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State v. McLemore

The Court of Appeals of Washington, Division One
Oct 15, 2007
141 Wn. App. 1008 (Wash. Ct. App. 2007)

Opinion

No. 59433-8-I.

October 15, 2007.

Appeal from a judgment of the Superior Court for King County, No. 02-5-02121-3, Laura Gene Middaugh, J., entered December 19, 2006.


Affirmed by unpublished opinion per Coleman, J., concurred in by Becker and Cox, JJ.


Alissa Beasley's daughter, L.B.-M. resided with L.B.-M.'s paternal aunt, Zelma McLemore, until Beasley petitioned to modify the parenting plan in 2005. Although Beasley's petition did not meet the standards necessary for modification under RCW 26.09.260, the trial court found that the language in the parenting plan created an alternate modification process whereby Beasley could request modification once she completed a drug rehabilitation program. McLemore appeals the modification order, contending that because the parenting plan does not expressly waive the RCW 26.09.260 requirements, the trial court was required to apply the statute. We conclude that the parenting plan sufficiently specifies a modification procedure alternative to the statute, and we therefore affirm.

Beasley recently married and changed her name to Alissa Beasley Stewart. For the sake of continuity with the court records throughout the history of this case, this opinion refers to L.B.-M.'s mother as "Beasley."

FACTS

Beasley gave birth to L.B.-M. in December 2000. Beasley used drugs during this time period. Sometime shortly after L.B.-M. was born, Beasley left her in the care of L.B.-M.'s father's sister, McLemore, and thereafter visited sporadically. An agreed parenting plan was entered in June 2004, after McLemore had petitioned for third-party custody and the State had filed a paternity action on behalf of L.B.-M. The parenting plan stated that neither of L.B.-M.'s parents was fit to parent, so McLemore was designated as L.B.-M.'s custodian. The parents would continue to have supervised visitation, provided they continued to participate in treatment programs. In its "dispute resolution" section, the parenting plan states,

Both parents have treatment programs and specific issues whereby they must provide proof to the court before any change of the residential schedule occurs. The issue of any change in custody or residential schedule may occur upon either parent bringing a proper motion or petition before the court.

Clerk's Papers (CP) at 6.

After Beasley had completed a yearlong drug rehabilitation program, she petitioned to modify the parenting plan in June 2005. As major modifications, she requested some residential time with L.B.-M. and decision-making authority; as a minor modification, she requested unsupervised visitation during the time L.B.-M. resided with McLemore. Beasley claimed she was entitled to a modification hearing "on a lower threshold showing because of her constitutionally protected ? rights as a parent." CP at 25.

At a subsequent adequate cause hearing, the commissioner found that under the parenting plan modification statutes, Beasley's petition established adequate cause for the visitation schedule modifications but not the major modifications to the residential schedule and the decision-making authority. Beasley moved for revision of the commissioner's order, arguing that the parenting plan modification statutes were unconstitutional as applied in this case "because the statutes apply equally to parents and nonparents and do not provide parents in nonparental custody cases the same due process protections given to parents in termination cases." CP at 691. In an alternative argument for revision, Beasley contended that the parenting plan waived the need for a showing of adequate cause because it stated that modification may occur "upon either parent bringing a proper motion or petition before the court." CP at 6.

The trial court reviewing the commissioner's order acknowledged that RCW 26.09.260 governed Beasley's modification petition, but concluded that the statute was "constitutionally infirm."

[I]t seems to be that there is no way that I can deny a finding of adequate cause to the mother under the statute consistent with her constitutional rights. Something has to be done, in other words, in a situation like this where a fit parent moves for modification of a parenting plan that gives custody to a third party non-biological parent. The failure of the statutes to acknowledge the constitutional presumption, or really to acknowledge the parent's liberty interest at all under substantive due process clause of the 14th Amendment, to my way of thinking, means that both of these statutes are unconstitutional as applied.

CP at 702. The trial court permitted the modification petition to go forward for a full hearing, finding that Beasley "has established adequate cause for a major modification of the parenting plan based on the constitutional infirmity of RCW 26.09.260(1). . . ." CP at 693. The trial court stated that it was unclear what standard should apply at trial to determine whether modification should be granted, but instructed the parties to consider this issue and brief it at trial.

