                                                                 FILED
                                                              June 14, 2016
                                                     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 Custody of:                         )         No. 33132-6-III
                                              )
M.S., LS., and R.s.,t                         )
                                              )
                        Children,             )
                                              )
TRACY CRISWELL,                               )         UNPUBLISHED OPINION
                                              )
                        Petitioner,           )
                                              )
DCFS,                                         )
                                              )
                        Respondent.           )

        LAWRENCE-BERREY, J. -Tracy Criswell appeals the superior court's order

dismissing her petition for nonparental custody of her three grandchildren. She argues the

superior court made multiple errors and improperly found that she had not established

adequate cause for a hearing on the merits. We affirm on an alternative basis argued

below and on appeal: the superior court did not have authority to hear the nonparental

custody petition because there was a pending dependency action involving these children,


       t For purposes of this opinion, the minor children's initials are used in place of
their names.
No. 33132-6-III
In re Custody of MS., I.S., and R.S.


and there is no record that the dependency court ever granted the superior court

concurrent jurisdiction.

                                              FACTS

       The Department of Social and Health Services, Division of Children & Family

Services (Department) removed M.S., LS., and R.S. from their mother's care in July

2012. The dependency court later found the children to be dependent. Early on in the

dependency, Ms. Criswell, the children's maternal grandmother, asked the Department to

place the children with her in California.

       With Ms. Criswell's permission, the Department requested records from Butte

County Children's Services in California (California Department). Those records

revealed that Ms. Criswell, who has legal custody of a previous boyfriend's two

grandchildren, was involved in a domestic violence incident with her new boyfriend in

March 2013. The incident involved alcohol and marijuana, and the children were present.

The police arrested Ms. Criswell and her boyfriend, and the Department detained the

children. The California Department investigated Ms. Criswell for allegations of

emotional abuse and general neglect of the two children, and determined that those

allegations were substantiated. In the year leading up to this incident, the police

responded to Ms. Criswell's home 16 times for calls involving domestic violence, noise



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No. 33132-6-III
In re Custody of MS., I.S., and R.S.


complaints, welfare checks, neighbor disputes, vandalism, and public intoxication. Ms.

Criswell successfully participated in domestic violence counseling, substance abuse

treatment, counseling, and parent education in California, and the California Department

returned the two children to her care after two months.

       In light of the information contained in the California records, the Department was

unable to approve a home study for Ms. Criswell or place M.S., I.S., and R.S. in her care.

After several other placements, the Department eventually placed all three children in the

same licensed foster care home in January 2013. The children all have behavioral or

developmental issues, and the foster parents regularly take the children to counseling,

have support systems and programs in place through their church, and have a

paraprofessional who provides additional support and supervision.

      The Department offered services to both biological parents. The parents did not

complete services or remedy their parental deficiencies, and they both relinquished their

parental rights in May 2014. The foster parents are willing to adopt the children. A

contract issue with the Department home study evaluator held up the home study process,

but the foster parents and the Department are working to get a home study done.




                                             3
No. 33132-6-III
In re Custody of MS., 1.S., and R.S.


       In December 2014, Ms. Criswell filed a prose petition for nonparental custody of

the three children. In her petition, Ms. Criswell alleged that awarding her custody of the

children would be in their best interests because they would be able to

       be with the family they grew up with. At one time I had all five children
       living in my home and I would really love to see us as a hole [sic] again. I
       also believe they belong with family who loves them dearly and not
       strangers. They deserve to know their blood relatives.

Clerk's Papers (CP) at 10. Ms. Criswell later filed a handwritten affidavit in support of

her petition, in which she testified that "[t]he reports regarding [the California step-

children], yes they are true but they were returned back in my care after only being

detained for two months." CP at 66. Ms. Criswell also stated that since her involvement

with the California Department in 2013, she has attended counseling, parenting classes,

and has been sober for two years.

       After Ms. Criswell petitioned for custody, the dependency court appointed Janelle

Carman to represent the children. Ms. Carman opposed Ms. Criswell's petition in light of

her history with the California Department and the fact that the children are stable in their

current placement. The Department moved to dismiss Ms. Criswell's petition on the

grounds that the superior court did not have the authority to hear it, and argued the

dependency court had exclusive jurisdiction.




                                               4
No. 33132-6-III
In re Custody of MS., I.S., and R.S.


       The superior court held a hearing on Ms. Criswell' s petition. The court reviewed

the pleadings and dismissed Ms. Criswell' s petition on the grounds that her affidavits did

not establish adequate cause to require a hearing on the merits. In dismissing Ms.

