Opinion
Nos. 26279-1-III; 26280-4-III.
August 5, 2008.
Appeals from judgments of the Superior Court for Kittitas County, Nos. 06-3-00073-7 and 06-3-00074-5, Scott R. Sparks, J., entered May 31, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, JJ.
In this consolidated appeal, Mende Elaine Johnson Dias Smith appeals the parenting plan and other orders pertaining to children she had with Kenneth Johnson and Joseph Pierce. We reject her numerous contentions and affirm.
We note that in the latest documents filed with this court, the appellant refers to herself as Mende Smith.
FACTS
Mr. Johnson and Ms. Smith married in 1991 and divorced in 2002. Maitland, Zoe, and Max were born during the marriage. Mr. Johnson is the biological father of Maitland and Zoe. Mr. Pierce is Max's biological father. During 2000, while Mr. Johnson and Ms. Smith were separated, Ms. Smith and Mr. Pierce were involved in a relationship and Ms. Smith became pregnant with Max. Mr. Johnson and Ms. Smith briefly reconciled after Max's birth, intending to raise Max with Maitland and Zoe, but they ultimately divorced. The 2002 parenting plan entered in King County designated Ms. Smith as the primary residential parent of Maitland and Zoe. No formal parenting plan was entered as to Max. The three children primarily resided with Ms. Smith in Kent, Washington.
In 2003, Ms. Smith decided to move to Ellensburg to open a restaurant with her mother. Both Mr. Johnson and Mr. Pierce followed Ms. Smith to Ellensburg to remain close to their children. The children lived with their mother, but regularly stayed with their fathers during this time and the parties were able to negotiate flexible arrangements for seeing the children. During this time, Mr. Pierce worked in Seattle, but commuted to Ellensburg every weekend to visit Max.
The parties were generally amicable until 2006 when Ms. Smith decided to move the children to Virginia, apparently expecting the fathers to follow. During the sixth grade, Maitland had begun to exhibit anxiety and one counselor raised the possibility that Maitland might have Asperger's disorder, a high functioning form of autism. Ms. Smith had family in Virginia and learned that the University of Virginia had a program for the diagnosis and treatment of autism disorders. However, Mr. Johnson was not convinced that Maitland had Asperger's disorder and believed that Ms. Smith just wanted an excuse to move.
Both fathers opposed moving the children to Virginia. On June 14, 2006, Mr. Johnson filed a petition for modification of the 2002 parenting plan due to a substantial change in circumstances. He stated that Ms. Smith "has indicated that she plans to leave the state of Washington within the next week or two. A temporary order is needed to prevent her from taking the children out of the state without first providing the required notice under the relocation statute and allowing father to be heard on the issue." Clerk's Papers (CP) at 428. He also proposed that he be designated the primary custodian of Maitland and Zoe. On the same day, Mr. Pierce moved the court for a temporary order enjoining Ms. Smith from removing Max from Washington and filed a petition to establish a parenting plan designating him the primary residential parent.
On June 14, the court signed ex parte orders restraining Ms. Smith from taking the children out of Washington State. Ms. Smith responded by requesting a protection order prohibiting Mr. Pierce from contacting Max. The order was ultimately dismissed. She unsuccessfully attempted to obtain two more restraining orders against Mr. Pierce.
In June, the court permitted Ms. Smith to travel out of state with the children on July 5 provided she returned by July 26. A review hearing was scheduled for July 31. On July 31, Ms. Smith was not present in court. The court continued the hearing for two weeks, and ordered Ms. Smith to be present and the children returned to Washington.
On August 1, Ms. Smith filed notices of intended relocation of the children, stating that as of July 25 she intended to relocate the children to Virginia. She explained that she could not provide the required 60 days' notice because Maitland had recently been diagnosed with Asperger's disorder at the University of Virginia. On August 11, both fathers filed declarations opposing the proposed relocation. At the hearing on August 14, the court orally denied Ms. Smith's motion to temporarily relocate the children and ordered that temporary parenting plans be prepared.
On August 25, Mr. Johnson and Mr. Pierce noted a September 11 hearing to present temporary parenting plans. On September 11, the court denied Ms. Smith's relocation request, stating that notice was untimely and the circumstances did not warrant Page 5 relocation prior to trial. The court entered temporary parenting plans for both fathers and ordered the children to be enrolled in the Ellensburg school district. Ms. Smith was designated the primary residential parent. At some point during this time, the fathers got a house together so the children could stay together during visits.
