                                                                                                    Filed
                                                                                              Washington State
                                                                                              Court of Appeals
                                                                                               Division Two

                                                                                                 April 9, 2019
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    In the Matter of the Custody of                                      No. 50665-3-II

    P.M.S.,

                          A Minor Child.

    PAMELA SCHIMMEL and
    IRWIN SCHIMMEL,

                          Respondents,

    and

    MIA SCHIMMEL, aka MIA STANFILL and
    LARRY STANFILL,                                               UNPUBLISHED OPINION

                          Appellants.

          WORSWICK, J. — Mia Schimmel appeals several related orders that granted custody of

her daughter, PMS, to her parents, Irwin and Pamela Schimmel, and placed conditions on Mia.1

Mia argues that (1) she is constitutionally entitled to appointed counsel, (2) the trial court erred

in denying her request for an appointed counsel as an ADA (Americans with Disabilities Act of

1990) accommodation under GR33, (3) she did not receive a trial where she was presumed to be

a fit parent, (4) the trial court’s orders contain fatal procedural irregularities, and (5) the trial

court abused its discretion when it denied Mia’s request for attorney fees.




1
 We refer to PMS’s parents, Mia and Larry Stanfill, by their first names for clarity. No
disrespect is intended.
No. 50665-3-II


          We hold that the trial court did not err in ruling that Mia was not entitled to appointed

counsel and did not abuse its discretion in denying Mia’s attorney fees. However, we hold that

the trial court improperly assumed that Mia was an unfit parent during her trial, and that this

improper assumption, in addition to the compounded procedural errors, mandate a new trial.

Accordingly, we vacate all findings and conclusions regarding Mia’s fitness as a parent, reinstate

a March 2015 temporary order as it relates to Mia, and remand for a new nonparental custody

trial before a different judge. Further, we award $5,000 in attorney fees on appeal to Mia.2

                                                  FACTS

          This nonparental custody petition has been in active litigation since 2013. The

procedural history spans almost five years and includes numerous hearings, orders, and a three-

phase trial. Mia is the mother of PMS, who was born in 2010. Larry Stanfill, PMS’s father, was

incarcerated before PMS was born, and remained incarcerated throughout all proceedings

involving his parental rights.3 Mia is the daughter of Irwin and Pamela Schimmel.4 After PMS

was born, Mia would leave PMS in the care of the Schimmels for significant periods of time.

Mia suffers from pulmonary arterial hypertension. She historically struggled with drug abuse,

specifically methamphetamine. During these proceedings, Mia provided “dirty” urinalysis

(UAs) and did not follow through with court ordered drug tests. 3 Verbatim Report of



2
  Mia also argues that the trial court abused its discretion when it awarded custody of PMS to the
Schimmels, and erred by improperly applying a “best interest of the child” standard. Because we
reverse and remand on other grounds, we do not address these arguments.
3
    Larry’s parental rights are not at issue in this appeal.
4
 We refer to Irwin and Pamela Schimmel individually by their first names for clarity. No
disrespect is intended.


                                                     2
No. 50665-3-II


Proceedings (VRP) at 313. With the exception of a 15-month period, PMS resided with the

Schimmels. During the time Mia had residential custody of PMS, Mia was often late picking up

PMS from preschool and was found to have an unsafe home environment.

       In December 2012, Mia left PMS with the Schimmels. In January 2013, the Schimmels

filed a nonparental custody petition, seeking custody of PMS. In May 2013, the trial court

determined that the Schimmels had established adequate cause for hearing the petition, appointed

a guardian ad litem (GAL), ruled that primary residential custody of PMS would remain with

Mia, and allowed the Schimmels visitation.

       In August 2014, the GAL made an unannounced visit to Mia’s home. The GAL found

“dirty clothes everywhere, food which had been left out for days, and rotten food in the

refrigerator.” Clerk’s Papers (CP) at 332. Rooms were filthy, and the GAL found suspected

methamphetamine pipes with residue left out in the open. Mia admitted to the GAL that she had

relapsed on methamphetamine.

       Following the GAL’s visit, the trial court entered a temporary order granting the

Schimmels residential custody of PMS. The order also established supervised visitation for Mia

through Innovative Services Northwest, provided telephonic visits between Mia and PMS,

required Mia to submit to a substance abuse evaluation, hair or nail tests, and UAs, and

prohibited all parties from speaking to PMS about the custody dispute.