At the modification hearing before a different judge, McLemore contended that the RCW 26.09.260 standards must be applied to Beasley's petition. Beasley argued that because of her status as L.B.-M.'s parent, the trial court could deny the petition only if McLemore could establish that severe and actual detriment would result from the proposed custodial change. The trial court focused on the dispute resolution section of the parenting plan, interpreting it to mean that the agreed plan contemplated that modifications would not be subject to the modification statute, but that modification would occur upon either parent's request after successfully participating in the programs and services ordered in the plan. Based on this interpretation of the parenting plan, the trial court stated that a "best interests of the child" standard (not the detriment standard proposed by Beasley) applied to Beasley's petition.

The trial court found that modification of the parenting plan would be in L.B.-M's best interest. The court found that the current parenting plan — whereby McLemore was the custodian and Beasley visited frequently — was detrimental to L.B.-M. because while L.B.-M. was developing a bond with Beasley, McLemore failed to foster that bond and routinely interfered with Beasley's exercise of visitation rights. The trial court found that an immediate transfer of custody from McLemore to Beasley would not be in L.B.-M.'s best interest, but instead ordered a transition schedule over a one-year period.

McLemore now appeals the trial court's modification order.

Analysis

The Parenting Plan's Modification Procedure

McLemore argues that the trial court erred in ordering modification of the parenting plan, and further erred by applying a "best interests of the child" standard when considering the modification, because modification was governed by the stricter standards of RCW 26.09.260. She contends that the parenting plan itself demonstrates that the parties intended to follow the statute by referencing a "proper motion or petition" in the dispute resolution section.

Both parents have treatment programs and specific issues whereby they must provide proof to the court before any change of the residential schedule occurs. The issue of any change in custody or residential schedule may occur upon either parent bringing a proper motion or petition before the court.

CP at 6. Beasley contends that this section demonstrates the parties intended to apply a modification process based on a parent's completion of drug treatment — not the satisfaction of statutory modification standards — so the trial court did not abuse its discretion in following the process set out by the plan instead of the modification statute.

The statutory procedures for establishing adequate cause and requesting modification of a parenting plan are set out in chapter 26 RCW. The party petitioning for modification must submit an affidavit supporting the requested modification, and the nonmoving party may file opposing affidavits. RCW 26.09.270. Unless the court finds that the affidavits establish adequate cause for a full hearing of the modification petition, the court shall deny the petition. RCW 26.09.270. The affidavits must assert facts "sufficient to support a finding on each fact that the movant must prove in order to modify; otherwise, a movant could harass a non-movant by obtaining a useless hearing." In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004). A trial court's finding of adequate cause to modify is reviewed for abuse of discretion. In re Parentage of Jannot, 110 Wn. App. 16, 19-20, 37 P.3d 1265 (2002). A trial court abuses its discretion when its decision is contrary to applicable law. Jannot, 110 Wn. App. at 22.

At the modification hearing, a court shall not modify a parenting plan unless it finds that there has been a substantial change in the circumstances of the child or the nonmoving party and modification is in the best interests of the child. RCW 26.09.260(1).

In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless . . . [t]he child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

In addition to this detriment basis, there are three other circumstances that can give rise to modification, but none was argued or found by the trial court: parental consent to modification, the child's integration into the family of the petitioner with the other parent's consent, or custodial interference by the nonmoving parent. RCW26.09.260(2).

RCW 26.09.260(2)(c).

McLemore argues that because the court did not apply the standards set forth in RCW 26.09.260(2), it erred in finding that Beasley had established adequate cause and in ordering modification of the parenting plan. Beasley argues that the parenting plan either required or permitted that Beasley be awarded custody of L.B.-M. once she successfully completed the ordered programs, regardless of whether the modification statute standards were met. Although the trial court apparently interpreted the parenting plan to require the modification after Beasley completed treatment, we agree with an alternative argument briefed by Beasley and interpret the parenting plan to permit the trial court in its discretion to modify the parenting plan upon a parent's request after completing treatment. An appellate court may sustain a trial court judgment on any theory established by the evidence, even if the trial court did not consider it. RAP 2.5(a), In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).