On September 21, Ms. Smith filed CR 59 motions for reconsideration of the court's September 11 orders. Both fathers filed contempt motions requesting that Ms. Smith be restrained from taking the children out of the Ellensburg school district and flying them to Virginia. They had evidence that she had purchased airline tickets for the children and believed that she intended to leave the state with them.
On September 27, the court issued ex parte restraining orders which temporarily transferred custody of the children to the fathers until a hearing could be held on October 2. At the hearing, the court was advised for the first time of Ms. Smith's CR 59 motions. The court denied her motions, but returned the children to Ms. Smith upon her assurance she would not remove them from the state. In its written order the court noted that Ms. Smith had failed to give a copy of her CR 59 motions to the court or schedule a hearing.
During the three-day trial in January 2007, the court addressed three main issues: Ms. Smith's request to relocate the children, Mr. Johnson's request for a modification of the 2002 parenting plan, and the fathers' requests for entry of parenting plans designating them the primary residential parents. Several witnesses from the Ellensburg school district testified about Maitland's anxiety at school and poor attendance in the fall of 2006. Benaya Allison, a school psychologist who evaluated Maitland, testified that he was exceptionally bright, but that he hated crowds and often arrived late to school. She concluded that Maitland did not need special school services.
One of Maitland's teachers wrote that Maitland needed stability and it would be "devastating" to move him. CP at 106. She also knew Zoe and opined that "it is in the best interests of the children to stay here, where they have grown up." CP at 106. She wrote that she had met both parents, but that it was Mr. Johnson who showed up for school functions such as open houses and evening performances, and helped Maitland with homework. She wrote, "I feel that [Mr. Johnson] has been the most involved in their school lives. If the court found it necessary to award [Mr. Johnson] full custody, I would support the decision. Once again, my main concern is to keep the children in Ellensburg in as stable and structured an environment as possible." CP at 106.
Annette Gronlund, the guardian ad litem (GAL), did not believe the children should be moved to Virginia because they needed consistency and structure, particularly Maitland. She noted that the fathers were regularly involved in the children's lives and a move would hamper their participation.
Ms. Gronlund had many concerns about Ms. Smith's parenting. She believed Ms. Smith was trying to align the children against the fathers and discussed court proceedings with them, especially Zoe. She noted that Zoe was inappropriately aligned with her mother and that Ms. Smith discussed her personal life with her. The GAL was troubled that Zoe was leaving messages for Mr. Johnson urging him to stop "hurting mommy." Report of Proceedings (RP) (Jan. 23, 2007) at 165. Zoe also told Ms. Gronlund that she did not care if her dad was upset if they moved to Virginia because of what he had done to her mother. The GAL was also concerned that Ms. Smith told the children that Virginia was the only place where Maitland could get help.
The GAL also noted Ms. Smith's disregard of the "benefit of the fathers in her children[']s lives. . . . Fathers who want to be involved in their lives and they have that right to be involved in their lives. I don't think that she feels that they have that right to be involved in their lives." Id. at 171-72. She recommended counseling to address the issue. She was also concerned about Ms. Smith's apparently retaliatory requests for restraining orders against Mr. Pierce prohibiting contact with Max.
Finally, she noted Ms. Smith's history of instability, which included frequent moves and involvement in numerous failed business schemes. Despite Ms. Smith's problems, the GAL recognized the strong bond between the children and their mother and recommended that she be their primary residential parent.
Susan Wenger, a mental health therapist, saw Maitland between November 2005 and February 2006. She testified that he suffered from extreme anxiety, and needed a calm environment, consistency, and structure. She recommended further testing regarding the possibility of Asperger's disorder.
Mr. Johnson testified that he opposed Ms. Smith's move to Virginia because he did not want to be separated from the children and believed they needed stability. He testified that Ms. Smith had a pattern of frequent moving and that he had followed her to Ellensburg to be near the children. He testified that when Ms. Smith first told him about her proposed move to Virginia, she expected him to follow even though he had established himself in Ellensburg.
Mr. Johnson also testified about Ms. Smith's attempts to alienate the children against him and Mr. Pierce. He stated that Zoe called him and told him to drop the case and that the children were afraid of Mr. Pierce because of the protection orders. The children were also afraid at his house because Ms. Smith told them that someone had committed suicide there.