       In December 2014, the GAL issued her report, detailing Mia’s temporary custody order

violations. The report stated that Mia had failed to complete UAs, failed to provide the results of

hair/nail tests, failed to complete a substance abuse evaluation, discussed the custody

proceedings with PMS, and missed supervised visits and scheduled phone calls. The GAL also



                                                 3
No. 50665-3-II


noted that Mia was “out on bail for criminal charges consisting of Identity Theft, Trafficking

Stolen Property First Degree and Possession of Stolen Property First Degree for allegedly

pawning her mother’s jewelry.”5 CP at 25.

          In response to the GAL report, the trial court entered an amended temporary custody

order on March 6, 2015 (March 2015 order). This order continued to require Mia to undergo

random UA testing and to complete a substance abuse evaluation. It also altered Mia’s and the

Schimmels’ phone call and supervised visitation arrangements and replaced an earlier restraining

order. The trial court also set the trial date (phase one) on the Schimmels’ petition for June 29,

2015.

                I. TRIAL PHASE ONE: LARRY’S FITNESS AND THE CR2A AGREEMENT

          Phase one of the nonparental custody trial began June 29, 2015. Immediately before

phase one began, Mia and the Schimmels reached a CR2A agreement. Their agreement provided

that the Schimmels could have custody of PMS, but specifically stated that Mia was not

stipulating to being unfit. The CR2A stipulation did not include specific details, but instead,

outlined the “broad strokes” of a visitation schedule and drug testing requirements for Mia. 1

VRP at 16. Mia and the Schimmels swore to the general agreement in open court, stating that

further details would be worked out shortly thereafter. As a result, Mia and her counsel were

excused by the court, and the trial court proceeded with trial regarding only Larry’s parental

rights.




5
 As a result of this criminal case, Mia was subject to a no contact order regarding Pamela. By
November 2016, the criminal case was dismissed.



                                                 4
No. 50665-3-II


       Following the phase one trial, the trial court ruled that Larry was unfit and granted the

Schimmels’ petition for nonparental custody. The trial court entered an order containing

findings of fact and conclusions of law on August 07, 2015 (August 2015 order). Despite Mia’s

CR2A agreement that specifically stated she was making “[a]bsolutely no stipulation regarding

fitness,” the trial court found, “[a]t the beginning of the case, both parents were unfit.” 1 VRP at

8; CP at 54.

       Moreover, the trial court also made findings of fact to support limitations on Mia’s

visitation, even though Mia did not stipulate to those findings in her CR2A agreement. The trial

court found: “Willful abandonment that continues for an extended period of time or substantial

refusal to perform parenting functions. A long term impairment resulting from drug, alcohol, or

other substance abuse that interferes with the performance of parenting functions. Significant

mental health problems which affect the ability to perform parenting functions.” CP at 56. The

court order also incorporated the visitation schedule from the March 2015 order “until further

order of the court.” CP at 56. And the trial court continued a restraining order against Mia based

on the pending no contact order in the criminal case. Mia did not attend the presentment of the

August 2015 order, however, her attorney approved and signed the order.

       By October 2015, Mia and the Schimmels were unable to reach agreement on the

specifics of the CR2A agreement. Consequently, the trial court entered an order that struck the

CR2A agreement, and set a new trial date (phase two) to address the final terms of the agreed

custody order and the terms of Mia’s visitation.




                                                   5
No. 50665-3-II


                             II. TRIAL PHASE TWO: MIA’S VISITATION

        At a trial readiness hearing in May 2016, Mia moved under CR 60 to vacate the August

2015 order. Mia argued that she did not assent to the August 2015 order because she did not sign

it. Mia also argued that, because the parties had not agreed she was unfit, it was improper for the

court to make a finding that Mia was unfit. Despite that the CR2A agreement specifically

excluded a determination of fitness and that trial court had previously struck the CR2A

agreement, the court ruled that Mia’s unfitness had been agreed to by the parties. Thus, the court

denied the motion and stated that the upcoming trial was to determine Mia’s visitation rights

only.

        Phase two of the trial began June 20, 2016. Before the first witness was called, the trial

court reiterated, “[I]t appeared to me that the parties had resolved the issue of custody and,

within that, the underlying unfitness [or] actual detriment.”6 2 VRP at 183. During phase two of

the trial, the guardian ad litem (GAL) testified to Mia’s continued noncompliance with the

March 6, 2015 temporary order. According to the GAL, Mia had not provided her drug

treatment results, had two positive drug tests in 2015, discussed the custody dispute with PMS

during visitation, allowed contact between PMS and Larry, and missed visits and phone calls.

