                                                                           FILED
                                                                  JANUARY 24, 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 RE THE MATTER OF THE                      )
CUSTODY OF                                   )        No. 33652-2-111
                                             )
S.S. and L.S.,                               )
                                             )
B.S.                                         )
                                             )        UNPUBLISHED, OPINION
                    Appellant,               )
                                             )
        and                                  )
                                             )
R.S.,                                        )
                                             )
                    Respondent.              )

        FEARING, C.J. -This appeal concerns custody of two children, Steven and

Leander Starr. Appellant Betty Bartholomew is the maternal grandmother of Steven and

Leander. Richard Starr is the children's father. Pursuant to Washington's nonparental

custody act, Bartholomew sought custody of the two young children. After the case

lingered for one and one-half years, the trial court granted Richard Starr's summary

judgment motion and dismissed the action. We affirm the trial court's grant of summary
No. 33652-2-111
In re Custody ofS.S. and L.S.


judgment. Although Betty Bartholomew objects on appeal to the use of a summary

judgment motion as a tool in disposing of a nonparental custody action, she raised no

such objection below. In response to the summary judgment motion, Bartholomew

presented no admissible facts that Starr was currently an unfit father.

                                          FACTS

       The parties doggedly dispute the facts and clash over what facts this reviewing

court may consider on appeal. Therefore, we delicately outline pertinent facts. The

case's procedural outline looms as important as the underlying facts. All names in this

opinion are fictitious.

       Angie Bartholomew and Richard Starr, who married in 2008, begat two children,

Steven and Leander. Angie suffers from bipolar disorder and claims she suffers

posttraumatic stress as a result of Starr's domestic violence. Starr received full custody

of the two children in the divorce decree entered October 9, 2013. The mother

denounced any visitation rights with the children. During the following weeks, the two

minors and Richard Starr lived with Starr's aunt, Susan Blythe, in a small apartment in

Yakima.

       At an unknown date, Richard Starr bit his niece after the niece bit Steven. Law

enforcement arrested Starr for the assault on October 28, 2013. Starr indicated his

bonding company sought the arrest because of a mistake concerning whether he missed a

preliminary hearing. After the arrest, Susan Blythe called police and asked that

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authorities assume custody of Steven and Leander in part because Steven had assaulted

the aunt. Child Protective Services (CPS) assumed custody of the two children, placed

them in temporary foster care, and contacted Betty Bartholomew, the children's maternal

grandmother, to undertake care of the children. CPS advised Bartholomew, who resides

in Bellingham, to file a nonparental custody petition.

       In her appeal brief, Betty Bartholomew writes that Richard Starr did not provide

reliable and adequate housing for Steven and Leander at the time CPS took the children

into protective custody on October 29, 2013. She bases this fact on a CPS report and

Richard Starr's declaration. The CPS report read:

               Father [Richard Starr] failed to provide adequate food, shelter and
       supervision necessary for the children [Leander and Steven Starr's] health,
       welfare and safety prior to his incarceration.
               The [department]. received info the father was out on bail for an
       Assault 4 charge. His bail was revoked and he was arrested. At the time,
       father was residing w[ith] his elderly mother who was unable to care for his
       children ages 1 & 4 who remained in her care as a result of his arrest.
               The [paternal grandmother] contacted [law enforcement] and
       informed them she could not care for the children because she had no food,
       her health was bad and the 4 [year] old child had assaulted her. Father's
       sister attempted to pick up the children however her paramour was on
       active Fed[eral] probation. The children's mother [Angie Bartholomew]
       resides in Ferndale, WA.

Clerk's Papers (CP) at 598. Richard Starr's declaration read, in part, that, upon his arrest,

he had arranged for the care of his children with his aunt. The aunt maintained sufficient

food and held emergency contact information for the children. Starr was in jail until

October 30. He went to CPS on October 31 and sought the return of his children.

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                                      PROCEDURE

       This appeal faced a lengthy and complicated process before the superior court.

The parties even dispute the nature of some of the proceedings and what occurred during

the proceedings. A reasoned resolution of the appeal requires a long outline of the trial

court process.

       On October 31, 2013, Betty Bartholomew filed a nonparental custody petition to

gain custody of Steven and Leander. The two children were then respectively four and

one and one-half years of age. In the petition, Bartholomew alleged that Richard Starr's

visitation with his two children should be limited due to "[w ]illful abandonment that

continues for an extended period of time or substantial refusal to perform parenting

functions." CP at 10. Under section 1.13, titled adequate cause, Bartholomew wrote

"[t]he children are [sic] not been in the physical custody of either parent since October

29, 2013." CP at 11. The children's mother, Angie Bartholomew, did not contest the

nonparental custody action.

       With her petition for nonparental custody, Betty Bartholomew filed a declaration.

In the declaration Bartholomew averred: "I was told that the children's father was in

police custody and his bond and [sic] been revoked." CP at 13. Handwritten after that

sentence, Bartholomew added "but got out 10/30." CP at 13. The declaration also

indicated CPS told Bartholomew "that if no one came forward to seek custody of the

children that they would become wards of the state." CP at 13.

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       On October 31, 2013, the trial court conducted a hearing, without notice to

Richard Starr, on Betty Bartholomew's application for a temporary restraining order and

order to show cause. The application sought immediate custody of Steven and Leander

for Bartholomew. During the October 31 hearing, Bartholomew's attorney informed the

court that Richard Starr left jail by posting bond and that Starr claimed to be an enrolled

member of the Cherokee Nation. Counsel added that, during Angie Bartholomew and

Richard Starr's dissolution action, Starr did not claim Native American heritage. Counsel

contended Steven and Leander were not Native American.

       During the October 31 hearing, the trial court entered no finding regarding

Richard Starr's fitness as a parent or whether adequate cause existed to take custody of

Steven and Leander from him. The trial court commented: "so dad's in jail and mom is

not capable at this point, right?" Report of Proceedings (RP) (Oct. 31, 2013) at 4-5.

Betty Bartholomew's husband replied: "Yeah, dad bonded out yesterday." RP (Oct. 31,

2013) at 5. The trial court then granted an ex parte restraining order that prevented Starr

from contact with Betty Bartholomew, Steven and Leander and granting Bartholomew

temporary custody of the two children. The trial court also scheduled a hearing for

November 14, 2013, and directed Richard Starr to show cause on that date as to whether

the temporary restraining order should remain in effect during the pendency of the

nonparental custody action.