Mr. Pierce opposed the move to Virginia and testified that he wanted to be Max's primary residential parent. He pointed out that Ms. Smith's first request for a restraining order against him coincided with the order preventing her from leaving Washington. He also believed Ms. Smith was alienating the children because as soon as court proceedings were initiated they became afraid of him. He testified that his relationship with Max deteriorated as soon as he opposed the proposed move to Virginia. During one visit, Max was afraid to get in the car with him because he feared he had guns and would kidnap him. At the time of trial, the fathers were living together in a house and intended to continue to do so for the children.
Ms. Smith testified that she wanted to move to Virginia because Maitland could get treatment at the University of Virginia and she had siblings who lived there. She denied trying to alienate the children from their fathers, but admitted telling Max that Mr. Pierce had guns, that suicide had been discussed around the children, and that she had discussed the case with them.
She also testified that after Max was born she hoped that she and Mr. Johnson could reunite, stating that Mr. Pierce "did not fit in to the life we were all kind of trying to foster together" and tried to tell him that he was "not needed any more." RP (Jan. 25, 2007) at 24, 26. Finally, Ms. Smith testified that she had recently broken up with a man who had lived in their home and been involved in the children's lives for two years. At the time of trial she was seeing another man and discussing marriage.
On February 7, 2007, the court issued its memorandum decision pending final orders, which were entered on March 26. The court denied Ms. Smith's request to move the children, but designated her as the primary residential parent. The court incorporated the current temporary parenting plans for the children. However, in a footnote on the last page of the decision, the court noted: "If the situation changes drastically after entry of this Memorandum and prior to entry of final orders then the court could hold an evidentiary hearing, consider such evidence pursuant to CR 59(a)(4), and modify this decision." CP at 220.
On February 20, Ms. Smith filed a motion for reconsideration, claiming she had new evidence regarding Maitland's condition and attached a letter to the judge asking to relocate to Seattle. At some point before the end of February, Ms. Smith moved the children to Seattle without obtaining court approval.
On March 2, the fathers filed motions to restrain Ms. Smith from moving to Seattle with the children. Mr. Pierce stated that Ms. Smith's former boyfriend had informed them that sometime in February she had left her Ellensburg apartment and moved the children to Seattle. Mr. Johnson's declaration stated that Ms. Smith called him after the court issued its February 7 memorandum decision and informed him that she was moving to Seattle with the children. She told Mr. Pierce that she had signed a lease on housing in Seattle and planned to move in with a new boyfriend. The court entered ex parte restraining orders enjoining Ms. Smith from removing the children from Kittitas County and scheduled a hearing for March 15.
On March 14, Ms. Smith filed declarations explaining that she believed she had only been forbidden to move to Virginia. She stated that she discussed relocation with both fathers and notified them of her intent to relocate to Seattle with her new boyfriend. She wrote, "It is my right to move away from the small town" and that she could not be expected "to reverse all of the arrangements I have made for my family." CP at 244, 791, 792.
On March 16, the court extended the restraining orders another two weeks. On March 26, the court held a hearing to enter final orders. At the outset, it informed the parties that its memorandum decision was not its final order and that it was prepared to enter final orders that day. It also noted that Ms. Smith's request to move to Seattle was not properly before the court and set a hearing for April 11 to address the issue. The court was surprised that Ms. Smith had not returned the children to Ellensburg, and upon hearing of this fact notified the parties that at the April 11 hearing it would address the propriety of the relocation that had already occurred and whether custody should be transferred to the fathers.
The court entered its final findings and conclusions. It denied Ms. Smith's request for relocation, stating that the children must remain in Ellensburg and attend school there. However, the parenting plans provided that Ms. Smith would remain the primary residential parent.
The fathers filed CR 59 motions to reconsider the final orders based on the new evidence that "the mother has again violated the court orders and moved the children out of the Ellensburg area." CP at 282, 829. Before the April 11 hearing, Mr. Pierce filed a declaration asking that the fathers be granted custody of the boys.
At the April 11 hearing, the court reconsidered its previous orders based on the new evidence and vacated the March 26 orders. It ordered the children to reside in their fathers' house, gave the fathers sole decision-making authority, limited Ms. Smith's contact with the children to 8 hours every other week of supervised visitation, and ordered Ms. Smith to undergo a psychological evaluation.