        Pamela testified to the difficulties of the visitation schedule. Mia testified, describing her

drug treatment and explaining the positive UA results were due to her weight loss medication.

She also discussed the Schimmels’ control over visitation and their noncompliance with the

visitation order by canceling or restricting visits and phone calls. Further, Theresa Spencer,



6
 We note that the only evidence of a resolution of custody in the record on appeal is the CR2A
agreement that the court previously struck.


                                                  6
No. 50665-3-II


Mia’s sister, testified that Mia showed up to one of PMS’s activities unannounced and wanted to

take her for ice cream, which the Schimmels did not allow.

       Dr. Landon Poppleton, a psychologist, conducted a psychological evaluation of Mia, and

his report was admitted at trial. Dr. Poppleton’s report concluded that Mia was on a positive

path regarding drug abuse, but the resentment and the family power dynamics required a case

manager and clear reunification plans. Dr. Poppleton also testified. He stated that much of his

information came from Mia’s self-reports, and he acknowledged that Mia had not been

forthcoming about her history of drug use, criminal activity, or mental health.

       After the close of evidence at the phase two trial, and before issuing any ruling, the trial

court sua sponte reconsidered Mia’s motion to vacate the August 2015 order. On July 6, 2016,

the court issued a written ruling and order wherein it stated that its prior decision was not

erroneous because Mia’s attorney had signed the August 2015 order, but nonetheless reversed its

decision on Mia’s fitness. In its ruling, the trial court recognized that “there was no agreement

[regarding Mia] as to unfitness or actual detriment.” CP at 81. The trial court declined to vacate

the language that related to Mia in the August 2015 order in a ruling that stated in part:

       [A]lthough the Court will make a ruling as to residential schedule, that ruling and
       any ensuing order cannot take effect unless the issue of unfitness or actual detriment
       is established. Accordingly, additional trial proceedings will be required on the
       issue of unfitness or actual detriment.
               In the trial on the fitness/detriment phase, the stipulated Decree of Custody
       and Findings of Fact and Conclusions of Law may be admitted to establish the
       existence of certain relevant facts.

CP at 81.

       Thus the trial court, in a puzzling ruling, determined it would make custody and visitation

decisions without the required factual foundation of parental unfitness, and stated that it would



                                                  7
No. 50665-3-II


make its decision regarding that foundation at a later date. Accordingly, the trial court reserved

ruling on the visitation schedule and set another trial date (phase three) to determine Mia’s

fitness as a parent.

                             III. TRIAL PHASE THREE: MIA’S FITNESS

        Phase three of the trial was scheduled to begin in October 2016. Before phase three

began, the trial court explained the case’s procedural posture. The trial court stated that phase

two and phase three were a “single trial,” but that the determination of fitness and determination

of visitation had been bifurcated. The court acknowledged that the procedure was unusual when

phase two proceeded with the visitation portion before a determination of parental fitness. The

court stated:

        We already heard testimony which assumed that [Mia was] unfit, essentially, and
        so what would the visitation be going forward, and so—so, yes, that issue of
        whether or not [Mia is] unfit has to be heard first—or rather, it should be thoroughly
        fleshed [sic] out. I didn’t think the language in the documents really closed that
        loop for me, so that’s what’s going to be heard.

4 VRP at 580.

        Shortly before phase three of the trial was set to begin, Mia was taken into custody on a

criminal arrest warrant. Phase three was continued for a month.

        Phase three of the trial explored Mia’s fitness and occurred over three days that spanned

five months, November 29, 2016 and April 17-18, 2017. Mia made a GR33 ADA

accommodation request for an appointed attorney two court days before phase three began, citing

her pulmonary arterial hypertension, and she also sought attorney fees under RCW 26.10.080.

She admitted that she received approximately $30,000 per year from a family partnership. The

trial court denied Mia’s requests, concluding that her request was untimely, her physical



                                                  8
No. 50665-3-II


condition was not a sufficient basis for an appointed attorney, and that she had sufficient

financial resources to hire counsel. Mia was not represented by counsel on the first day, but

obtained counsel for the latter two days of the trial.

       Evidence at phase three included Mia’s missed visits with PMS. She missed several

visits from January to September 2016, and did not visit with PMS in the fall and winter of 2016,

with the exception of one Christmas visit. The contract with the supervised visitation facility

was canceled for unpaid bills. However, Mia testified that she was attempting to restart

supervised visits and she was current with her visitation fees. Pamela testified to the unstable

and inconsistent relationship between PMS and Mia, discussing missed visits and calls.