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       At the November 14, 2013 hearing, Betty Bartholomew asked for a continuance of

the show cause hearing because of the unavailability of her counsel. Richard Starr, who

appeared at the hearing, did not object to a continuance, but objected to continuance of

the restraining order. He repeatedly argued a lack of justification for the restraining

order. The trial court granted a continuance of the show cause hearing until December 4,

2013, and renewed the restraining order.

       At the December 4, 2013 show cause hearing, Betty Bartholomew requested

another continuance. The trial court granted the continuance until December 19, 2013,

but lifted the restraining order to the extent of permitting telephone calls and supervised

physical visitation between Richard Starr and his two children. On December 19, 2013,

Starr requested a continuance of the show cause hearing because an attorney declined to

assist him and he had not enjoyed the opportunity to review Betty Bartholomew's and her

husband's declarations. The court granted a continuance until January 9, 2014.

       Before the January 9 hearing, Betty Bartholomew filed, with the superior court,

CPS confidential summary reports concerning Steven, Leander and their parents. A

cover sheet, signed by Bartholomew's counsel, accompanied the CPS reports and

requested that the reports be filed under seal. Bartholomew also filed a criminal history

of Richard Starr accompanied by a cover sheet requesting the history be sealed. Finally,

Bartholomew filed the Yakima Police Department report describing Richard Starr's bite

of another child and a cover sheet requesting sealing of the report.

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       The trial court conducted a show cause hearing on January 9, 2014. Steven was

then age five and Leander age two. Betty Bartholomew characterizes the January 9

hearing as an adequate cause hearing pursuant to RCW 26.10.032(2). The term

"adequate cause" was not spoken during the hearing. Instead Betty Bartholomew's trial

court counsel referenced a motion for temporary orders.

       The January 9 hearing began with the following colloquy:

              [COURT COMMISSIONER]: All right, go ahead. This is Ms.
       [Bartholomew's] motion. It looks like it's a Motion for Show Cause,
       Restraining and Temporary Orders. Is that correct?
              MS. REMY [BETTY BARTHOLOMEW COUNSEL]: Yes, that's
       correct, Your Honor ....
              On the fourth of December we filed a motion for temporary orders.
       The petitioner is asking that the court grant the visitation detailed in the
       proposed residential schedule, which is primarily at the discretion of [Betty
       Bartholomew], which grants visitation for the Respondent [Angie
       Bartholomew] at the discretion of [Betty Bartholomew], which orders child
       support as determined pursuant to the Washington State Child Support
       Statutes, which restrains or enjoins [Richard Starr] from disturbing the
       peace of [Betty Bartholomew] or any of the children and which restrains
       him from going onto the grounds or entering the workplace or the school of
       the other parties, the daycare or the school of [Steven] or [Leander].

RP (Jan. 9, 2014) at 3-4. The trial court then discussed with the parties whether they

needed to give notice to the Cherokee Nation, and, if so, whether notice was given. After

this discussion, the court commented:

              [COURT COMMISSIONER]: All right. Well, we can go forward
       with the hearing today. Obviously it's in the best interest of the children to
       have some resolution. So go ahead.

RP (Jan. 9, 2014) at 6.

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       During the hearing, Betty Bartholomew acknowledged that Steven and Leander

are descendants of the Cherokee Nation. Betty Bartholomew's counsel remarked about

Richard Starr:

              Mr. [Starr] has had some criminal history and some CPS
       involvement, most recently it was a founded finding for abuse. And he was
       also incarcerated.
              And because he was incarcerated, the home that he left the children
       in was found to be unfit, and so CPS intervened and put the children in
       protective custody, and that's where my client became involved to the
       extent that the children are now with her .

              . . . As far as we're concerned, Mr. [Starr] is an unfit parent. He has
       been determined unfit by the Department [of Social and Health Services],
       and the best place for these children, the best interest of the children, are to
       be with the maternal grandparents, or grandparent.

RP (Jan. 9, 2014) at 6-7.

       In response, Richard Starr commented:

             They try to say that the Department has found me unfit. No, they
       have not. All they did was took my children and place them in a situation
       because I wasn't there. But I got out and came back.

              ... I was trying to do the best I can. I'm not unfit. I hit a rough
       spot. I'm trying to get on my feet. And I'm tired of fighting with the
       grandparents over my children.

RP (Jan. 9, 2014) at 12-13.

       During the January 9, 2014, hearing, the trial court remarked that the issue before

the court was whether Richard Starr was currently unfit as a parent. Nevertheless, the

court stated:


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               [COURT COMMISSIONER]: Well, we've got a couple things
       going on. One, we've got Native American children, so we've got to get
       the tribe involved somehow. There's some difference of opinion about
       whether or not you're fit, Mr. [Starr]. There is enough information in the
       court file to lead the court to believe that you have hit a rough patch, that
       you have an unstable living situation for your children-
               MR. SKAGGS: I'll admit that.

               [COMMISSIONER]: ... You're currently-at least you were
       unemployed, you were homeless. You've got some criminal past. I'm not
       relying heavily on that. But there is a CPS-there is a founded finding in
       CPS.
               There's also a pending criminal charge that you bit a child, and so
       the court takes that very seriously.
               So at this point I'm going to grant the request of Ms. [Bartholomew],
       but I'm also going to appoint the family court investigator, if she has not
       been appointed yet, because I think we need to have some research into the
       background, an investigation about what is in the best interest of the
       children and whether or not you are truly an unfit parent or whether or not
       return to your care would be detrimental to the children.
               So I'm going to sign an order to that effect as well today.

RP (Jan. 9, 2014) at 14-15. T4e trial court did not expressly declare Richard Starr to be

an unfit parent.

       Following the show cause hearing on January 9, the trial court entered a

handwritten order captioned: "Temporary Orders." CP at 224. The order read:

               [I]t is hereby ordered that [Betty Bartholomew] remains the
       children's custodian and [the] children shall continue to reside with her.
       The court finds that the children are Indian and notice of this hearing was
       given to the Cherokee Tribe by Petitioner. The court finds [Richard Starr]
       to be currently unable to safely care for his children. He shall have 2
       telephonic visits with the children per week, 7 p.m., Tuesday and Thursday.
       In lieu of 1 telephonic visit, father may travel to Bellingham to visit the
       children in person for 2 hours, 1 time per week, supervised by a paid
       supervisor paid for by the father or supervisor approved by [Betty

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       Bartholomew], at a date, time, and location to be agreed to in advance by
       the parties. All travel expenses shall be borne by the father.