The court's May 14 revised findings and conclusions and parenting plans reflected these changes. It based its restrictions on Ms. Smith's time with her children due to her proven inability to put her children's needs before her own, her repeated violations of court orders, and her need for a psychological assessment and treatment.
The court's revised findings noted: (1) a substantial change in circumstances since trial occurred, (2) the mother has moved the children to Seattle without prior approval of the court and without proper notice to the fathers, (3) the mother did not return the children to Ellensburg after being served with a court order requiring her to do so, (4) the mother has moved a new boyfriend into the home where she and her children reside, (5) the mother has shown that she cannot provide a stable environment for these children, (6) it is in the best interests of the children to reside in their fathers' home in Ellensburg, and (7) the mother should have supervised visitation with the children and undergo a psychological evaluation. Ms. Smith's motions for reconsideration were denied.
Ms. Smith appeals the court's revised findings and conclusions, the restraining orders, the final parenting plans, and the denial of her motions for reconsideration.
ANALYSIS
We review trial court decisions dealing with the welfare of children for abuse of discretion. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Ms. Smith first contends that the court violated her due process rights because it placed Max with Mr. Johnson, a third party. She argues that the court failed to make the required findings for a third-party placement. However, Ms. Smith's reliance on Washington's third-party custody statute is misplaced. Third-party custody involves a nonparent seeking custody of a child who is not in the physical custody of one of his parents. RCW 26.10.030. The court ordered that Max be placed with his father, Mr. Pierce. Mr. Pierce was also granted all decision-making authority. Max has never been in the custody of someone other than a biological parent. Accordingly, the third-party custody statute does not apply. We conclude that Ms. Smith's due process rights were not violated.
Next, Ms. Smith contends that the trial court's failure to hold a hearing regarding her February 20, 2007 request to relocate the children to Seattle violated her constitutional due process rights. She concedes that the notice to the fathers did not precisely conform to the statutory requirements under RCW 26.09.440, but that her CR 59 motion and an attached letter substantially complied with notice requirements.
We reject Ms. Smith's argument. First, contrary to her claim, the court did address her request to relocate the children to Seattle. Even though it noted that Ms. Smith's request was not properly before the court, it explicitly informed the parties that it intended to address Ms. Smith's request to relocate the children to Seattle and entered an order ordering the parties to be prepared to address the issue at the next hearing.
Furthermore, Ms. Smith did not substantially comply with the notice requirements of CR 59(b) or the relocation statute. Substantial compliance is "'actual compliance in respect to the substance essential to every reasonable objective of [a] statute.'" City of Seattle v. Pub. Employment Relations Comm'n, 116 Wn.2d 923, 928, 809 P.2d 1377 (1991) (alteration in original) (quoting In re Habeas Corpus of Santore, 28 Wn. App. 319, 327, 623 P.2d 702 (1981)). Generally, noncompliance with a statutory mandate is not substantial compliance. Crosby v. Spokane County, 137 Wn.2d 296, 971 P.2d 32 (1999). In cases where courts have found substantial compliance, there has been actual compliance with the statute, but with minor procedural faults. Cont'l Sports Corp. v. Dep't of Labor Indus., 128 Wn.2d 594, 602, 910 P.2d 1284 (1996).
CR 59(b) states in pertinent part: "A motion for a new trial or for reconsideration shall be filed not later than 10 days after the entry of the judgment." Ms. Smith's motion was filed 13 days after the court issued its memorandum decision, and weeks before the court issued its final findings and conclusions and orders on March 26, 2007. "A motion for reconsideration is timely only where a party both files and serves the motion within 10 days." Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 367, 849 P.2d 1225 (1993). Ms. Smith's total failure to comply with CR 59(b) cannot be deemed substantial compliance.
Ms. Smith also failed to follow statutory requirements for filing a notice of relocation. RCW 26.09.440 provides that a notice of an intended relocation of a child must be given by personal service or any form of mail requiring a return receipt, and no less than 60 days before the date of the intended relocation of the child. RCW 26.09.440(1)(a), (b)(i). It also mandates that certain language be included in the notice or it will "not be deemed to be in substantial compliance for purposes of RCW 26.09.470." RCW 26.09.440(2)(a).
Even if we broadly construe RCW 26.09.440, as Ms. Smith suggests, her argument still fails. She failed to meet any of the statute's requirements: she did not personally serve the fathers, provide the required 60 days' notice, include the required language, or include her current address. Under these circumstances, the court did not err in concluding that the fathers did not receive proper service.