       Regarding Mia’s housing, testimony showed that Mia sold her house following phase

two, and obtained new housing just before phase three. At some point when Mia was between

houses, she lived at an extended stay hotel.

       Mia’s Narcotics Anonymous sponsor testified to Mia’s commitment to sobriety, but

admitted that Mia used drugs nearly one year prior, on July 4, 2015. Dr. Poppleton testified that

he did not think Mia was fully forthcoming with the information she provided him, and he noted

a concern with her inconsistent visitation with PMS. Mia admitted that she had not followed

through with the court ordered provisions regarding UAs.

       Mia’s brother-in-law, Brian Spencer, and Pamela testified regarding Mia’s income.

Spencer managed a Schimmel family partnership in which Mia had a 25 percent stake. This

partnership paid for many of Mia’s expenses, including housing and medical costs. Further, the

partnership gave Mia a weekly cash distribution of $600. However, the coverage of Mia’s

expenses and the distributions were purely in Spencer’s or Irwin’s discretion. Pamela stated,



                                                  9
No. 50665-3-II


“We are under no obligation to give [Mia] any money either from [the partnership] or

personally.” 6 VRP at 843.

       After the close of evidence, the trial court made clear that the actual detriment test for

unfitness was not at issue. During closing argument, when Mia’s counsel suggested the

Schimmels were arguing that there would be actual detriment to PMS in Mia’s custody, the trial

court stated that its understanding was that the Schimmels were arguing only fitness and that the

evidence did not meet the high standard for actual detriment.

       After phase three of the trial, the trial court entered an order that included amended

custody findings and conclusions (June 2017 order). The trial court’s order incorporated

findings of fact from the August 2015 order. At a hearing on presentation of the final order,

Mia’s counsel questioned why the trial court was including findings and conclusions as to Mia

from the August 2015 order when the subsequent trials were to determine findings and

conclusions regarding Mia as a parent. The trial court stated:

       My intent is to incorporate any findings I’ve previously made with regard to [Mia].
                ....
       . . . That information is incorporated in my reason, and I don’t know how best to
       incorporate that. You know, I heard testimony for a few days and we ended up
       crafting a residential schedule based on that information, but I also used that
       information in my decision here on her fitness.

8 VRP at 1154 (emphasis added). The June 2017 order stated:

       At the time this case was filed:

       The child was not living with [Mia]. The child had been living with [Irwin] and
       [Pamela] since December 30, 2012 at the time of filing.

       [Mia] was not a suitable custodian.

       And,



                                                 10
No. 50665-3-II


         [Mia] is currently unfit, or, even if she may be fit, the child will suffer actual
         detriment (harm) to her growth and development if she lived with [Mia].

CP at 101. The order stated that the above conclusions were based on the following
facts:

         [Larry] was incarcerated at the time of his trial and has remained incarcerated.

         [Mia] failed to submit to random urinalysis testing on a color-line at Lifeline
         Connections as ordered by the court, signed March 6, 2015, and incorporated in the
         initial Findings of Fact and Conclusions of Law and the Decree of Non-parental
         Custody, both dated August 7, 2015; she failed to exercise visitation through
         Innovative Services NW from the end of September 2016 through her date of trial;
         she had inconsistent visitation in 2016, which led to termination of supervised
         visitation by Innovative Services NW in September 2016, which has not resumed;
         the parties were able to arrange a visit in December 2016, which was not supervised
         by ISNW; she was inconsistent in initiating telephone calls with the child as
         allowed by prior court order; she has a history of unstable housing; her recent
         criminal history resulted in bench warrants, one of which was served on her during
         a day scheduled for trial in this action; she failed to demonstrate that she is able to
         provide for the child’s basic financial needs; she also failed to work toward
         reunification; failed to parent; failed to be involved in child’s education; and also
         allowed telephone visits by [Larry] while he was in prison, in contravention of court
         order.

         The Findings and Conclusions entered by this Court on 8/7/15 are hereby
         incorporated by reference and supplemented hereby.

CP at 101 (emphasis added). The order further stated:

         The court finds that [Mia] lacks credibility and is consistent [sic][7] in her testimony.
         Further, [Mia] provided inaccurate and/or incomplete information to Dr. Poppleton.
         [Mia’s] actions and lack of actions throughout this matter show a continuing
         abandonment of the child.