CP at 224-25 (capitalization omitted). No language in the order expressly declared that

the court found adequate cause for the nonparental custody petition. Instead, the trial

court found Richard Starr to be "currently unable to safely care for his children."

Bartholomew contends the order labeled Starr as an "unsuitable" father. The order did

not include the word "unsuitable." On January 9, the court signed a separate order

appointing a family court investigator to investigate and prepare a report regarding

primary placement of the children and alternate residential provisions.

       On May 6, 2014, Family Court Investigator Christina Eldridge filed her

investigator's report. The report recommended that custody remain with Betty

Bartholomew on condition that Bartholomew locate a licensed family therapist to

evaluate Steven. The report read, in part:

             While I have no doubt the father loves his children, it is difficult to
      ascertain his ability to effectively parent these children. I am concerned he
      may still have difficulty controlling his anger, and he appears to have
      difficulty maintaining a steady job and stable housing. He stated he would
      like "90 days" to get on his feet and obtain housing and then would like the
      children placed in his care. The fact that this investigator was unable to
      interview the children or the mother made it more difficult to obtain an
      accurate picture of what the children were exposed to, and whether or not
      they are fearful of their father. It would be helpful for a therapist to assess
      [Steven] and provide more detailed information for the court. The father is
      currently employed and is working out of town at this time. He stated he
      would like to see the children when he has enough money to travel to
      Bellingham. The grandparents appear to be appropriate and loving, and
      have enrolled the children in preschool and other activities. The teacher

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       reported they are thriving. I would recommend the children remain with
       the grandparents at this time. I would recommend the father obtain a
       professional visitation supervisor in Whatcom County and begin visiting
       the children. The father may indeed be a fit parent, but at this point in time
       there is not enough information to ensure the safety of the children if they
       were to be placed in his care.

CP at 237. The report did not disclose that Eldridge sent a copy to Richard Starr.

       Richard Starr did not seek to visit his children between January 9, 2014 and June

25, 2015. He claims he could not afford travel expenses to Bellingham. The trial court

did not entertain any substantive hearing from January 2014 until June 25, 2015. The

superior court administrator first scheduled trial for March 17, 2015, but later postponed

trial until June 29, 2015.

       In April 2015, Richard Starr filed a motion to dismiss that the trial court

considered to be a summary judgment motion. The court struck the motion because Starr

failed to conform to state and local rules for filing and scheduling a summary judgment

motion.

       Richard Starr later filed a summary judgment motion, by which he argued that no

facts supported a finding that he was an unfit parent. In opposition to the motion, Betty

Bartholomew filed, under seal, the family court investigator's report and individual

educational plans prepared by Steven's school for Steven. Bartholomew also filed a

declaration of herself and many acquaintances who averred that she properly cared for

the two children. In a memorandum in response to the summary judgment motion,


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Bartholomew argued that no facts supported Starr's summary judgment motion. She did

not argue that the court should strike the motion because of an earlier adequate cause

finding or because a party may not bring a summary judgment motion in a nonparental

custody action.

      On June 3, 2015, the trial court entertained Betty Bartholomew's motion to

postpone the summary judgment hearing. The trial court granted a continuance for three

weeks. During the continuance hearing, the trial court questioned Bartholomew's

counsel as to whether the trial court had conducted an adequate cause hearing. The

following colloquy occurred:

             THE COURT: Okay. I have-I'm curious about a couple things.
      Mr. [Starr] raises a couple points. He raises the question of whether-why
      hasn't there ever been an adequate cause hearing. And I looked through
      and I didn't find that there had ever been an adequate cause finding. Can
      you address that?
             MS. REMY [Betty Bartholomew trial counsel]: Mr. [Starr] was in
      custody when my client was awarded ex parte emergency custody of the
      children.

              MS. REMY: And so I think that was found and sufficiently covered
       many weeks ago.
              THE COURT: No, there's no order-there's no indication that there
       was ever an adequate cause hearing that I could find. Now, maybe I missed
       it.
              MS. REMY: Okay.
              THE COURT: But I looked because Mr. [Starr] raised the issue in
       his pleading and I did not find there had been any finding.
              MS. REMY: Well, if that's an issue, we can address that on proper
       motion before the Court on the 29th.
              THE COURT: Okay. Well, wait a minute.



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             MS. REMY: Today, Your Honor, we're here on a motion for
      continuance.
             THE COURT: I understand, I understand. I'm just curious to know
      whether or not there was a reason for why there wasn't an adequate cause
      hearing, and it was an oversight or-okay.

             THE COURT: The other issue that I saw was that I did not see
      anything indicating that the tribes had been notified.

             MS. REMY: They have.

              THE COURT: Okay, the last question I had asked Ms. Remy was
      whether or not the tribes had been notified. Again, I didn't see anything in
      the file to indicate that they had.
              MS. REMY: For today's hearing, Your Honor?
              THE COURT: No, for this petition, for this case.
              MS. REMY: Yes, they have been notified. Again, Your Honor,
      that's not something that's before the Court today. I am simply asking for a
      motion to continue a summary judgment.
              THE COURT: I know, but what I'm saying, Ms. Remy, is you need
      to make sure it's in the record.
              MS. REMY: Yes.

              THE COURT: You know there doesn't seem to make a whole lot of
      sense in pushing this down the road a little bit if the trial is set for the 29th.
      I guess my only concern is what happens if we get to the 29th and there
      isn't a judge available, or whatever, and then suddenly the case gets
      bumped again. So, we'll set it for the 25th at 2:30, and Ms. Remy, you're
      response must be filed by the 18th.
              MS. REMY: Thank you, Your Honor.
              THE COURT: And I want-also I'm going to require that your
      response include a motion for finding adequate cause and it seems to me
      the adequate cause we're going to have to talk about is adequate cause now,
      not what the adequate cause may have been in 2013 because we are at now
      now.
              MS. REMY: If adequate cause has not been found previously.
               THE COURT: If it's not been found-and I did not find any order
      indicating adequate cause, but again, maybe I missed it. I'm also going to


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      require that you file proof of notification to the-I think there's more than
      one tribe involved, isn't there?
              MR. [STARR]: No,just my tribe.
              THE COURT: Okay. Then I'm going to require that you file proof
      that the tribe has been notified and assuming they have responded, you
      need to file the response also. So I will do an order to that effect.