Ms. Smith also argues that the court's denial of her request to relocate infringed on her constitutional right to travel, claiming "[n]o case supports the proposition that a court may inhibit a mother to travel to care for her children." Br. of Appellant at 27-28. Ms. Smith's argument is without merit. None of the court orders restricted her right to travel. Rather, they prohibited her from moving the children from Kittitas County. Her right to travel without the children was in no way impeded.
Next, Ms. Smith contends that the fathers improperly filed their motions to reconsider the court's March 26 orders, thus depriving the court of jurisdiction to hear the issue and violating her due process rights to notice. She claims that as a result of the fathers' failure to provide notice, she was surprised when the court informed her at the April 11 hearing that it intended to address the motions.
Ms. Smith again ignores the record. Her claim that she was surprised by the fathers' motions on April 11 is undermined by the record, which establishes that the court informed the parties that it would address the issue of moving the children to Seattle at the next hearing. Under these facts, Ms. Smith cannot complain that her due process rights were violated. She was fully notified of the issues to be heard. We do not address Ms. Smith's jurisdictional argument because she fails to provide argument on the issue. See RAP 10.3(a)(6) (requiring argument in support of issues presented for review).
We next consider whether the trial court erred by denying Ms. Smith's motions for reconsideration of the May 14 orders. A court's decision to grant or deny a motion for reconsideration is reviewed for abuse of discretion. Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 162 P.3d 1153 (2007). A trial court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the legal standard. In re Marriage of Horner, 151 Wn.2d 884, 894, 93 P.3d 124 (2004). Thus, the court must base its decision on the correct legal standard and correctly apply that standard to the facts, which in turn must be supported by the record. Id.
Ms. Smith argues that the trial court erred in denying her motions for reconsideration of the court's May 14 orders under CR 59(a)(1) and (9), which permit vacation of a judgment for an irregularity that materially affects the substantial rights of a party or if substantial justice has not been done. She argues that once the court was advised of the violation of her right to notice, it should have vacated the orders due to the due process violation. However, as discussed above, there was no due process violation because Ms. Smith received notice of the hearing and the issues that would be addressed at the hearing. Accordingly, this did not provide a basis under CR 59(a)(1) or (9) for the trial court to reconsider its final orders.
Ms. Smith next contends that the court lacked jurisdiction to prevent her from moving to Virginia because the fathers failed to properly object to her notices of intent to relocate under RCW 26.09.440. At the outset, we note that Ms. Smith failed to raise the issue below. Therefore, the issue is not preserved for our review. RAP 2.5.
But even if we address her argument, it fails. Ms. Smith ignores the fact that it was she, not the fathers, who failed to follow proper procedures regarding her notices of intent to relocate. At the September 11, 2006, hearing, the trial court concluded that Ms. Smith's notices were untimely. The record supports this conclusion. On August 1, Ms. Smith filed her notices of intended relocation of the children, stating that as of July 25 she intended to relocate the children and explained that she could not provide the required 60 days' notice because she needed to get Maitland to the University of Virginia. Her filing was untimely under RCW 26.09.440(1)(b)(i), which requires 60 days' notice of the intended move.
Ms. Smith next contends that the court erred in handling Mr. Pierce's case because it failed to hold an adequate cause hearing under RCW 26.09.270 and failed to consider the statutory factors listed in RCW 26.09.187 when it issued its memorandum decision and the March 26, 2007 parenting plans. She argues that these failures require this court to vacate the March 26 final parenting plans and the April 11 order.
We find her arguments without any merit. RCW 26.09.270 applies to temporary custody orders, temporary parenting plans, and modifications of custody orders. Mr. Pierce's case involved a request for an initial parenting plan, not a modification or a temporary order. The adequate cause hearing requirement of RCW 26.09.270 is therefore irrelevant here.
In any event, vacation of the March 26 orders is pointless. The trial court has already done so. As to the April 11 order, Ms. Smith does not explain why the court's alleged failure to perform certain analyses when it entered the March 26 orders invalidates the April 11 order. Ms. Smith provides no basis for us to vacate the April parenting plan as to Mr. Pierce.
