and Gary took V.M. into their home after Carolann told them she did not want V.M. any longer. Additionally, for approximately six months, Gary and Connie cared for V.M.'s younger half-sibling, N.A. According to Connie's testimony, Carolann never sought visitation with V.M. but only with N.A. Connie also testified that Carolann threatened her as well as V.M., resulting in a no-contact order. According to Connie, after continual conflicts with Carolann regarding N.A., she and Gary decided to contact Child Protective Services to take N.A. from them.
On December 3, 2002, Gary and Connie filed a nonparental custody petition seeking custody of V.M. On August 27, 2003, Gary and Connie gained full custody of V.M. He presently resides with Gary, Connie, and their teenage daughter.
Leonila and Celina filed a nonparental custody petition on September 14, 2004. Gary and Connie moved to dismiss the petition and, on November 22, 2004, the trial court heard Gary and Connie's motion. Two days later, the trial court issued a letter to the parties informing them that it did not find adequate cause for a full hearing regarding custody but it did grant a hearing regarding visitation. The trial court noted that Leonila, as V.M.'s grandmother, might be entitled to visitation.
On January 14, 2005, the trial court heard the visitation issue. The trial court then dismissed the petition, ruling that Leonila and Celina did not have standing to petition for visitation because V.M.'s parents had not commenced a dissolution action as required by statute.
One trial court presided over the November 22, 2004 hearing and issued the order two days later granting Leonila and Celina a hearing on visitation. A different trial court presided over all other proceedings in this matter.
On January 24, Leonila and Celina moved for reconsideration, arguing that chapter 26.10 RCW controlled, rather than chapter 26.09 RCW, and that the trial court's November 24 letter established that chapter 26.10 RCW prevailed in their case. Apparently, the trial court heard this motion on February 7, 2005.
26.10 RCW applies to nonparental custody actions.
26.09 RCW applies to dissolution actions.
The record on appeal lacks a transcript of this proceeding.
On April 7, our Supreme Court issued In the Matter of the Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005). In C.A.M.A., the court held RCW 26.09.240 unconstitutional and overturned it in its entirety. 154 Wn.2d at 69.
We refer to RCW 26.09.240 and RCW 26.10.160(3) within this opinion, although our Supreme Court has held that RCW 26.09.240 and RCW 26.10.160(3) are unconstitutional.
Leonila and Celina again moved to reconsider on September 23, and on October 3, the trial court heard brief argument. Leonila and Celina did not cite C.A.M.A. at the hearing. By this time, Victor and Carolann had begun proceedings to dissolve their marriage. As a result, Leonila and Celina believed that they now had standing to seek visitation under the provisions of chapter 26.09 RCW (dissolutions) despite our Supreme Court's C.A.M.A. decision, or chapter 26.10 RCW (nonparental actions for child custody). The trial court directed them to file a brief citing authority to clarify their issues. It is not clear from the record whether they did so.
On November 3, 2005, our Supreme Court issued In the Matter of the Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005), cert. denied, 547 U.S. 1142 (2006). In L.B., the court overturned RCW 26.10.160(3) on constitutional grounds. 155 Wn.2d at 714. It held that until the legislature amended Washington's third party visitation statutes, specifically RCW 26.09.240 and RCW 26.10.160(3), there would be no statutory basis under Washington law to seek third party visitation. L.B., 155 Wn.2d at 714-15.
That statutory section provided, "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances." RCW 26.10.160(3).
On May 30, 2006, Leonila and Celina again sought visitation, stating that V.M.'s mother and father were now divorced. On July 17, the trial court heard the motion. Leonila and Celina argued that the trial court retained authority under RCW 26.09.240 to order mediation or grant visitation. Apparently, the parties did not bring the Supreme Court's 2005 C.A.M.A. or L.B. decisions to the trial court's attention.
On September 22, the trial court dismissed Leonila and Celina's visitation claim. It found that Gary and Connie obtained nonparental custody of V.M. on August 23, 2003, and they were the most consistent parental figures in V.M.'s life. The trial court ruled that Leonila and Celina lacked standing to proceed. Leonila and Celina appeal both the initial November 24, 2004 letter denying a full hearing on custody and the September 22, 2006 dismissal based on their lack of standing to seek visitation.
ANALYSIS
Leonila and Celina's argument on appeal challenges the trial court's decision under a different theory of the case from the one they argued below. For the first time on appeal, Leonila and Celina argue that their de facto parenthood and the L.B. opinion require that we remand to the trial court for another hearing on visitation. They acknowledge that, because of cases our Supreme Court issued after the initial January 14, 2005 hearing on visitation, no current statutory scheme allows for third party visitation and they can only seek visitation under a theory of de facto parenthood. They also acknowledge that they did not raise this issue before the trial court.