RP (June 3, 2015) at 28-33.

      On June 16, 2015, Betty Bartholomew filed a declaration that stated, in part:

              As the trial for [Steven and Leander Starr] approaches I wanted to
      provide the court with an update on how the children are doing.
              [Steven] has been placed on an Individual Educational Plan (IEP) for
      his behavioral issues at school which the school is obviously not qualified
      to diagnose, but describe to me as being consistent with other children
      having an emotional behavior disability. He has also been acknowledged
      as highly intelligent and there is a good possibility that ifwe can get his
      behavior under control he will be admitted to a full time gifted program that
      the school district offers. His reading skill is at the 97 [percent] level and
      his math is also far above average. Everyone agrees that he will go far ifhe
      can get a handle on his behavioral issues. A copy of the IEP has been filed
      separately under seal. Ann Spitze is the special education teacher and is,
      overall, the person responsible for [Steven's] IEP.
              [Steven] requires the following special accommodations at this time:
              1. [Steven] cannot ride the school bus. He must be driven to and
      from school daily.
              2. He has a special diet which involves absolutely no processed
      sugar or quick acting carbs (such as white flour). His diet is very high in
      protein. School lunches (like the free and reduced program) do not work.
              3. He is receiving compression therapy which involves special
      "heavy blankets," compression vests and under armor. These are
      expensive, not covered by insurance and must be repurchased regularly as
      he grows.
              4. During the school year [Steven] is being given occupational
      therapy by the school, but in the summer he will need regular (possibly
      daily) therapy that the school is arranging but insurance and the family will
      have to pay for it. Transportation to and from are also family
      responsibility.

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              5. [Steven] attends weekly counseling visits one on one with a
      children's therapist. Insurance and a $30 co-pay per visit are required. I do
      not believe the service is available with state insurance. He also must be
      transported to these visits.
              6. [Steven's] eye sight requires glasses. He has one very weak eye
      and one stronger one. He must return to the optometrist regularly to have
      his vision monitored. We have been told that he may need to wear an eye
      patch if the vision doesn't self-correct soon.
              7. The school is also strongly recommending regular visits to a
      pediatrician to work on getting a diagnosis and monitor him. Again, more
      transportation and expense.
              [Leander] is struggling with potty training and says things about
      daddy's being mean. Finding someone to see a child under 3 is proving to
      be impossible. Her birthday is in March and we intend to pursue therapy
      once the birthday has occurred. She is also very bright and attends a couple
      of district sponsored pre-schools a week.

              The children seem to be very attached to the four individuals in their
      daily life, me, Vernon, their mother and step-father. It is always a struggle
      to get the children to speak to their father on the phone and [Steven] in
      particular has to be almost forced to get on the phone to at least tell his
      father hello and that he doesn't want to speak with him.
              [Richard] has not exercised his ability to have an in-person visit. He
      has not seen the children in almost a year and a half since they came to live
      with us. He has not so much as sent them a card or wished them happy
      birthday or Merry Christmas in that time either.
              The phone "visitation" is stressful for the kids and I believe that if
      they needed to go with [Richard], even for a few hours it would be
      traumatic for them. I am also afraid that if [Richard] gets the opportunity
      he will take off with the children.

CP at 394-96.

      During the summary judgment motion hearing on June 25, 2015, the trial court

again asked whether any judge had previously found adequate cause for nonparental

custody. Betty Bartholomew's counsel did not directly answer the question.


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               THE COURT: Okay. The second issue we discussed last time was
       whether or not there had ever been a finding of adequate cause. Ms. Remy,
       you've had the chance now to go back through the file, have you
       determined whether or not there was ever a finding of adequate cause?
               MS. REMY: Your Honor, I don't believe that adequate cause is
       necessary in a non-parental custody petition.
               THE COURT: Alright.
               MS. REMY: This was a new petition. This was not done under a
       previous Parenting Plan or this was not a modification, Your Honor. This
       was an initial non-parental custody petition that I filed on behalf of my
       client, the maternal grandmother a year and a half ago.

RP (June 25, 2015) at 37. During argument, Betty Bartholomew never suggested that the

court had earlier entered an adequate cause finding.

       During summary judgment oral argument, Betty Bartholomew requested that the

trial court consider the recently filed individual educational plans as well as the earlier

filed CPS summary reports, Starr's criminal history, and the police report regarding the

biting incident. The trial court declined to consider the reports and plans because of their

hearsay nature. Repeatedly the trial court asked Bartholomew if she had any declarations

or affidavits, signed by someone with personal knowledge, to support her claim that Starr

was an unfit parent.

               THE COURT: Alright. The other issue here is what the moving
       party is ultimately going to have to prove is that Mr. [Starr] is not a suitable
       custodian of the children, so what is there that's in the record that meets the
       requirements of Rule 56 that indicates that he's an unfit parent or not a
       suitable custodian?
               MS. REMY: The numerous police report, CPS report that's founded,
       findings from the Department alleging negligence, the fact that he wasn't
       able to find-or provide food, adequate food, shelter or clothing for the


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      children. The fact that he was incarcerated for assaulting of what was
      originally charged as assault of a four-year old.
              THE COURT: Again, Ms. Remy, we're talking about a summary
      judgment motion and so are there any declarations or affidavits in the file
      that support-that are based upon personal knowledge that support those
      statements?
              MS. REMY: Yes, Your Honor, in my brief cites to all of those that
      have been filed, including the law enforcement report, including a CPS
      report, including the court investigator's report, statements from my client.

RP (June 25, 2015) at 40-41.

              I read through every declaration in the file and, Ms. Remy, you have
      filed literally dozens of declarations that talk about what a good and
      responsible person your client is but I did not see any declarations from
      anyone with any personal knowledge that indicated that they had personal
      knowledge of the father's unsuitability as a custodian for the children.
      Now, maybe I missed it. Can you point me to a declaration that says that or
      gives me some information to support that contention?
              MS. REMY: We would submit that the CPS report adequately
      covers what Your Honor is requesting.
              THE COURT: Well-
              MS. REMY: In finding-finding that his father failed to provide
      adequate food, shelter and (unintelligible) and was-·and this is prior to his
      incarceration and then he was incarcerated for assaulting a four-year old.
              THE COURT: Again, Ms. Remy, do you have an affidavit or a
      declaration from somebody at CPS who has personal knowledge of the
      facts upon which you are relying?
              MS. REMY: The CPS report covers that. There was a thorough
      investigation by the Department, Your Honor.
              THE COURT: Now the investigation itself would be hearsay and not
      admissible in a summary judgment hearing. That's why I asked the
      question and I'm going to ask it one more time, can you point to any
      declaration or affidavit in the record by a person who has personal
      knowledge that supports the contention that Mr. [Starr] is an unsuitable
      parent?