         [Mia] was prohibited from attending the child’s school after arriving announced
         [sic][8] at an extra-curricular activity involving the child and attempting to take the
         child on a visit, which was outside the visits ordered by the Court. The ensuing
         disruption was harmful to the child.

7
    We assume from context that the trial court meant “inconsistent.”
8
    We assume from context the trial court meant “unannounced.”



                                                    11
No. 50665-3-II



CP at 103. In association with the order, the trial court also signed the residential schedule, the

custody order, and a restraining order.

       Thus, the trial court determined Mia to be unfit as a parent. Mia appeals the June 2017

findings and conclusions, the residential schedule, the amended final nonparental custody order,

and the restraining order.

                                            ANALYSIS

                                   I. APPOINTMENT OF COUNSEL

       Mia argues that she was entitled to appointed counsel under constitutional guarantees and

under an ADA accommodation in GR33. We disagree.

A.     There is no Constitutional Guarantee of Appointed Counsel in Nonparental Custody
       Proceedings

       Mia argues that she had a constitutional right to appointed counsel during these

proceedings. Mia asserts that she is entitled to counsel under the due process rights afforded by

the Fourteenth Amendment to the United States Constitution and article I, section 3 of the

Washington Constitution.9 We hold that Mia was not constitutionally entitled to an appointed

attorney.

       Parents have a fundamental liberty interest to bring up children, control their education,

direct their upbringing, and make decisions concerning their care, custody, and control. Troxel v.

Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Indigent parents in

termination or dependency proceedings have a due process right to appointed counsel at public


9
  In passing, Mia asserts an Equal Protection Clause violation, stating “disparate treatment of
her, as compared to parents in dependency proceedings.” Br. of Appellant at 46. Because Mia’s
Equal Protection Clause argument is inadequately argued, we decline to address it.


                                                 12
No. 50665-3-II


expense. In re Marriage of King, 162 Wn.2d 378, 383, 174 P.3d 659 (2007) (citing In re

Welfare of Luscier, 84 Wn.2d 135, 524 P.2d 906 (1974); In re Welfare of Myricks, 85 Wn.2d

252, 533 P.2d 841 (1975)). This is because such cases involve the State’s authority to

permanently sever the parent-child bond. King, 162 Wn.2d at 384-85. Conversely, in

dissolution proceedings, the parents remain parents and retain substantial rights, such that the

fundamental parental liberty interest at stake is less than those in termination or dependency.

King, 162 Wn.2d at 386.

       In King, the court held that dissolution proceedings involving a custody order were

fundamentally different from termination or dependency. 162 Wn.2d at 385. Dissolution is a

private proceeding with private parties, and the parties retain the future right to modify custody

arrangements. King, 162 Wn.2d at 385-86. While the State has a role as a judicial decision

maker in dissolution, this role is vastly different than the State as an opposing party instituting

proceedings against a parent to permanently alter their rights. King, 162 Wn.2d at 386.

Dissolution proceedings allow the state, through the judiciary, to provide statutory safeguards

against erroneous decisions and allow courts to shift expenses between parties. King, 162 Wn.2d

at 387, 395 (citing RCW 26.09.110, 140, .210, .220). The court examined the due process

requirements and held that neither the Fourteenth Amendment to the United States Constitution

nor article I, section 3 of the Washington Constitution required appointed counsel in dissolution

proceedings. King, 162 Wn.2d at 394-95.

       A nonparental custody decree is never permanent because it is subject to modification

under RCW 26.09.260(1). In re Custody of Z.C., 191 Wn. App. 674, 693, 366 P.3d 439 (2015).

       A nonparental custody order confers only a temporary and uncertain right to
       custody of the child for the present time, because the child has no suitable legal


                                                 13
No. 50665-3-II


       parent. When and if a legal parent becomes fit to care for the child, the nonparent
       has no right to continue a relationship with the child.

In re Custody of A.F.J., 179 Wn.2d 179, 186, 314 P.3d 373 (2013) (quoting In re Parentage of

J.A.B., 146 Wn. App. 417, 426, 191 P.3d 71 (2008)).

       Here, similar to dissolution proceedings, the nonparental custody proceeding is between

private parties and does not permanently alter Mia’s parental rights. Although the Schimmels

have custody of PMS, when a court determines Mia is fit to care for PMS, she will then regain

custody of her child. Further, the State, through the courts, can guard against erroneous

decisions and shift expenses among parties. See RCW 26.10.080; RCW 26.10.090. Because this

is a dispute between private parties and because the proceeding only temporarily determines the

custody of PMS, Mia’s right to due process is not violated because she was not appointed

counsel.

