Opinion
No. 30302-7-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 97-3-02707-1. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Stephen Gregory Johnson, Attorney at Law, PO Box 5816, Tacoma, WA 98415-0816.
Counsel for Respondent(s), Marcia Marie Nelson (Appearing Pro Se), 11124 194th St. Ct East, Graham, WA 98338.
Jeffrey Ryan Nelson appeals a trial court order granting his former wife, Marcia Marie Nelson, unsupervised visitation with their son, Joey. He argues that Marcia failed to establish that she had met the requirements of the final parenting plan. Because Marcia failed to present any evidence showing that she had complied with the requirements stated in the parenting plan, we reverse and remand for further proceedings.
Jeffrey also argues that the trial court erred when it focused on Marcia's rather than Joey's best interests. Because we conclude below that the trial court erred in finding that Marcia had complied with the June 29, 2001 parenting plan requirements, we need not reach this issue.
Facts I. Parenting Investigator's Reports
Jeffrey and Marcia Nelson were married December 12, 1996. Joey was born on March 3, 1997; and the couple separated a few months later. Their marriage was dissolved on April 6, 1999, and a parenting plan was apparently entered at that time.
Sometime in 1999 or early 2000, Marcia moved to modify the final parenting plan, asserting that Jeffrey had sexually abused Joey. The alleged abuse was also reported to Child Protective Services.
The record on appeal does not contain the original final parenting plan or the motion to modify the parenting plan. But court records show that the court entered a final parenting plan in April 1999.
Joey was evaluated at the Mary Bridge Sexual Assault Clinic. This evaluation did not confirm sexual abuse. CPS closed the case as inconclusive on November 28, 2000.
On June 7, 2000, the trial court appointed Parenting Investigator Judy Snow. In her August 28, 2000 preliminary report and her June 3, 2001 final report, Snow described the couple's history and current working and living situations, the results of her investigation of the alleged sexual abuse, and her concerns and conclusions about the parties' relative parenting abilities.
Snow reported that Jeffrey denied the sexual abuse allegations and that he was concerned Marcia may have fabricated the allegations to eliminate him from Joey's life. At Snow's request, both parties submitted to a polygraph test.
The polygraph administrator, Rick Minnich, found Marcia's polygraph results to be "inconclusive" and expressed concern about Marcia's flat affect and her presentation. Clerk's Papers (CP) at 3-4. Snow had also noted that Marcia presented a flat affect that appeared consistent with either substance abuse or a psychiatric disorder such as depression. Minnich further reported that Jeffrey's polygraph results indicated no deception and concluded that he did not believe Jeffrey had sexually abused Joey.
Snow also noted that both Marcia and Jeffrey had a reported history of substance abuse.
On August 18, 2000, two days after Jeffrey completed his polygraph test, Marcia left the State with Joey. Marcia's mother informed Snow that Marcia did not intend to return and that she had taken Joey in order to protect him from Jeffrey. Snow later learned that Marcia had taken Joey to Arizona. Marcia returned to Washington state in November 2000.
In addition to investigating the sexual abuse allegations, Snow also discovered that both Marcia and Joey had suffered physical and emotional abuse at the hands of Marcia's former boyfriend, who was also the father of Marcia's daughter Samantha, sometime prior to the investigation. Snow concluded that Marcia had been aware her boyfriend had abused Joey but that she had not immediately removed Joey from the situation. Marcia did, however, file charges against her former boyfriend in 1998.
In her preliminary report, Snow expressed concern about Marcia's ability to care for Joey because of her (1) questionable emotional status and stability; (2) prior abusive relationship; (3) admission that she had sold drugs to pay her rent the previous year; and (4) overall poor judgment. Snow found that Jeffrey offered a more stable and secure environment and recommended that he be placed in Jeffrey's care until this investigation was complete and the trial court had the opportunity to evaluate her reports.
In her final report, although Snow recognized that Marcia was trying to stabilize her life and maintain regular visitation with Joey, Snow again expressed concern about Marcia's ability to care for Joey, stating that, "she does not appear to have the emotional resources to provide the care, consistency and stability Joey needs for a healthy development." CP at 9. In addition to personally observing that Marcia's behavior with Joey was inconsistent, Snow noted that the professional visitation supervisor appointed during the investigation period had reported that Marcia "at times appeared `withdrawn' and with `little emotion' during visitation and her behavior was inconsistent." CP at 9. After a hair sample analysis indicated no substance abuse, Snow concluded that Marcia's inconsistent demeanor and presentation were probably related to an underlying mental disorder.