RP (June 25, 2015) at 41-42.



                                            17
No. 33652-2-111
In re Custody ofS.S. and L.S.


       Betty Bartholomew's counsel also asked the trial court to consider the family court

investigator's report as evidence in opposition to the summary judgment motion. The

trial court impliedly agreed and reviewed the report before ruling.

               MS. REMY: In addition to the CPS report which was lengthy-and
       the information supported--excuse me, in my client's declaration. The
       court investigator thoroughly-also thoroughly investigated this case, Your
       Honor, and provided her recommendation. She spoke with the placement,
       spoke with the parties involved.
               THE COURT: Well, again her report would be hearsay and not
       admissible in a summary judgment proceeding.
              MS. REMY: It's my understanding that the court investigator's
       report is admissible as evidence under 2 ~ r RCW 26 (as heard), but Your
       Honor, I don't have the exact cite in front of me.
              THE COURT: Okay, I'm looking for that report ....

             THE COURT: Okay. Let me review it one more time. Okay, I have
       reviewed that report. Anything else, Ms. Remy?

RP (June 25, 2015) 42-43.

       On June 25, 2015, the trial court granted Richard Starr's summary judgment

motion. The court observed that the court had never found adequate cause to remove

Steven and Leander from their father and that, in response to Starr's motion, Betty

Bartholomew had raised no genuine issue of material fact to support her claim. The trial

court dismissed Bartholomew's nonparental custody petition and ordered that the

children be returned to Starr. After the trial court's ruling, Betty Bartholomew contended

for the first time that the trial court entered an adequate cause finding on January 9, 2014.

       As part of his summary judgment motion, Richard Starr requested an award of


                                             18
No. 33652-2-111
In re Custody ofS.S. and L.S.


$2,725 in attorney fees. Nevertheless, no attorney ever entered a notice of appearance on

behalf of Starr or signed any of Starr's pleadings. During oral argument at the summary

judgment hearing, Starr asserted that an attorney assisted him in preparing his motion.

The trial court did not address Starr's request for attorney fees.

       After appealing the trial court order on summary judgment, Betty Bartholomew

filed a CR 60 motion to vacate the grant of summary judgment. Bartholomew argued

that the January 9, 2014 hearing was an adequate cause hearing in substance and that an

adequate cause hearing is a substitute for a summary judgment hearing. The trial court

denied the motion to vacate.

                                  LAW AND ANALYSIS

       On appeal, Betty Bartholomew forwards numerous arguments in support of her

assignment of error based on the trial court's dismissing her nonparental custody petition

on summary judgment. She argues that the trial court should not have entertained the

summary judgment motion for two related, but distinct, reasons: she already established

adequate cause for gaining custody of Steven and Leander and a trial court should never

entertain a summary judgment motion in a nonparental custody action. Next,

Bartholomew maintains the trial court erred, when reviewing the summary judgment

motion, by failing to consider the CPS reports, the individualized education plans for

Steven, Richard Starr's criminal history, and the police report surrounding the child bite.

Finally, she contends issues of fact precluded summary judgment.

                                              19
No. 33652-2-111
In re Custody ofS.S. and L.S.


       In response to the appeal, Richard Starr contends the superior court never

entertained an adequate cause hearing, the trial court correctly ruled that no evidence

supported a conclusion that he was an unfit father in June 2015, Betty Bartholomew

lacked standing to seek nonparental custody, Betty Bartholomew failed to comply with

the Indian Child Welfare Act, 25 U.S.C. ch. 21, and the trial court erred in failing to

award him fees and costs. Starr filed no cross appeal.

       Issue 1: Should the trial court have refused to entertain a summary judgment

motion because the court had already entered a finding of adequate cause?

       Answer 1: We refuse to address this issue because, in response to the summary

judgment motion, Betty Bartholomew never argued this point.

       Under RCW 26.10.030, a third party may file a nonparental custody petition "if

the child is not in the physical custody of one of its parents or if the petitioner alleges that

neither parent is a suitable custodian." Upon filing a petition, the third party must submit

affidavits and obtain a court order of adequate cause before proceeding further with the           I
action. RCW 26.10.032. In other words, a court adjudicating a nonparental custody

petition must make a threshold determination that adequate cause justifies a hearing on

the petition. RCW 26.10.032(2); In re Custody ofE.A.T W., 168 Wn.2d 335,342,227

P.3d 1284 (2010).

       In response to Richard Starr's summary judgment motion, Betty Bartholomew

never contended the trial court should decline to hear the motion because of a previous

                                              20
No. 33652-2-111
In re Custody ofS.S. and L.S.


adequate cause determination. An appeals court will not review an issue, theory,

argument, or claim of error not presented at the trial court level. RAP 2.5(a); Lindblad v.

Boeing Co., 108 Wn. App. 198,207, 31 P.3d 1 (2001). A party must inform the court of

the rules of law it wishes the court to apply and afford the trial court an opportunity to

correct any error. Smith v. Shannon, 100 Wn.2d 26, 37,666 P.2d 351 (1983). The

purpose of this general rule is to give the trial court an opportunity to correct errors and

avoid unnecessary rehearings. Postema v. Postema Enterprises, Inc., 118 Wn. App. 185,

193, 72 P.3d 1122 (2003).

       In response to the summary judgment motion, Betty Bartholomew never even

claimed that the trial court previously entered an adequate cause order. During an earlier

hearing, the trial court warned counsel that she needed to establish the existence of an

adequate cause finding. During the summary judgment hearing, the trial court expressly

asked Bartholomew's counsel if the court previously entered such an order. Instead of

answering in the affirmative, counsel stated no finding was needed. If Bartholomew now

claims error because the trial court entertained the summary judgment motion, she should

have identified for the court the order that found adequate cause. By failing to do so, she

helped create any error such that the invited error doctrine also controls on appeal.

