       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Custody of LMS,

                     Minor Child,                 No. 72938-1-1

FAUALUGA and BILLIE SIUFANUA,                     DIVISION ONE


                     Appellants,

                                                                                       !
              v.
                                                                                       CO

                                                                                            <:r> r •
TONY SAMOA FUGA,                                  UNPUBLISHED OPINION


                     Respondent,                  FILED: February 8, 2016

              and


LISA LYNNETT SIUFANUA,

                     Respondent.1"


       Becker, J. — Billie and Faualuga Siufanua appeal the trial court's

dismissal of their nonparental custody petition for failure to show adequate

cause. Their petition and affidavits do not show that the child has special needs

that her father cannot meet. The fact that the father remained apart from the

child for many years does not, by itself, mean that the father is unfit or unable to

meet the child's basic needs. The trial court correctly dismissed the petition.



        t Although the case caption designates Lisa Siufanua as respondent, Lisa
is not a party to the appeal. However, the case caption will retain Lisa's trial
court designation as "respondent."
No. 72938-1-1/2



                                      FACTS



       LMS was born in Washington in December 2005 to Tony Fuga, then 20

years old, and Lisa Siufanua, then 18 years old. After her birth, LMS lived in

Washington with both of her parents at the home of the Siufanuas, her maternal

grandparents. LMS's parents later ended their relationship.

       Fuga moved to California when LMS was less than three years old. He

has resided there ever since. From the time he moved to California until LMS

was eight years old, Fuga saw LMS only once. This visit took place in 2012 or

2013 for one afternoon in California when LMS was vacationing with her mother.

Fuga married in 2008. He and his wife now have two sons, approximately five

and six years old.

       LMS remained in Washington. It is unclear whether LMS ever lived with

her mother independently from the Siufanuas. At some point, LMS's mother

began to struggle with substance abuse and the Siufanuas took over the care of

LMS.


       In a parentage action in 2012, the King County Superior Court legally

established Fuga as LMS's father, ordered him to pay child support, including

back support, and gave custody of LMS to her mother. Fuga did not seek

custody of LMS at this time.

       On October 3, 2014, Fuga unexpectedly appeared at the Siufanuas' home

and discovered that LMS was living there. Fuga claims that this is the first time

he learned that LMS was not living with her mother, but instead with the

Siufanuas.
No. 72938-1-1/3



       On October 8, 2014, just five days after his visit to the Siufanuas' home,

Fuga petitioned to modify the 2012 judgment and order establishing parentage to

become the custodial parent for LMS. On October 14, 2014, the Siufanuas filed

a nonparental custody petition seeking custody of LMS. The two proceedings

were consolidated. A superior court commissioner dismissed the Siufanuas'

nonparental custody petition for lack of adequate cause. The Siufanuas moved

for revision, and the superior court denied their motion. The Siufanuas appeal.

                          NONPARENTAL CUSTODY PETITION

       The due process clause of the Fourteenth Amendment protects the

fundamental right of parents to make decisions regarding the care, custody, and

control of their children. Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct2054, 147

L. Ed. 29 49 (2000). This protected interest is "perhaps the oldest of the

fundamental liberty interests" recognized by the United States Supreme Court.

Troxel, 530 U.S. at 65-66 (collecting cases). In deference to this fundamental

parental right, a nonparent seeking custody of a child in Washington State must

meet a higher burden than the "best interests of the child" standard that governs

when the dispute is between parents. In re Marriage of Allen, 28 Wn. App. 637,

649,626P.2d 16(1981).

       The nonparent who has filed a custody petition under RCW 26.10 must

demonstrate adequate cause for a hearing. This is done by submitting an

affidavit alleging facts that, if proved, would establish that (a) placing the child

with the parent would result in actual detriment to the child's growth and

development or (b) that the parent is unfit. RCW 26.10.032; In re Custody of
No. 72938-1-1/4



E.A.T.W., 168 Wn.2d 335, 348, 227 P.3d 1284 (2010) (emphasis added). The

court shall deny the petition for nonparental custody unless it finds that adequate

cause for hearing on the motion is established by the affidavits. RCW

26.10.032(2).

      The Siufanuas contend that the trial court erred in dismissing their

nonparental custody petition for lack of adequate cause. Our review is for abuse

of discretion. In re Marriage of Mauqhan. 113 Wn. App. 301, 306, 53 P3d 535

(2002).

                                   Actual detriment


      Whether placement with a parent will result in actual detriment to a child's

growth and development is a highly fact-specific inquiry that must be determined

on a case-by-case basis. In re Custody of B.M.H., 179 Wn.2d 224, 236, 315

P.3d 470 (2013). The requisite showing required of the nonparent is substantial,

and a nonparent will generally be able to meet this test only in extraordinary

circumstances. In re Custody of Shields, 157 Wn.2d 126, 145, 136 P3d 117

(2006). Actual detriment has been defined as a middle ground, "something

greater than the comparative and balancing analyses of the 'best interests of the

child' test" but "less than a showing of unfitness." Allen, 28 Wn. App. at 649.