Specifically, Snow found that at times Marcia exhibited a "latency of response, a flatness of affect and an inability to respond in a loving and nurturing manner with Joey," but that at other times she was "animated and interactive and responsive to her son." CP at 9.
Snow concluded that Marcia (1) was "unstable and unpredictable"; (2) did not have the "emotional resources to establish a stable home or maintain consistency in her life"; (3) was not aware of her children's "developmental . . . [or] security needs"; and (4) appeared "to accept her unstable lifestyle as normal" and tended to "normalize neglect and abuse." CP at 10. Ultimately, Snow recommended that (1) the trial court designate Jeffrey as the custodial parent; (2) Marcia have four to six hours of supervised visitation per week with Jeffrey present for supervision; (3) Marcia's parents not be allowed to provide supervision during visitation because they persisted in believing the unfounded sexual abuse allegations; and (4) neither party had the financial resources to support a professional supervisor.
In recommendation four on page six of her final report, Snow suggested:
It is recommended that Ms. Nelson obtain professional mental health treatment focusing on stabilizing her life and establishing appropriate parenting skills. It is recommended that once Ms. Nelson can demonstrate a stability in her life style, including relationships and residence, and obtain a recommendation by her mental health provider, that a parenting investigator be re-appointed to address a modification of visitation.
CP at 11. Snow also offered to conduct the reinvestigation at no additional cost if necessary.
II. June 29, 2001 Parenting Plan
On June 29, 2001, after considering Snow's reports, the trial court entered a final parenting plan awarding Jeffrey custody of Joey and restricting Marcia's visitation under RCW 26.09.191. Specifically, the trial court restricted Marcia's visitation because it found that she (1) had engaged in "[p]hysical, sexual or a pattern of emotional abuse of the child"; (2) was involved in abusive use of conflict creating a danger of serious damage to Joey's psychological development; and (3) had withheld Joey from Jeffrey's access for a protracted period without good cause. CP at 20.
The trial court granted Marcia four hours of supervised visitation with Joey every Saturday, and provided that Jeffrey was to supervise the visitations "pending appointment of an agreed upon supervisor." CP at 20. The trial court also granted Marcia four hours of supervised visitation on her birthday. The trial court further provided that "As per [Snow's] report dated June 3, 2001, page 6 #4, mother after receiving mental health treatment may bring a modification action." CP at 23.
III. Motions Relating to Visitation and Supervision Issues
On October 8, 2002, Marcia brought a contempt action against Jeffrey, alleging that he was not complying with the ordered visitation schedule. Jeffrey responded by moving for the appointment of a professional supervisor, alleging that Marcia had not cooperated with his attempts to facilitate visitation and that she had refused to agree to another supervisor.
A court commissioner heard these motions and entered an order denying Marcia's motion for contempt and ordering that Jeffrey supervise alternating visitations, that a professional supervisor supervise the remaining visitations, and that the parties share the cost of the professional supervisor. The commissioner also reserved ruling on whether Snow should be reappointed, apparently to evaluate whether the supervision restriction should be lifted, pending reports from the professional supervisor.
IV. Motions to Revise Commissioner's Order
Both parties moved to revise the commissioner's order. The trial court heard these motions on November 22, 2002.
Marcia's motion to modify the commissioner's ruling is not part of the appellate record.
During argument, the parties discussed the visitation restrictions and Snow's reports. After the trial court expressed concern about the visitation restrictions in light of Marcia's inability to pay for professional supervision, the parties briefly addressed whether Marcia had met the conditions required to modify the supervision requirement.
Specifically, the court stated:
I think we need to get beyond the characterization and really look at the reality. The reality is we don't terminate people's rights. There hasn't been a petition for termination of rights. This effectively is terminating her rights, because she can't afford to pay the costs of supervision. The order contemplated that dad would supervise until such time as they got a professional supervisor on board, and that's not happening because of other issues.
Report of Proceedings (11/22/02) at 6-7.
The trial court then (1) ruled on the motions to revise the commissioner's ruling; (2) ordered that the parties submit the issue of who must supervise Marcia's visitation to dispute resolution; and (3) ordered the parties to "appear before [the] court within 120 days of this order's entry to review Mother's progress in following GAL/PI Judy Snow's recommendations" adopted in the June 29, 2001 parenting plan. CP at 58.
V. Marcia's Compliance with the June 29, 2001 Parenting Plan Requirements
After dispute resolution failed to resolve the visitation issue, Jeffrey moved for review of the trial court's November 22, 2002 order and responded to the issue of Marcia's compliance with the June 29, 2001 parenting plan requirements. The trial court heard this matter on March 28, 2003.