B.     Trial Court Properly Denied ADA Accommodation for an Appointed Attorney

       Mia argues that the trial court erred when it denied her ADA accommodation request for

an appointed attorney because of her pulmonary arterial hypertension with high blood pressure.

We disagree.10

       We review the interpretation of a court rule de novo and in the same manner as it reviews

statutes. North Coast Elec. Co. v. Signal Elec., Inc., 193 Wn. App. 566, 571, 373 P.3d 296

(2016). We give effect to the plain meaning of a rule as an expression of the drafter’s intent.

Guardado v. Guardado, 200 Wn. App. 237, 243, 402 P.3d 357 (2017). If a rule is ambiguous,

we read the rule as a whole, harmonize its provisions, and consider related rules to discern the


10
  The record on appeal does not contain Mia’s ADA accommodation request form, and the
parties’ briefs cite only to the verbatim report of proceedings.


                                                14
No. 50665-3-II


rule’s intent. Guardado, 200 Wn. App. at 243. We review the trial court’s decision to grant or

deny a GR33 accommodation request for an abuse of discretion. See Wildermuth v. Wildermuth,

14 Wn. App. 442, 446, 542 P.2d 463 (1975) (applying an abuse of discretion to the trial court’s

refusal to appoint counsel).

       GR33 governs requests for accommodation by persons with disabilities and provides

“measures to make each court service, program, or activity, when viewed in its entirety, readily

accessible to and usable by a person with a disability.” GR33(a)(1). This includes, “otherwise

unrepresented parties to the proceedings, representation by counsel, as appropriate or necessary

to making each service, program, or activity . . . readily accessible to and usable by a person with

a disability.” GR33(a)(1)(C). A court may deny a request for accommodation if the requesting

party “failed to satisfy the substantive requirements of this rule.” GR33(c)(2)(A).

       Viewing GR33’s plain meaning, it is clear that the language “as appropriate or necessary

to [make] each [proceeding] readily accessible to and usable by a person with a disability”

modifies “representation by counsel.” As a result, appointed counsel can be an accommodation

when it is appropriate or necessary for disabled litigant’s access to or use of the proceedings. In

other words, the disability must inhibit an unrepresented litigant’s access to or use of the courts

in such a way that requires the appointment of counsel. Thus, the plain meaning of the rule is to

appoint an attorney when the disabled litigant cannot readily access or use the courts without

counsel because of their disability.

       Here, the court administrator received Mia’s ADA accommodation request two court

days before the beginning of phase three of the trial. In denying the request, the trial court stated

that it was “untimely” and that the request did not “provide a sufficient basis for providing an



                                                 15
No. 50665-3-II


attorney as an accommodation under the ADA.” 5 VRP at 589. The trial court concluded that

there is no basis for an attorney as an accommodation for pulmonary arterial hypertension with

high blood pressure and its effects. The trial court further stated its belief that Mia’s request was

an attempt to delay the proceedings.

        The trial court, after considering Mia’s request, determined that her disability did not

impair her in such a way that she would be unable to access or participate in the proceedings. It

stated that “pulmonary arterial hypertension with severe blood pressure and the medical fallout

of that . . . wouldn’t be a basis for an attorney to accommodate that illness.” 5 VRP at 589.

Therefore, an appointed counsel accommodation was not required under GR33. We agree with

the trial court’s analysis.

        Regardless of its timeliness, because Mia’s disability did not interfere with her ability to

access the proceedings, the trial court did not abuse its discretion when it denied Mia’s ADA

accommodation request. Accordingly, Mia was not entitled to an appointed attorney in these

proceedings.

                              II. NONPARENTAL CUSTODY PROCEEDINGS

        Mia argues that the trial court did not properly presume her fitness and that the trial court

abused its discretion because the Schimmels failed to prove Mia was unfit to parent or that PMS

would suffer actual detriment in Mia’s custody. Mia further argues that we should vacate the

trial court’s August 2015 order and June 2017 order because of the procedural irregularities of

these proceedings, and remand her case to a different judge. We hold because of a premature

finding of unfitness, the trial court improperly assumed that Mia was an unfit parent during her

trial, and that this improper assumption, in addition to the compounded procedural errors,



                                                 16
No. 50665-3-II


mandate a new trial. Accordingly, we vacate all findings and conclusions regarding Mia’s

fitness as a parent, reinstate the March 2015 order as it relates to Mia, and remand for a new

nonparental custody trial before a different judge.