       The actual detriment standard can be satisfied where the child has

significant special needs that the parents cannot meet. For example, the actual

detriment standard was satisfied where the child was deaf and the petitioner

stepmother and her three children had learned fluent sign language to

communicate with the child and integrate him into their family unit. Allen, 28 Wn.
No. 72938-1-1/5



App. at 641. The child's father knew only minimal sign language. Allen, 28 Wn.

App. at 641. Additionally, the stepmother had undertaken extraordinary efforts to

obtain special training for the deaf child. Allen, 28 Wn. App. at 641. On these

facts, the grant of custody to the stepmother was upheld. In another case, this

court reversed the trial court and found that the petitioner aunt met her burden to

prove actual detriment where the child had been physically and sexually abused

and needed extensive therapy and stability at a level that the parents had not

been able to provide. In re Custody of Stell, 56 Wn. App. 356, 783 P2d 615

(1989).

       In contrast, the Washington State Supreme Court recently reversed a

finding of actual detriment where the child had no special needs. B.M.H., 179

Wn.2d at 224. In B.M.H., the stepfather alleged detriment to the child on the

basis that the mother was moving with the child 50 miles away and that she

would interfere with his relationship with the child. B.M.H., 179 Wn.2d at 237. It

was not alleged that B.M.H. had any special needs. Our Supreme Court

distinguished the case of B.M.H. from Allen and Stell on the basis that in each of

those cases, the child had significant special needs that would not be met if the

child were in the custody of the parent. B.M.H., 179 Wn.2d at 239. The court

reasoned that continuity of psychological relationships and family units was

particularly important where a child has special needs. B.M.H., 179 Wn.2d at

239. Absent such extraordinary circumstances, the court held that the custody

petition should be dismissed because the stepfather had not met his burden to

show actual detriment to the child. B.M.H., 179 Wn.2d at 239.
No. 72938-1-1/6



       This case is analogous to B.M.H. There is no allegation that LMS has a

special need. Nor is there evidence in the record that Fuga is currently unable to

meet LMS's needs. To the contrary, unrebutted written declarations from both

Fuga and his wife establish that they are currently parenting two young sons

successfully.

       The Siufanuas allege that they have acted as LMS's parents "for all of her

life" and that she would suffer actual detriment if she were ripped away from "the

only home she has ever known and the only family she has ever known." They

allege that Fuga is a "stranger" to LMS because "he has lived in another state for

the better part of a decade with only minimal contact with the child." But moving

a child away from a nonparent to whom the child is bonded is not, by itself, actual

detriment. Our Supreme Court rejected that argument in B.M.H.

       The Siufanuas lean heavily on the fact that Fuga was almost entirely

absent from his daughter's life for many years while the Siufanuas were raising

her. But even such a long absence does not establish actual detriment as the

cases have illuminated the meaning of that term. Fuga's fundamental right to

custody of his daughter is protected by the Fourteenth Amendment despite his

long absence from her life. Weighed against the fundamental protected right of

the biological parent, even the fact that the Siufanuas have been raising LMS for

most of her remembered life is not enough to prove that placing LMS with Fuga

will be an actual detriment to her further growth and development.

      The Siufanuas analogize to Stell, 56 Wn. App. 356, arguing that we should

look to whether the nonparent has become a "psychological parent." In Stell,
No. 72938-1-1/7



uncontroverted expert testimony indicated that the child's aunt had become his

psychological parent. Stell, 56 Wn. App. at 359. There is no comparable

evidence in this case. To the contrary, the superior court commissioner found

that LMS "has a relationship with the father and thinks of the father as her father."

The Siufanuas do not dispute that LMS knows Fuga is her father and recognizes

him as such. Their allegation that LMS refers to them as "'mom and dad'" does

not establish that they have become LMS's psychological parents as that term is

used in Stell.

       The Siufanuas also analogize to In re Interest of Mahanev, 146 Wn.2d

878, 51 P.3d 776 (2002), arguing that we can take into account the continuing

detrimental effects of a parent's past unfitness. In Mahanev. the children lived

with their grandmother for approximately a decade after their parents essentially

abandoned them. Mahanev, 146 Wn.2d at 884. The mother's petition to have

the children returned to her was denied. Mahanev, 146 Wn.2d at 884-85.

However, the children in Mahanev had special needs in the form of severe

mental and behavioral illnesses. Mahanev, 146 Wn.2d at 885. These children's

special needs were causally connected to their parents' past behavior, including

domestic violence, substance abuse, and allegations of sexual abuse at the

hands of their mother and her family. Mahanev, 146 Wn.2d at 884, 894-95. The

problems caused by the parents' abuse and neglect of the children were

documented by expert witnesses. Mahanev, 146 Wn.2d at 885, 892. The

Siufanuas do not offer factual support for the argument that Fuga's absence

caused similar damage to LMS. They merely allege that "there is no doubt that
No. 72938-1-1/8



she has suffered and will suffer from his absence in her life, and that is not

something that is simply undone by his return." The conclusory nature of the

analogy to Mahanev makes it unpersuasive.