In a written declaration, Jeffrey alleged that he had no information showing that Marcia had complied with the parenting plan requirements. Also in his declaration, he requested that the trial court order Marcia to comply with these requirements and asked that the trial court reappoint Snow as the parenting investigator if Marcia "request[ed] relief that is outside of the existing parenting plan." CP at 63.
In a responding declaration, Marcia asserted that she had made progress toward meeting the parenting plan requirements. She requested that the trial court either remove the supervision requirement or review the issue again in 120 days after she had the opportunity to obtain further mental health treatment.
Specifically, Marcia alleged that her home life and personal relationships were now stable and that she was attempting to obtain counseling or therapy. She described and provided photographs of her home, a trailer purchased for her by her parents, and provided a declaration from the manager of her mobile home park establishing that she had been a responsible tenant and that she maintained her trailer and the surrounding grounds. Marcia asserted that she had demonstrated stability in her relationships by focusing on her family and daughter and avoiding romantic relationships.
Marcia admitted that obtaining mental health treatment had been difficult due to her financial situation. But she alleged that she had recently started attending the YWCA domestic violence program the trial court recommended at the November 22, 2002 hearing. She provided a declaration from the program coordinator stating she had attended the program on February 24, 2003; March 10, 2003; and March 17, 2003.
Finally, Marcia alleged that she had attended four therapy sessions in 2002, but was unable to continue therapy due to financial constraints. She provided a declaration from her former therapist establishing that she had attended these therapy sessions in July 2002. Marcia also alleged that she was on a waiting list for a program that would provide free therapy through a public assistance grant she received for her daughter.
At the hearing, her counsel also informed the court that Marcia had been without health insurance for approximately a year but that she had just recently acquired insurance that would assist her in paying for counseling.
After reviewing the parties' declarations and hearing argument, the trial court made the following oral ruling:
The trial court did not hear any testimony.
This case has moved to the point of being beyond ridiculous. We have spent now I think three court hearings arguing about who's going to provide visitation supervision for this child. The end result is the child's not having appropriate contact with the mother.
The facts that led to the guardian ad litem's report back in 2001 were incidents that had occurred previous to that. We are talking incidents now back in 1999 and 2000.
You know, I have seen termination of parental rights cases where parents have had more contact with their kids than Ms. Nelson has been able to have with her son, and this is, I think, to the point of being cruel.
I am going to allow her to have unsupervised contact, alternating weekends, for a four hour period of time. She can have two hour unsupervised contact during mid week, period of time on a Wednesday or Thursday evening of her choice, from 5:00 to 7:00 p.m. That contact shall occur in a public place, either a mall or the Odyssey One, or park as the weather is improving, et cetera. But that two hour contact should occur in a public place.
Four hour visitation occur in Mrs. Nelson's residence as long as no male boyfriend acquaintances are present, as long as she is not using drugs or alcohol, obviously, and as long as the living conditions remain appropriate.
It's time to, I think, be fair in this case and to require that the mother be allowed to re-establish a more normal relationship with her child. I don't believe — and I did, in fact, check the judicial information system this morning, there are no new cases involving either parent. Ms. Nelson has no new cases, either domestic violence where she's been victim or involved petition by anyone. And final matter that was done back in 2002 was dismissed in March of 2002, apparently by a former male friend of hers.
I think the concern is that she would allow inappropriate people to have access to this child, subject the child to potential abuse as has occurred at length one time before that. I think concern is alleviated by not allowing any overnight contact at this point. . . .
I would like to review it in four months. I am assuming that everything is going to continue to go well, at least be improved.
RP (3/28/03) at 36-38. The trial court summarized this ruling in a written order but did not issue findings of fact or conclusions of law.
The trial court's written order provided:
It is hereby ordered that:
Marcia Nelson shall have unsupervised visitation with Joey Nelson every other Saturday from 1:00 p.m. to 5:00 p.m. beginning Saturday April 5, 2003. The Saturday visits may take place at Ms. Nelson's home. Additionally, Ms. Nelson shall have unsupervised visitation every Thursday evening from 5:00 p.m. to 7:00 p.m. The mid-week visit shall take place at a public place such as a park or a mall. Ms. Nelson shall provide transportation for the visits. Ms. Nelson shall not allow any male friends or boyfriends to be present during her contact with Joey, and she shall not be under the influence of drugs (non-prescribed) or alcohol during her contact with Joey.
This matter may be set for review approximately four months from the date of this order. At such time, the Court will consider the issue of whether Ms. Nelson's contact with Joey shall be increased if the visits have gone well.
Ms. Nelson's Thursday visits shall begin on April 3, 2003.
CP at 135-36.