Criswell's petition, the court noted the California Department's substantiated findings of

emotional abuse and neglect. The superior court did not address the Department's

argument that it lacked authority to hear Ms. Criswell's petition. The superior court then

sealed the file associated with Ms. Criswell' s petition, except as to the parties to the

dependency case. 1 Ms. Criswell appeals.

                                         ANALYSIS

       The Department argued below and on appeal that the superior court lacked

authority to hear Ms. Criswell' s petition because there was a pending dependency

proceeding and the dependency court never granted concurrent jurisdiction to the superior

court. Where an issue was raised, briefed, and argued by the parties below but not

decided by the trial court, and the parties on appeal have had sufficient opportunity to

brief the issue, an appellate court may affirm the trial court on that alternative basis. LK


       1
         In her brief, Ms. Criswell notes that the clerk's office initially denied her access
to the court file, but that she was eventually able to access the full record by September
2015. Br. of Appellant at 4. This court gave Ms. Criswell two extensions to file her
opening brief, which she eventually filed on November 6, 2015. There is no indication
that the sealed file hindered Ms. Criswell's ability to argue her case on appeal.

                                               5
No. 33132-6-III
In re Custody of MS., I.S., and R.S.


Operating, LLCv. Collection Grp., LLC, 181 Wn.2d48, 70-71, 331 P.3d 1147 (2014).

To the extent the meaning of chapter 26.10 RCW and chapter 13.34 RCW are at issue,

statutory interpretation is a question of law reviewed de novo. State v. Gonzalez, 168

Wn.2d 256,263,226 P.3d 131 (2010).

       The legislature has enacted numerous statutes to distribute and assign various

superior court matters to dependency courts and family courts, which are both divisions of

the superior court. 2 In re Dependency of E.H, 158 Wn. App. 757, 765, 243 P.3d 160

(2010). One of these statutes, RCW 13.04.030(1), provides that "the [dependency] courts

in this state shall have exclusive original jurisdiction over all proceedings ... [r]elating to

children alleged or found to be dependent as provided in chapter 26.44 RCW and in

RCW 13.34.030 through 13.34.161."

       RCW 26.10.030( 1) permits a nonparent to petition for custody of a child. That

statute provides that "[e ]xcept as authorized for proceedings brought under chapter 13. 34

RCW, ... a child custody proceeding is commenced in the superior court by a person

other than a parent, by filing a petition seeking custody of the child." RCW 26.10.030(1)




       2
        "While these statutes often speak of 'jurisdiction' they are not jurisdictional
because they are not the source of the superior courts' power to hear and determine the
issues before them." E.H, 158 Wn. App. at 765. "Article IV, section 6 of the state
constitution is the source of that power." Id.

                                              6
No. 33132-6-III
In re Custody of MS., IS., and R.S.


(emphasis added). RCW 13.34.155(1) authorizes the dependency court hearing a

dependency action to hear nonparental custody petitions.

       Partly to prevent multiple courts from entering inconsistent orders, the superior

court must determine whether the subject children are involved in a pending dependency

action before hearing a nonparental custody petition. See RCW 26.10.030(1). If they are,

and unless the dependency court grants concurrent jurisdiction to the superior court, the

superior court must either dismiss or stay the nonparental custody petition. See E.H., 158

Wn. App. at 764 (dependency court did not err by granting concurrent jurisdiction to the

superior court to hear the nonparental custody action); In re Dependency ofJ. WH., 106

Wn. App. 714, 726-27, 24 P.3d 1105 (2001) (superior court correctly stayed the custody

action pending resolution of the dependency proceeding), rev'd on other grounds, 147

Wn.2d 687, 57 P.3d 266 (2002); In re Marriage of Rich, 80 Wn. App. 252,256,907 P.2d

1234 (1996) (superior court had authority to enter final parenting plan in dissolution

proceeding because dependency court had already dismissed dependency petition); In re

Marriage of Perry, 31 Wn. App. 604,608,644 P.2d 142 (1982) (superior court had

authority to proceed with postdivorce custody modification after dependency court

expressly granted superior court concurrent jurisdiction).




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No. 33132-6-III
In re Custody of MS., I.S., and R.S.


       Here, there was a pending dependency involving the subject children, and there is

no record that the dependency court ever granted the superior court concurrent

jurisdiction. The superior court thus did not have authority to hear the nonparental

custody petition. Because the superior court lacked the authority to hear the nonparental

custody petition, we do not reach Ms. Criswell's other assignments of error relating to the

superior court proceedings.

       Affirmed.

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

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

RCW 2.06.040.


                                          Lawrence-Berrey, J.

WE CONCUR:




                                          Pennell, J.




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