Ms. Smith next contends that the trial court erred in failing to perform a RCW 26.09.260 analysis when it modified the March 26 final parenting plan changing primary custody of Maitland and Zoe from the mother to Mr. Johnson. We reject her contention because the modification occurred in the context of her relocation request and the Washington Parenting Act of 1987, chapter 26.09 RCW, provides that in a relocation case, it is not necessary for the court to consider the factors contained in RCW 26.09.260. In re Marriage of Grigsby, 112 Wn. App. 1, 15, 57 P.3d 1166 (2002). RCW 26.09.260(6) provides:
The court may order adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child. The person objecting to the relocation of the child or the relocating person's proposed revised residential schedule may file a petition to modify the parenting plan, including a change of the residence in which the child resides the majority of the time, without a showing of adequate cause other than the proposed relocation itself. A hearing to determine adequate cause for modification shall not be required so long as the request for relocation of the child is being pursued.
(Emphasis added.)
Here, Ms. Smith was not only actively pursuing relocation, she had already moved the children in violation of a court order to keep them in Ellensburg. The purpose of the hearing on April 11 was to address her request for relocation to Seattle and the fathers' responding requests for revisions of the children's residential schedules. Under these circumstances, the court was not required to address the modification factors in RCW 26.09.260(2).
Ms. Smith next argues that the court erred in failing to perform a RCW 26.09.187 analysis when it revised the Pierce parenting plan. However, she fails to support her claim with argument or cite the record or any legal authority to support her argument. Without such references, her brief is inadequate for us to consider her argument. See RAP 10.3(a)(6) (requiring argument in support of issues presented for review together with citations to legal authority and references to the relevant part of the record).
But even if we address the issue, Ms. Smith's argument has no merit. The record establishes that, contrary to Ms. Smith's claim, the court thoroughly examined the statutory factors. Former RCW 26.09.187(3)(a) (1989) sets forth the following factors to be considered by the court in making its placement determination:
(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(ii) The agreements of the parties . . .
(iii) Each parent's past and potential for future performance of parenting functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule.
Without detailing the court's extensive findings, we conclude that the court's findings indicate that it addressed each of these factors in great detail.
Finally, Ms. Smith contends that the trial court erred in limiting her parental rights under RCW 26.09.191(1). In the final parenting plans, the court cited the following reasons for restricting her time with the children: "Mother's proven inability to put her children's needs before herself. Mother's repeated violations of court orders. Mother's need for psychological assessment and treatment." CP at 329, 897.
We review a trial court's findings of fact for substantial evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). As long as there is substantial evidence to support a finding, it does not matter what other evidence contradicts it because credibility determinations are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The trial court has broad discretion to fashion the residential provisions for the parenting plan, considering the statutory factors and the child's best interests. RCW 26.09.187.
Additionally, the court is authorized to limit contact between the parent and child where it finds that the "parent's involvement or conduct may have an adverse effect on the child's best interests." RCW 26.09.191(3). The court may consider a parent's long-term emotional or physical impairment which interferes with parenting, the abusive use of conflict, the withholding of the child from the other parent without good cause, or any other factors or conduct the court finds adverse to the best interests of the child. RCW 26.09.191(3)(b), (e), (f), (g).
Ms. Smith first argues that insufficient evidence supports the court's finding that she needs a psychological assessment and treatment. She claims that the only evidence of any psychological problems was Mr. Johnson's statement that she suffers from a personality disorder. Deferring to the trial court's broad discretion in making credibility determinations, we reject her argument, finding the evidence is more than sufficient to support the court's finding that Ms. Smith needed a psychological assessment.
The GAL recommended counseling due to Ms. Smith's instability, disregard of the fathers' roles in the children's lives, her unfounded requests for restraining orders against Mr. Pierce, and her frequent moves and engagement in numerous failed businesses, writing, "[Ms. Smith] has a history of moving from one place to the next when the plans fall through." CP at 195. In her written report, the GAL advised that a mental health professional should work with Ms. Smith on issues of parental alienation and to help her "separate her own feelings and needs from those of her children and working on peaceful resolutions to conflict." CP at 197.
Mr. Johnson corroborated that Ms. Smith moved frequently, engaged in many failed businesses, and demonstrated unstable behavior by blatantly disregarding court orders to keep the children in Ellensburg. Ms. Smith's behaviors support a reasonable inference that she needs a psychological evaluation and treatment.