We precluded Connie and Gary from submitting briefs or otherwise arguing before us due to their failure to timely file a respondent's brief.
Although Leonila and Celina also assign error to the trial court's dismissal of their petition for custody in November 2004, they provide no argument on that point and instead focus almost exclusively on the visitation issue. "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998); see RAP 10.3(a)(6). As a result, we affirm the trial court's denial of Leonila and Celina's petition for custody and address only the issue of third party visitation.
If a party does not raise an issue before the trial court, that failure generally precludes a party from raising it on appeal. RAP 2.5(a). Citing New Meadows Holding Co. v. Wash. Water Power Co., 102 Wn.2d 495, 498, 687 P.2d 212 (1984), Leonila and Celina argue that RAP 2.5(a) is permissive and "does not apply when the question raised affects the right to maintain an action." Appellant's Br. at 9. We agree that RAP 2.5(a) is permissive and that Washington law allows exceptions to the rule, but we decline to allow an exception here. See Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983) (stating that RAP 2.5(a) "afford[s] the trial court an opportunity to correct any error, thereby avoiding unnecessary appeals and retrials"); Matthias v. Lehn Fink Prods. Corp., 70 Wn.2d 541, 543, 424 P.2d 284 (1967) (reviewing court "will not consider matters not presented to the trial court, nor . . . review a case on a theory different from that in which it was presented at the trial level"); In the Matter of the Marriage of Wendy M., 92 Wn. App. 430, 434, 962 P.2d 130 (1998) (stating that decision is discretionary whether to review issue not raised to the trial court).
Leonila and Celina had opportunities to raise the issue of their de facto parentage as an avenue for visitation with V.M. before the trial court ordered dismissal, but they failed to do so. At the October 3, 2005 hearing, after C.A.M.A. had overturned RCW 26.09.240, Leonila and Celina did not alert the trial court of a change in the law. In fact, counsel told the trial court "there is no authority that overrules the RCW." RP (Oct. 3, 2005) at 75. Although the trial court directed counsel to provide briefing or authority to support a reconsideration of its decision from January 2005, there is no indication from the record before us that it received such information. And later, in July 2006, Leonila and Celina focused their argument to the trial court on the applicability of the visitation statute in light of Victor and Carolann's divorce. They made these arguments more than six months after our Supreme Court issued L.B., recognizing de facto parentage and overturning all statute-based third party visitation rights in Washington. 155 Wn.2d at 708, 714-15. Because they failed to raise the issue of de facto parentage before the trial court, RAP 2.5(a) precludes them from raising it now.
Leonila and Celina seek remand to pursue visitation under our equity powers or the common law. We note that even if we were to remand for further proceedings, we cannot discern how Leonila and Celina could establish that they qualify as de facto parents under L.B. In Washington, a de facto parent stands in legal parity with an otherwise legal parent, and recognition of de facto parent status necessarily "'authorizes [a] court to consider an award of parental rights and responsibilities . . . based on its determination of the best interest of the child.'" L.B., 155 Wn.2d at 708 (quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152. To show that one is a de facto parent requires:
(1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. In re Parentage of L.B., 121 Wn. App. at 487. In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." C.E.W., 845 A.2d at 1152.
L.B., 155 Wn.2d at 708. In addition, a de facto parent is not entitled to parental privileges, as a matter of right, but rather "only as is determined to be in the best interests of the child at the center of any such dispute." L.B., 155 Wn.2d at 709.
As evidence of de facto parenthood, Leonila and Celina point to Carolann's September 11, 2001 handwritten note granting Leonila permission to seek medical treatment for V.M. and her November 1, 2001 handwritten note in which Carolann stated that she was giving Celina and Leonila temporary custody of V.M. Additionally, they point out that V.M. lived in the same household with them in 2001.
Carolann's notes state that she placed V.M. in the custody of Leonila and Celina on a "temporary" basis; they do not indicate that she intended to foster a parent-like relationship. Further, Leonila and Celina testified that Carolann took V.M. to California either in 2001 or 2002. Celina could not recall how long V.M. was in their care. Thus, several years ago, V.M. was in their temporary custody for an unknown period of time that was, in any event, less than one year in duration.
Attorney Fees
Leonila and Celina request attorney fees and costs on appeal. As they do not prevail, we decline to award them attorney fees and costs.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Armstrong, J., Quinn-Brintnall, J., concur.