       The invited error doctrine precludes a party from seeking appellate review of an

error she helped create. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999);

State v. Henderson, 114 Wn.2d 867, 870-71, 792 P .2d 514 ( 1990). The doctrine of

                                              21
No. 33652-2-111
In re Custody ofS.S. and L.S.


invited error prohibits a party from setting up an error at trial and then complaining of it

on appeal. State v. Wakefield, 130 Wn.2d 464,475, 925 P.2d 183 (1996); State v. Pam,

101 Wn.2d 507,511,680 P.2d 762 (1984), overruled on other grounds by State v. Olson,

126 Wn.2d 315,893 P.2d 629 (1995). To determine whether the invited error doctrine is

applicable to a case, we may consider whether the petitioner affirmatively assented to the

error, materially contributed to it, or benefited from it. State v. Momah, 167 Wn.2d 140,

154,217 P.3d 321 (2009); In re Pers. Restraint of Copland, 176 Wn. App. 432,442, 309

P.3d 626 (2013).

       Betty Bartholomew's counsel for the first time, after the trial court's ruling on

June 25, 2015, orally contended that the January 9, 2014 hearing constituted an adequate

cause hearing. Counsel should have earlier and timely answered the trial court's

questioning as to an adequate cause hearing instead of waiting until after the ruling,

particularly when the trial court warned counsel in advance of the summary judgment

hearing to find any record establishing the existence of such a hearing.

       After entry of the summary judgment order and dismissal of the petition for

nonparental custody, Betty Bartholomew for the first time argued in writing that the

January 9, 2014 hearing constituted an adequate cause hearing and presumably the

January 9 order included a finding of adequate cause for the petition. She argued in a

motion to vacate the order that the trial court's failure to recognize the January 9 hearing

as an adequate cause hearing constitutes an "irregularity" requiring vacation of the order.

                                             22
No. 33652-2-111
In re Custody ofS.S. and L.S.


The trial court denied the motion to vacate. Bartholomew does not assign error to the

denial of the motion to vacate.

      Issue 2: Should the trial court have refused to entertain a summary judgment

motion is not a permissible tool in a nonparental custody action?

      Answer 2: We refuse to address this issue because, in response to the summary

judgment motion, Betty Bartholomew never argued this point.

       In response to Richard Starr's summary judgment motion, Betty Bartholomew

never contended that the motion could not be brought in a nonparental custody action.

For the same reason that we decline to entertain Bartholomew's argument that an

adequate cause determination precluded review of the summary judgment motion, we

decline to entertain the contention that a summary judgment motion is impermissible in a

nonparental custody petition.

      Issue 3: Whether the trial court should have considered the CPS reports,

individualized education plans for Steven, and police reports as evidence in opposition to

the summary judgment motion?

      Answer 3: No.

       Betty Bartholomew contends that the trial court erred by refusing to examine CPS

reports, police reports, Steven's individual education plan (IEP), and Richard Starr's

criminal history report. She argues that family law proceedings "are in a universe unto

themselves" and that the trial court, pursuant to Title 26 RCW, should have considered

                                            23
No. 33652-2-111
In re Custody ofS.S. and L.S.


the confidential reports. Appellant's Br. at 20. We reserve for later discussion her

argument that the trial court should have considered the family court investigator's

report.

          Richard Starr argues that Betty Bartholomew's assignment of error misleads

because the trial court read the declarations Bartholomew filed. Starr is correct that the

trial court read the declarations, but this argument is misplaced. Bartholomew does not

complain that the trial court failed to review declarations. The reports and education

plans were not attached to any declaration. Bartholomew claims the court committed

error by not reviewing the reports and plans regardless of whether she attached them to a

declaration.

          CR 56, a portion of the summary judgment court rule, controls. The rule reads, in

part:

                  (e) Form of Affidavits; Further Testimony; Defense Required.
          Supporting and opposing affidavits shall be made on personal knowledge,
          shall set forth such facts as would be admissible in evidence, and shall
          show affirmatively that the affiant is competent to testify to the matters
          stated therein. Sworn or certified copies of all papers or parts thereof
          referred to in an affidavit shall be attached thereto or served therewith.

Underlying CR 56(e) is the requirement that documents the parties submit must be

authenticated to be admissible. International Ultimate, Inc. v. St. Paul Fire & Marine

Insurance Co., 122 Wn. App. 736, 745-46, 87 P.3d 774 (2004).

          ER 901 or ER 902 address authenticity. ER 90l(a) reads:


                                              24
No. 33652-2-111
In re Custody ofS.S. and L.S.


             The requirement of authentication or identification as a condition
      precedent to admissibility is satisfied by evidence sufficient to support a
      finding that the matter in question is what its proponent claims.

ER 901 provides a nonexhaustive list of methods of authenticating evidence. The method

normally used in summary judgment appears to be an affidavit signed by someone with

personal _knowledge. That was not done here, and the record is silent on any other means

of authenticating any of the documents under ER 901. For a court to consider documents

in opposition to a summary judgment motion, the proponent of the document should

submit the documents with an affidavit establishing the foundation and attaching the

documents to the affidavit. CR 56(e); Milligan v. Thompson, 110 Wn. App. 628, 635, 42

P.3d 418 (2002). Betty Bartholomew failed to do so.

      ER 902 provides an exhaustive list of documents that are self-authenticating.

There are three categories in ER 902, on which Betty Bartholomew could have relied, to

authenticate the documents in question: certified copies of public records, acknowledged

documents, and presumptions created by law. Those sections declare:

              (d) Certified Copies of Public Records. A copy of an official
      record or report or entry therein, or of a document authorized by law to be
      recorded or filed and actually recorded or filed in a public office, including
      data compilations in any form, certified as correct by the custodian or other
      person authorized to make the certification, by certificate complying with
      section (a), (b), or (c) of this rule or complying with any applicable law,
      treaty or convention of the United States, or the applicable law of a state or
      territory of the United States.

              (h) Acknowledged Documents. Documents accompanied by a
      certificate of acknowledgment executed in the manner provided by law by a

                                            25
No. 33652-2-111
In re Custody ofS.S. and L.S.


       notary public or other officer authorized by law to take acknowledgments.

              (j) Presumptions Created by Law. Any signature, document, or
       other matter declared by any law of the United States or of this state to be
       presumptively or prima facie genuine or authentic.

ER 902. Assuming subsections (d) and (h) apply to police reports, CPS reports, and

educational plans, none of the reports were certified. Betty Bartholomew does not argue

that subsection (j) applies for these reports.