Next, Ms. Smith contends that insufficient evidence supports a finding that she violated court orders. She argues that she did not violate the court's ex parte March 2 restraining orders prohibiting removal of the children from Ellensburg because "[b]y the time she had received the Ex Parte Order, the children were already in Seattle. . . . Of course, things would have been a [sic] different had she been required to return them to Ellensburg, but the court never instructed her to do so." Br. of Appellant at 44 (footnote omitted). She also argues that the March 2 orders simply prohibited her from moving from Ellensburg, not the children.
The record contradicts Ms. Smith's claim. The court found that Ms. Smith showed a disregard for court orders, "[e]videnced by her failure to return to Washington as ordered and her plans to disregard the visitation schedule spanning the recent Christmas break." CP at 322, 890. The record supports this finding. First, during the summer of 2006, the court permitted Ms. Smith to take the children to Virginia, but ordered that she return by July 26. The court scheduled a hearing for July 31. Ms. Smith did not appear for the court date, requiring the court to re-set the hearing and order Ms. Smith to return with the children to Washington. In the fall of 2006, the court ordered Ms. Smith to enroll the children in the Ellensburg school district. However, Ms. Smith violated this order by refusing to send the children to school that fall, stating that she was simply ordered to enroll the children in the school district, not make them attend school.
In its memorandum decision, the court required the children to reside in Ellensburg. Nevertheless, Ms. Smith moved the children to Seattle, resulting in the March 2 orders prohibiting the move. Despite these orders, Ms. Smith did not return the children to Ellensburg. On March 26, the court entered final orders and parenting plans that required the children to live in Ellensburg and attend school in the Ellensburg school district. Ms. Smith failed to comply with these orders. In view of this record, overwhelming evidence supports the court's finding regarding Ms. Smith's violations of court orders.
Next, Ms. Smith asserts that insufficient evidence supports the court's finding that she is unable to put the needs of her children before her own. To support her argument she points to her efforts to find appropriate treatment for Maitland and claims that her request to move to Virginia and the move to Seattle were based on Maitland's needs.
Nevertheless, the record is replete with evidence that Ms. Smith was not able to put the needs of her children before her own. The court found that Ms. Smith alienated the children from their fathers, noting she discussed all phases of the court proceedings with them and filed three protection orders to prevent Mr. Pierce from having any contact with his son. The court's findings are amply supported by the record.
Ms. Smith's own testimony reveals her inability to put the needs of her children first. First, she failed to recognize the importance of the fathers in the children's lives. At one point, she had tried to tell Mr. Pierce that he was no longer needed in Max's life. And as to Mr. Johnson she stated, "I do not know how he can believe that his having us there in Washington with his limited funds and few hours per week to visit with the kids in his apartment or mine in King County would benefit Maitland." CP at 442.
However, we are most troubled by Ms. Smith's attempts to turn the children against the fathers. The GAL testified that Ms. Smith minimized the importance of the fathers and inappropriately discussed the case with the children. Zoe was leaving messages for Mr. Johnson urging him to stop "hurting mommy." RP (Jan. 23, 2007) at 165. The record contains letters from the children indicating that Ms. Smith was discussing the case with them. In one letter, Maitland asked his father to move to Virginia. In another letter, Zoe wrote,
Dear Daddy,
After all the nice things mom did for you. It wasn't fair for you to write that letter to Kluge. Maitland needs to finish his I.E.P. and you know it. This time I hope this letter means something to you. . . . To me it seems your friends are more important to you than we are. Your only daughter. Zoe Johnson
P.S. HOW RUDE!!
CP at 103, 532.
Mr. Pierce and Mr. Johnson both testified that Ms. Smith alienated the children from them. Mr. Johnson stated that Zoe called him and asked him to drop the case. He testified that the children were afraid at his house because their mother told them someone had committed suicide in the basement. Mr. Pierce testified that after he requested custody of Max, Ms. Smith filed three baseless restraining orders against him prohibiting contact with Max. He also testified that the children became afraid of him during this time.
Ms. Smith did not deny discussing the case with the children, she admitted that she told Max his father had guns, and that suicide had been discussed around the children. In view of the record, the trial court's findings are supported by substantial evidence and the findings in turn justify the limitation on Ms. Smith's time with the children.
CONCLUSION
We conclude that all of Ms. Smith's contentions lack merit. Accordingly, we affirm.
A majority of the panel has determined that 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.
KULIK, J. and KORSMO, J., concur.