A.     Legal Principles

       We review a trial court’s custody decision for a manifest abuse of discretion. In re

Custody of C.D., 188 Wn. App. 817, 826, 356 P.3d 211 (2015). A trial court abuses its

discretion when its decision is manifestly unreasonable or based on untenable grounds or

reasons. In re Custody of L.M.S., 187 Wn.2d 567, 574, 387 P.3d 707 (2017). We review de

novo whether the findings of fact support the conclusions of law. In re Marriage of Rockwell,

141 Wn. App. 235, 242, 170 P.3d 572 (2007); In re Marriage of Chua, 149 Wn. App. 147, 154,

202 P.3d 367 (2009). We do not review credibility determinations or weigh evidence on appeal.

In re Marriage of Fahey, 164 Wn. App. 42, 62, 262 P.3d 128 (2011).

       Because parents are constitutionally entitled to deference in child custody disputes

against nonparents, a court may award custody to the nonparent only if the parent is unfit or if

placing the child with the parent would result in actual detriment to the child. In re Custody of

Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006). The nonparental party bears the substantial

burden of showing the parent’s current unfitness or actual detriment to the child. Shields, 157

Wn.2d at 142; Z.C., 191 Wn. App. at 700.11




11
   The evidentiary standard for determining unfitness is unsettled. Compare A.L.D., 191 Wn.
App. at 501 (applying a clear, cogent, and convincing evidentiary standard), and Z.C., 191 Wn.
App. at 701 n.8 (applying a clear and convincing evidentiary standard), with In re Custody of
S.H.B., 118 Wn. App. 71, 83, 74 P.3d 674 (2003) (applying a preponderance of the evidence
standard). However, we need not determine the evidentiary standard to resolve this case.


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       A parent is unfit if she cannot meet a child’s basic needs. L.M.S., 187 Wn.2d at 576. For

example, unfitness can include the parent’s fault or omission seriously affecting the welfare of

the child, the child facing physical harm, illness, or death, or the child being deprived of their

right to education. Shields, 157 Wn.2d at 142-43. A court determines a parent’s fitness by her

present condition, not past conduct. In re Custody of A.L.D., 191 Wn. App. 474, 506, 363 P.3d

604 (2015). A parent’s past conduct alone cannot establish current unfitness. In re Dependency

of Brown, 149 Wn.2d 836, 841, 72 P.3d 757 (2003).

       In extraordinary circumstances, a nonparent may be awarded custody upon a showing

that the placement of the child with an otherwise fit parent would be detrimental to the child.

Shields, 157 Wn.2d at 145. The actual detriment standard requires a showing that the child’s

growth and development would be detrimentally affected by placing the child with the parent. In

re Custody of J.E., 189 Wn. App. 175, 185, 356 P.3d 233 (2015). Such an inquiry is highly fact

specific and requires a case-by-case determination. L.M.S., 187 Wn.2d at 576. A nonparent’s

ability to provide a superior home environment compared to the parent’s is not enough to

establish actual detriment. J.E., 189 Wn. App. at 185.

B.     Mia Had a Trial Where She was Presumed Unfit

       Mia argues that she was not afforded a trial where she was presumed fit. We hold that

the trial court erred when it presumed Mia was unfit during the course of the trial.

       Parents are constitutionally entitled to deference in child custody disputes against

nonparents. Shields, 157 Wn.2d at 142. The nonparental party bears the substantial burden of

showing the parent’s unfitness. Shields, 157 Wn.2d at 142.




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        Here, the trial court stated that phase two and phase three were a single, yet bifurcated,

trial determining Mia’s fitness and her visitation rights. Because phase three was a continuation

of phase two, the court determined that previously admitted evidence from phase two would be

considered admitted for phase three.

        Before the first witness was called for phase two, the trial court stated, “[I]t appeared to

me that the parties had resolved the issue of custody, and within that, the underlying unfitness

[or] actual detriment.” 2 VRP at 183. The attorneys presented evidence after the trial court

made clear that it was presuming that Mia was unfit. But then, at the conclusion of phase two,

the trial court recognized that “there was no agreement [regarding Mia] as to unfitness or actual

detriment.” CP at 81.