VI. Motion for Reconsideration
Jeffrey moved for reconsideration of this order, arguing that (1) the trial court had failed to apply the standards established in the June 29, 2001 parenting plan; (2) the issue of lifting the supervision requirement was not properly before the court; and (3) Marcia had failed to establish that she had complied with the June 29, 2001 parenting plan requirement. He also asked for the court to "recite its Findings of Fact and Conclusions of Law that would support" the order. RP (4/25/03) at 42.
The trial court stated that the visitation supervision issue was properly before it because the parties' dispute was over the supervised visitation requirements and that the court had an "ongoing responsibility in a case where they have imposed pretty severe restrictions on a parenting plan to continue to review those." RP (4/25/03) at 43. The court further ruled that:
I also think that the mother did come forward with evidence showing that she had participated with mental health counseling or sessions that occurred in 2002. She had a referral to the YWCA and participated in their support group.
Her only significant limitation at this point, in my mind, is her financial inability to pay the costs of a supervisor and the parties' inability to agree on someone. These people couldn't agree who it was that would provide supervision, they went to dispute resolution, they brought that issue before the court. And it became, I think, readily apparent that the father was using this as a device to continue to restrict mom's contact with this son. I think that's inappropriate. So, that's my basis for my ruling.
RP (4/25/03) at 44.
In its written order denying Jeffrey's motion to reconsider, the trial court specifically incorporated its oral ruling as its findings of fact and conclusions of law. Jeffrey appeals.
Analysis
Jeffrey contends that the trial court erred in modifying the parenting plan to allow Marcia unsupervised visitation when there was no evidence she complied with the June 29, 2001 parenting plan requirements. We agree.
Generally, we will not reverse a trial court's decision regarding modification of a parenting plan absent an abuse of discretion. In re Marriage of Hansen, 81 Wn. App. 494, 498, 914 P.2d 799 (1996) (citing In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993)). And we will uphold the trial court's factual determinations if they are supported by substantial evidence. McDole, 122 Wn.2d at 610. An abuse of discretion exists if the trial court exercises its discretion "in an untenable or manifestly unreasonable way." McDole, 122 Wn.2d at 610. We conclude that the trial court here abused its discretion in removing the supervision requirement and altering Marcia's visitation schedule.
Although the trial court purported to determine whether Marcia had complied with the requirements of the June 29, 2001 parenting plan, it appears that the trial court did not properly apply the parenting plan's requirements. The parenting plan specifically provided that Marcia would be eligible to petition for modification of her visitation rights if she met the requirements recommended by Snow. As noted above, Snow recommended that Marcia obtain professional mental health treatment and that the court conduct another investigation to re-evaluate the parenting plan when Marcia could demonstrate stability and obtain a recommendation from her mental health provider.
Furthermore, Snow's report clearly shows that Marcia's mental health was a serious concern and a substantial factor in her recommendation that Marcia's visitation be supervised.
We agree that Marcia presented evidence suggesting that she has made great strides in establishing a more stable lifestyle and has greatly improved her personal relationships and her living conditions, and we applaud these efforts. But she presented only minimal evidence that she had obtained any mental health treatment, and she did not supply the trial court with the required recommendation from her mental health provider.
Furthermore, even if Marcia had presented such evidence, the parenting plan clearly stated that modification of visitation was not automatic. Instead, the parenting plan specifically provided that once Marcia had presented the required evidence, the trial court should appoint a parenting investigator to determine whether such modification was appropriate.
Additionally, we note that RCW 26.09.260(9) also suggests that strict compliance with the parenting plan's treatment requirements was mandatory. RCW 26.09.260(9) provides that:
A parent with whom the child does not reside a majority of the time who is required by the existing parenting plan to complete evaluations, treatment, parenting, or other classes may not seek expansion of residential time under subsection (5)(c) of this section unless that parent has fully complied with such requirements.
Section (5)(c) provides for minor modifications of the residential aspects of a parenting plan.
(Emphasis added.)
Although we sympathize with the trial court's concern over the fact that Marcia's financial condition may have impeded her ability to comply with the mental health treatment requirement, because Marcia failed to present the required evidence, the trial court had no basis upon which to request further investigation, let alone modify the parenting plan and remove the supervision restriction. Again, we recognize the important steps Marcia has taken to stabilize her life, and we encourage her to continue to seek services so she can meet the mental health treatment requirements fully. But because Marcia did not present evidence establishing that she had complied with the parenting plan requirements, we reverse the trial court's order and remand for further proceedings to allow the trial court to resolve the issue of who will provide the supervision required under the June 29, 2001 parenting plan.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and QUINN-BRINTNALL, A.C.J. concur.