                                                                 FILED
                                                             OCTOBER 17, 2017
                                                         In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III




               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE

    In the Matter of the Custody of              )          No. 33013-3-111
                                                 )
    H.A.R.,t                                     )
                                                 )
                        Child.                   )
                                                 )
                                                 )
    PAMELA and THEODORE                          )
    SUCHLAND,                                    )
                                                 )         UNPUBLISHED OPINION
                        Appellants,              )
                                                 )
          and                                    )
                                                 )
    AMANDA MARIE SUCHLAND and                    )
    JEREMY JOHN REYNOLDS,                        )
                                                 )
                        Respondents.             )


           t To protect the privacy interests ofH.A.R., a minor, we use her initials throughout
    this opinion. General Order of Division III, In Re the Use ofInitials or Pseudonyms 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.

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       PENNELL, J. -   Theodore and Pamela Suchland appeal the dismissal of the de facto

parentage action and nonparental custody petition they filed to gain custody of their

granddaughter, H.A.R. We affirm.

                                         FACTS

       The facts are known to the parties and need not be recounted in detail. Jeremy

Reynolds and Amanda Suchland are H.A.R.'s biological parents. They have never been

married. When H.A.R. was approximately two and one-half years old, Mr. Reynolds and

Ms. Suchland separated and H.A.R. began living with her mother and her maternal

grandparents. Shortly after the 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 of his visitation rights. Not long

after visitation commenced, H.A.R. 'smother abandoned her. This left H.A.R. in the

exclusive care of her grandparents. Mr. Reynolds was not made aware of this

development.

       During this same timeframe, the Suchlands grew concerned that H.A.R. had been

physically abused. Child Protective Services became involved and the Suchlands filed a

dependency petition in January 2014, based on the mother's abandonment and Mr.



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Reynolds's alleged abuse. Mr. Reynolds denied any abuse and the dependency action

was ultimately dismissed.

       Not having found relief through the dependency, in August 2014 the Suchlands

filed a nonparental custody petition for H.A.R., later amending it to allege de facto

parentage. The court found adequate cause to proceed to trial on the nonparental custody

petition but not on the de facto parentage claim. At trial, the court heard from several

witnesses. The testimony regarding whether H.A.R. had been physically abused was

mixed. The Suchlands presented testimony suggesting H.A.R. had been abused. Mr.

Reynolds testified and denied any abuse. He also called witnesses to support his claims.

       At the end of trial, the court determined the Suchlands had not proved by a

preponderance of the evidence that Mr. Reynolds was an unfit parent or that he had

abused H.A.R. The court found several of the Suchlands' witnesses not credible. In

addition, the court did not consider photographs of H.A.R.' s bruising indicative of abuse.

Although the court found H.A.R. was happy with her grandparents and thrived in their

home, the court explained that the "best interest of the 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.




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                                       ANALYSIS

Adequate cause for de facto parentage

      The Suchlands contend the trial court should not have dismissed their de facto

parentage action because they presented evidence Mr. Reynolds fostered the Suchlands'

parent-like relationship with H.A.R. The Suchlands point to: (1) Mr. Reynolds's delay in

obtaining visitation, and (2) his nonpayment of child support. This court reviews a ruling

concerning the placement of a child for abuse of discretion. In re Parentage ofJ.A.B.,

146 Wn. App. 417,422, 191 P.3d 71 (2008).

      "[A] de facto parent stands in legal parity with an otherwise legal parent." In re

Parentage ofL.B., 155 Wn.2d 679, 708, 122 P.3d 161 (2005). A person petitioning for

de facto parentage must show the following:

      "(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."

J.A.B., 146 Wn. App. at 427 (quoting L.B., 155 Wn.2d at 708).

      The trial court properly held that the Suchlands failed to establish the first element

of de facto parentage. While Mr. Reynolds could have done more to be with H.A.R. and




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provide financial support, 1 he never abandoned his daughter. Nor is there any evidence

Mr. Reynolds consented to the Suchlands taking over the role of H.A.R. 's parents. To the

contrary, it was the efforts of Mr. 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 meet the rigorous standards required for establishing de facto parentage. Cf In re

Parentage of J.B.R., 184 Wn. App. 203, 205-07, 214, 336 P.3d 648 (2014) (father's

failure to seek relationship with daughter for more than 10 years evidenced consent to

de facto parentage).

Nonparental custody petition

       Chapter 26.10 RCW permits a third party nonparent to petition a court for custody

of a 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's rights 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'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49

(2000); In re Custody ofJ.E., 189 Wn. App. 175, 183-84, 356 P.3d 233 (2015). A court


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        While Mr. Reynolds failed to pay child support, he did provide insurance
coverage for H.A.R. The fact that the Suchlands did not want to use Mr. Reynolds's
insurance cannot be said to be his fault.

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will only grant the third party'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 detriment to the child's growth and development."' J.E., 189 Wn. App.

at 184 (internal quotation marks omitted) (quoting In re Custody ofB.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

proof in assessing their nonparental custody petition. Instead of employing a

preponderance standard, the court should have utilized the more stringent clear and

convincing standard. But this error does not benefit the Suchlands. By finding the

Suchlands failed to prove by a preponderance of the 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 of proof by clear and convincing evidence. Although the

Suchlands did present some evidence of abuse 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 of Mr. Reynolds have evidentiary support and therefore withstand scrutiny on

appeal.




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                                        CONCLUSION

          The trial court's orders dismissing the de facto parentage action and nonparental

I   custody petition are affirmed.

           A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to

    RCW 2.06.040.


                                              Pennell, J.
    WE CONCUR:




                                              Siddoway, J.




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