       Betty Bartholomew faults the trial court for not following RCW 26.10.135, which

directs the court to review background information before granting a custody order in a

nonparental custody case. The statute reads:

               Custody orders-Background information to be consulted.
               ( 1) Before granting any order regarding the custody of a child under
       this chapter, the court shall consult the judicial information system, if
       available, to determine the existence of any information and proceedings
       that are relevant to the placement of the child.
               (2) Before entering a final order, the court shall:
               (a) Direct the department of social and health services to release
       information as provided under RCW 13.50.100; and
               (b) Require the petitioner to provide the results of an examination of
       state and national criminal identification data provided by the Washington
       state patrol criminal identification system as described in chapter 43.43
       RCW for the petitioner and adult members of the petitioner's household.

RCW 26.10.135. We refuse to address this contention since Bartholomew did not raise

the statute before the trial court. Also, the statute requires the court's perusal of

information before entering an order of custody, not before dismissing the case for lack

of evidence. Some of the information listed in the statute concerns only the petitioner,


                                                 26
No. 33652-2-111
In re Custody ofS.S. and L. S.


not the respondent parent.

       Betty Bartholomew posits that CR 56(c) authorizes the trial court to consider any

pleadings in the clerk's file as long as a party mentions the pleading. She underscores

CR 56(c), which reads, in relevant part: "The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis

added.) She focuses on the word "pleadings."

       Betty Bartholomew's argument fails to recognize a critical passage within CR 56.

CR 56(e) reads, in pertinent part: "Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters stated

therein." In making a responsive showing, the nonmoving party cannot rely on the

allegations made in its pleadings, but, by affidavits or as otherwise provided in CR 56,

must set forth specific facts showing there is a genuine issue for trial. Young v. Key

Pharmaceuticals, Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989).

       Issue 4: Whether the trial court should have considered the family court

investigator's report as evidence in opposition to the summary judgment motion?

       Answer 4: We do not address this issue since the record shows the trial court

reviewed the report.

                                             27
No. 33652-2-111
In re Custody ofS.S. and L.S.


       Betty Bartholomew next contends that the trial court should have, under RCW

26.10.130, considered the investigator's report without any authentication. The statute

controls the appointment of an investigator in a child custody case and use of the

investigator's report. The statute reads, in relevant part:

               ( 1) In contested custody proceedings, and in other custody
       proceedings if a parent or the child's custodian so requests, the court may
       order an investigation and report concerning custodian arrangements for the
       child, or may appoint a guardian ad litem pursuant to RCW 26.12.175, or
       both. The investigation and report may be made by the guardian ad litem,
       the staff of the juvenile court, or other professional social service
       organization experienced in counseling children and families.
               (2)... If the requirements of subsection (3) of this section are
       fulfilled, the investigator's report may be received in evidence at the
       hearing.
               (3) The investigator shall mail the investigator's report to counsel
       and to any party not represented by counsel at least ten days prior to the
       hearing unless a shorter time is ordered by the court for good cause shown.
       The investigator shall make available to counsel and to any party not
       represented by counsel the investigator's file of underlying data and
       reports, complete texts of diagnostic reports made to the investigator
       pursuant to the provisions of subsection (2) of this section, and the names
       and addresses of all persons whom the investigator has consulted. Any
       party to the proceeding may call the investigator and any person whom the
       investigator has consulted for cross-examination. A party may not waive
       the right of cross-examination prior to the hearing.

The statute does not identify the form of "hearing," in which the report may be received

into evidence under subsection 2. We presume such a hearing includes a summary

judgment hearing, since the hearing can be as dispositive as a trial.

       We reject Betty Bartholomew's contention on appeal for two reasons. First, she

has not confirmed that the family court investigator complied with subsection 3 of the

                                              28
No. 33652-2-111
In re Custody ofS.S. and L.S.


statute. For example, we have no confirmation that the investigator mailed a copy of the

report to Richard Starr. Second, the record shows that the trial court considered the

investigator's report. He reviewed it before ruling.

       Issue 5: Whether the trial court erred when granting summary judgment to

Richard Starr?

       Answer 5: No.

       The trial court dismissed, on summary judgment, Betty Bartholomew's petition for

nonparental custody of Steven and Leander Starr. Therefore, we must explore what proof

one needs in order to gain custody of a child under the nonparental custody act.

       Under RCW 26.10.030, a third party may file a nonparental custody petition "if

the child is not in the physical custody of one of its parents or if the petitioner alleges that

neither parent is a suitable custodian." One of the key provisions of the nonparental

custody act is RCW 26.10.100. This section reads:

              The court shall determine custody in accordance with the best
       interests of the child.

This standard interferes in a parent's constitutional right to the care, custody and

companionship of a child. Therefore, to prevail, the nonparent must show more than the

best interests of the child are served by taking custody from the parent. The petitioning

party must show that the natural parent is unfit or placement with the parent causes actual

detriment to the child's growth and development. In re Custody ofShields, 157 Wn.2d


                                              29
No. 33652-2-111
In re Custody ofS.S. and L.S.


126, 144, 136 P.3d 117 (2006). Lack of physical custody alone is insufficient to establish

adequate cause. In re Custody ofE.A. T. W, 168 Wn.2d at 345.

       Because of the severe consequences of an erroneous deprivation of a parent's

custody rights, a court must apply a rigorous standard of proof in resolving third party

custody petitions. In re Custody ofC.C.M, 149 Wn. App. 184, 204-05, 202 P.3d 971

(2009). Thus, the petitioning party must prove his or her case by clear and convincing

evidence. Custody ofC.C.M, 149 Wn. App. at 205. This burden of proof is so

substantial that, when properly applied, it will be met in only extraordinary

circumstances. Custody of C.C.M, 149 Wn. App. at 204.

       This appeal comes to us on a summary judgment dismissal. Appellate courts

review summary judgment de novo. Heath v. Uraga, 106 Wn. App. 506,512, 24 P.3d

413 (2001 ). Summary judgment is appropriate when there is no genuine issue of material

fact and that the moving party is entitled to a judgment as a matter oflaw. CR 56(c).

Based on the percipient testimony before the trial court, there was no issue of fact. We

agree with the trial court that none of Bartholomew's admissible evidence showed Starr

to be unfit as a father.