       The Siufanuas also allege actual detriment to LMS based on the fact that

Fuga has a history of domestic violence. The record contains evidence of one

domestic violence charge filed against Fuga. He was charged with assaulting

LMS's mother in April 2005, when she was pregnant with LMS. Fuga completed

court-ordered domestic violence treatment, and the charge was dismissed.

Domestic violence is never to be condoned, but the weight to be given to this

incident is limited because it happened over a decade ago and we have no

evidence that Fuga has any other criminal history.

       We conclude that the trial court did not abuse its discretion in finding that

placing LMS with her father would not result in actual detriment to her growth or

development.

                                      Unfitness

       A parent is unfit if he cannot meet the child's basic needs. B.M.H., 179

Wn.2d at 236. The Washington State Supreme Court has looked to

Washington's dependency statutes and statutes relating to child abuse and

neglect for guidance in determining whether a parent is unfit. See, e.g., B.M.H.,

179 Wn.2d at 236 (citing RCW 26.44); Shields, 157 Wn.2d at n.6 (citing chapter

13.34 RCW and chapter 26.44 RCW). In this case, where the only alleged

ground of parental unfitness is the parent's absence from the child's life for many

years, the analogous ground of dependency is abandonment. Abandonment is


                                          8
No. 72938-1-1/9



defined as "when the child's parent, guardian, or other custodian has expressed,

either by statement or conduct, an intent to forego, for an extended period,

parental rights or responsibilities despite an ability to exercise such rights and

responsibilities." RCW 13.34.030(1).

       The Siufanuas contend that Fuga's absence during most of LMS's life is

abandonment. The Siufanuas allege that LMS was living with them at their home

the entire time, so Fuga should have known where to find her. They argue that

"the most critical element of a fit parent... is that that parent is there for the

child. Without even seeing the child or participating in the child's life, a parent is

not even performing that most basic function that has to comprise the core of fit

parenting."

       Fuga responds that he was out of contact with LMS because he believed

that the child was living with her mother, who cut off contact by repeatedly

changing her phone number and moving residences without informing him. Fuga

says that he did not find out that LMS was living with the Siufanuas until he

showed up at their home in October 2014 to ask them where she was. Fuga

does not persuasively explain why he did not take this step earlier. At the same

time, the Siufanuas do not claim that they ever tried to let Fuga know that they

had taken over the care of LMS. On this record, it is fair to say that LMS's

mother, and perhaps the Siufanuas as well, played a part in Fuga's failure to

maintain a close relationship with his daughter.

       Fuga probably could have done more to find LMS and renew his

relationship with her. Still, even if his conduct has some of the hallmarks of
No. 72938-1-1/10



abandonment, the important question is whether his past absence has rendered

him currently unable to meet LMS's basic needs. On that question, the

unrebutted evidence shows him to be able and willing. We conclude that the trial

court did not abuse its discretion in finding that Fuga is not unfit to parent his

daughter.

                               GUARDIAN AD LITEM


       At the adequate cause hearing, the Siufanuas requested the appointment

of a guardian ad litem to represent LMS's interests. The commissioner denied

the request for a guardian ad litem, stating that it was probably not necessary

and would be very expensive. Instead, the commissioner ordered a home visit

as a means to assure that Fuga's home is appropriate for LMS. At the revision

hearing, the Siufanuas renewed their request for a guardian ad litem. The court

denied it. On appeal, the Siufanuas contend that a guardian ad litem should

have been appointed.

       A court may appoint a guardian ad litem to represent the interests of a

minor or dependent child "when the court believes the appointment of a guardian

ad litem is necessary to protect the best interests of the child." RCW 26.12.175.

Under this statute, a court may appoint a guardian ad litem in contested custody

proceedings. RCW 26.10.130. A trial court should appoint a guardian ad litem or

an attorney for a child if it would assist the court in determining the custody issue.

Stell, 56 Wn. App. at 370-71. In Stell, the trial court refused to consider repeated

and unanimous expert opinions. This court reversed and ordered that a guardian

ad litem be appointed on remand. Stell, 56 Wn. App. at 370-71.


                                          10
No. 72938-1-1/11



       The decision to appoint a guardian ad litem is discretionary. See RCW

26.12.175; RCW 26.10.130 (court may appoint a guardian ad litem). Atrial court

abuses its discretion if its decision is not based on tenable grounds or tenable

reasons. Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 701, 9

P.3d 898 (2000). Here, the court had a tenable basis for refusing to appoint a

guardian ad litem. An adequate cause determination is based on the parties'

affidavits, and the affidavits did not show adequate cause for an evidentiary

hearing. In contrast to Stell. there was no custody trial in this case, nor did the

trial court refuse to consider evidence. We find no abuse of discretion.

       Both parties request attorney fees under RCW 26.10.080, which provides

that upon 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 balance the needs of the party requesting

fees against the other party's ability to pay. See, e.g., B.M.H.. 179 Wn.2d at 244.

Balancing the parties' respective needs and ability to pay, we decline to award

attorney fees.

       Affirmed.




                                                     l5*bk£<&
WE CONCUR:




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