        Preparing for phase three, the court stated, “We already heard testimony which assumed

that [Mia was] unfit, essentially, and [phase two determined] what would the visitation be going

forward.” 4 VRP at 580. Phase three then presumably was aimed at determining Mia’s fitness

to parent. At a hearing finalizing the final orders after phase three, the trial court stated that, “I

heard testimony for a few days and we ended up crafting a [visitation] schedule based on that

information, but I also used that information [from phase one] in my decision here on fitness.” 8

VRP at 1154 (emphasis added).

        The trial court presumed Mia was unfit for her nonparental custody trial. The attorneys

presented, and the trial court admitted, evidence at phase two under the incorrect presumption

that Mia was unfit. The trial court, as the fact finder, carried over phase two evidence into phase

three to address Mia’s fitness and used this evidence in the determination of her fitness. This

presumption of unfitness shaped the entire phase two proceedings, including the witnesses



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called, evidence presented, and the determinations constituting the ultimate visitation schedule.

This was clear error.

       Further, the trial court used evidence from phase one, a trial at which Mia was not

present, in its ultimate conclusion of unfitness at phase three. These compounding errors tainted

the entire process.

       Additionally, we find problematic the amount of time it took for these proceedings to

conclude. Mia was entitled to a determination of her current fitness. See A.L.D., 191 Wn. App.

at 506. According to the trial court’s reckoning, the nonparental trial began June 29, 2015, and

concluded April 17, 2017. The trial court incorporated findings into its final order from

proceedings spanning almost two years. Because these proceedings took so long to resolve, we

are not confident that the trial court’s determination was based on Mia’s current fitness, as

opposed to her past conduct.

       Accordingly, we vacate all findings and conclusions regarding Mia in the August 7, 2015

and June 28, 2017 orders, and remand to the trial court for a new trial on the nonparental custody

petition. We urge the trial court to swiftly commence proceedings to resolve this years-old

petition. Until the new trial occurs, we reinstate the March 2015 temporary visitation order.

                         III. TRIAL COURT’S DENIAL OF ATTORNEY FEES

       Mia argues that the trial court abused its discretion when it determined she had an ability

to pay her attorney fees. We hold that the trial court did not abuse its discretion by denying

attorney fees.

       We review de novo whether there is a legal basis to award attorney fees. Gander v.

Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012). We review a trial court’s discretionary



                                                20
No. 50665-3-II


award of attorney fees for an abuse of discretion. In re Marriage of Obaidi, 154 Wn. App. 609,

617, 226 P.3d 787 (2010). RCW 26.10.080 states: “The court from time to time, after

considering the financial resources of all parties, may order a party to pay a reasonable amount

for the cost to the other party of maintaining or defending any proceeding under this chapter and

for reasonable attorney’s fees . . . .”

          Here, it is undisputed that the trial court had authority to award attorney fees. In

determining whether to award attorney fees, the trial court weighed the financial resources of all

parties. The unique financial situation of the Schimmels and Mia was testified to extensively,

providing the trial court with an understanding of the family finances and Mia’s income through

the family business partnership distributions. The trial court cited her income to conclude that

she could afford to hire an attorney. Because the evidence supports the trial court’s decision that

Mia had the ability to hire an attorney, we hold that the trial court’s decision denying attorney

fees was not an abuse of discretion.

                                    IV. ATTORNEY FEES ON APPEAL

          Mia seeks attorney fees on appeal under RAP 18.1 and RCW 26.10.080. RAP 18.1(a)

allows this court to award reasonable attorney fees and costs on appeal if applicable law grants

the party the right to recover them. RAP 18.1(c) states that, if the underlying statute requires

consideration of financial resources, the requesting party must file an affidavit of financial

need.12 RCW 26.10.080 requires a consideration of financial resources and 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.” We must


12
     Mia filed the necessary affidavit of financial need with this court.


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No. 50665-3-II


balance the needs of the party requesting fees against the other party’s ability to pay. In re

Custody of B.M.H., 179 Wn.2d, 224, 245, 315 P.3d 470 (2013).

        We consider the financial resources of the parties, balance Mia’s financial need with the

Schimmels’ ability to pay, and award Mia appellate attorney fees in the amount of $5,000.

                                          CONCLUSION

        In conclusion, we vacate all findings and conclusions regarding Mia’s fitness as a parent,

and we remand to a different judge for a new trial on the nonparental custody petition. Further,

we reinstate the March 2015 order governing visitation. We reverse and remand for further

proceedings before a different judge.

        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 in accordance with RCW

2.06.040, it is so ordered.




                                                                       Worswick, J.
 We concur:



 Maxa, C.J.




 Glasgow, J.




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