       To defeat Richard Starr's summary judgment motion, Betty Bartholomew needed

to present evidence that Starr was an unfit parent or his custody would result in actual

detriment to one of the children's growth and development. Bartholomew, in her

declaration, mentioned that Starr had been in jail and left the children in an unsafe

                                             30
No. 33652-2-111
In re Custody ofS.S. and L.S.


environment. CPS then took custody of the children. These events occurred one and

one-half years before the summary judgment motion hearing. Bartholomew presented no

evidence to support a finding that Starr was an unfit parent in June 2015.

       In a marital dissolution custody dispute, this court noted that the test for fitness of

custody is the present condition of the mother and not any future or past conduct. In re

Marriage ofNordby, 41 Wn. App. 531, 534, 705 P.2d 277 (1985). This same principle

should apply in a third party custody case.

       Betty Bartholomew submitted a declaration that supports a finding that Steven

holds special needs, in part because of Asperger' s syndrome. The declaration also

mentions that Richard Starr has failed to exercise visitation rights with the children and

that phone calls with their father induce stress in the children. Nevertheless, Betty

Bartholomew submitted no percipient testimony from herself or others that Steven would

face actual detriment to his growth and development if Richard Starr regained custody.

       Custody of C.C.M, 149 Wn. App. 184 (2009) establishes that lack of visitation

between a parent and a child is not grounds for nonparental custody. In C.C.M, this

court affirmed the trial court's denial of the grandparents' petition for custody and award

of placement to the father. The child lived with the grandparents since her birth and until

the filing of the petition. The record showed no visits by the father until after the filing of

the petition.

       Betty Bartholomew faults Richard Starr for failing to file affidavits that

                                              31
No. 33652-2-111
In re Custody ofS.S. and L.S.


affirmatively showed him to be a fit parent. We question this argument since Starr filed

an affidavit from himself. Nevertheless, because Betty Bartholomew had the burden of

proving Starr to be unfit, Starr had no obligation to file affidavits to prove his claim.

Under CR 56(b), a party against whom a claim is asserted "may move with or without

supporting affidavits for a summary judgment." A party moving for summary judgment

can meet its burden by pointing out to the trial court that the nonmoving party lacks

sufficient evidence to support its case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d

at 225 n.1 (1989); Seybold v. Neu, 105 Wn. App. 666,677, 19 P.3d 1068 (2001). In such

a situation, the moving party is not required to support its summary judgment motion

with affidavits. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d at 226. If a defendant

chooses this method of seeking summary judgment, the requirement of setting forth

specific facts does not apply. Seybold v. Neu, 105 Wn. App. at 677. The reason for this

result is that a complete failure of proof concerning an essential element of the
                                                                                            f
nonmoving party's case necessarily renders all other facts immaterial. Seybold v. Neu,

105 Wn. App. at 677.

       Because we affirm the summary judgment order on the grounds of lack of

evidence of an unfit father, we need not address whether Betty Bartholomew

intentionally withheld the children from Richard Starr in order to gain standing. We also

do not decide whether the Indian Child Welfare Act applies.




                                              32
     No. 33652-2-111
     In re Custody ofS.S. and L.S.


            Issue 6: Whether the trial court erred when denying Richard Starr an award of

     reasonable attorney fees and costs at the trial court level?

            Answer 6: We do not address this issue since Richard Starr did not cross appeal

     the denial offees.

            Richard Starr seeks a reversal of the trial court's denial of his request for

     reasonable attorney fees and costs. He argues that fees should have been granted because

     Betty Bartholomew infringed his constitutional right to his children. With his contention,

     Starr attempts to cross appeal the denial of attorney fees below. Nevertheless, he filed no

     cross appeal. Therefore, we refuse to address his contention.

            Issue 7: Whether Betty Bartholomew should be awarded reasonable attorney fees

     and costs on appeal?

            Answer 7: No.

            Betty Bartholomew requests an award of attorney fees in a footnote in her brief

     that reads: "Ms. [Bartholomew] should be awarded fees and found in contempt on appeal

     for filing an affidavit in bad faith. CR 56(g)." Appellant's Br. at 29 n.8. She repeats this

     request in her reply brief. Taken literally, Bartholomew volunteers to be found in

     contempt, but we assume she requests an award of fees against Richard Starr.

            RAP 10.3 requires argument to be supported by citations to legal authority and

     references to the record. RAP 10.3(a)(6). Passing treatment of an issue or lack of

     reasoned argument is insufficient to merit judicial consideration. Holland v. City of
j
                                                   33
i
i
;
1
I
I
,,
No. 33652-2-111
In re Custody ofS.S. and L.S.


Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). Since Betty Bartholomew presents

no reasoned argument as to why she should be awarded fees, we deny the request. We

also note that she does not prevail on appeal.

       Issue 8: Whether Richard Starr should be awarded reasonable attorney fees and

costs on appeal?

       Answer 8: No.

       Richard Starr also requests attorney fees on appeal. He first argues that this appeal

is frivolous and so he is entitled to attorney fees pursuant to RCW 4.84.185. RCW

4.84.185 allows the court to award attorney fees if it determines the action was frivolous.

Such an award is available only when the action as a whole, can be deemed frivolous. A

lawsuit is frivolous if, when considering the action in its entirety, it cannot be supported

by any rational argument based in fact or law. Dave Johnson Ins., Inc. v. Wright, 167

Wn. App. 758, 785, 275 P.3d 339 (2012). We find that Bartholomew has forwarded

some debatable arguments, particularly since the law surrounding nonparental custody

claims is unsettled.

       Richard Starr also seeks attorney fees under RAP 18.1 and RCW 26.10.080. RAP

18.l(a) allows this court to award reasonable attorney fees and costs if applicable law

grants the party the right to recover them. RAP 18.1 (c), however, demands that, if the

underlying statute requires consideration of financial resources, the requesting party must

file an affidavit of financial need. RCW 26.10.080 requires a consideration of financial

                                             34
No. 33652-2-111
In re Custody ofS.S. and L.S.


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." If the requesting party fails to file an

affidavit of need as required by RAP 18.l(c), this court has refused to award attorney

fees. In re the Marriage ofHolmes, 128 Wn. App. 727, 742, 117 P.3d 370 (2005).

Richard Starr has not filed an affidavit of financial need. Therefore, we deny his request

for attorney fees.

                                      CONCLUSIONS

       We affirm the trial court's dismissal, on summary judgment, of Betty

Bartholomew's nonparental custody action. We deny both parties an award of reasonable

attorney fees and costs at either the trial court level or on appeal.

       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.


                                            Fearing,C.

WE CONCUR:




                                            Pennell, J.



                                              35