Under its broad power to protect the best interests of the child, a trial court has the authority to specify the terms under which parenting plans may be modified. In re Marriage of Adler, 131 Wn. App. 717, 725, 129 P.3d 293 (2006), review denied, ___ Wn.2d ___, 152 P.3d 347 (2007). Parenting plans may reserve final disposition of a residential schedule for a specified period of time pending significant changes that are expected to occur, at which time the RCW 26.09.187 factors for establishing parenting plans can be applied, rather than the RCW 26.09.260 modification standards. Adler, 131 Wn. App. at 725; In re Marriage of Possinger, 105 Wn. App. 326, 19 P.3d 1109 (2001); In re Marriage of Little, 96 Wn.2d 183, 194, 634 P.2d 498 (1981).

RCW 26.09.187 was recently amended. The statute now reads in pertinent part:
"(a) The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The child's residential schedule shall be consistent with RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of the child's residential schedule, the court shall consider the following factors:
"(i) The relative strength, nature, and stability of the child's relationship with each parent;
"(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
"(iii) Each parent's past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
"(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, and shall make accommodations consistent with those schedules.
"Factor (i) shall be given the greatest weight." RCW 26.09.187(3)(a).

The Possinger court explained why permitting courts to retain jurisdiction to enter a permanent residential schedule is consistent with the public policy of parenting plans.

Certainly, the Parenting Act read as a whole expresses a legislative preference for a detailed permanent parenting plan to be entered at the time of final decree. But as has been true with the predecessor acts dealing with this same subject matter, the best interests of the child standard remains the paramount policy underlying the Act, and our Legislature has so directed in RCW 26.09.002 and .184(1)(g). It would be strange indeed to construe an act designed to serve the best interests of the children of divorcing parents in such a manner as to require trial courts to rush to judgment on insufficient evidence with respect to the children's best interests, or to ignore the fact that the lives of the parents are in such a state of transition that the children's best interests would be served by deferring long-term parenting decisions for a reasonable period of time following entry of a decree of dissolution of marriage.

Possinger, 105 Wn. App. at 336.

In Adler, Possinger, and Little, the parenting plans contained specific terms about the review process. The period within which review could take place was just longer than six months in Adler, one year in Possinger, and six months in Little. In Adler, the plan stated that the residential schedule was subject to modification upon either parent's request "`without the statutorily required showing of a change in circumstances.'" Adler, 131 Wn. App. at 721. In Possinger, the court required the parents to participate in mediation before seeking review of the residential schedule.

This case is different than Adler, Possinger, and Little in that the parenting plan does not provide a timeline or any terms of the review process. Despite the lack of a specific timeline, only one year passed between the time the plan was ordered and Beasley's petition for modification, so the timing of the petition is reasonable. Because the plan refers to modification upon a noncustodial parent's successful completion of a treatment program — which is a situation that would not support a modification petition under RCW 26.09.260 because it is not a substantial change in the circumstances of either the child or the custodian — we conclude that this reference demonstrates that the parties and the court contemplated that modification could take place without meeting the requirements of that statute.

McLemore contends that the section's reference to a "proper motion or petition" indicates that the court intended that a petitioner must comply with RCW 26.09.260, but that language speaks to the form of the modification request and not the standards to be applied to the request. If the court had intended to provide for modification under RCW 26.09.260, there would have been no reason to require a showing that the petitioner had successfully completed court-ordered treatment. While we are convinced that the parties and the court in this case intended the parenting plan to allow this alternative type of modification, courts that intend to provide for an modification process alternative to RCW 26.09.260 should use more specific language like that found in Adler, Possinger, and Little.

McLemore argues that parents cannot simply "contract" around the modification statute and that RCW 26.09.260 must govern every modification petition to ensure that the child's welfare and safety are protected. But Adler, Possinger, and Little make clear that regardless of whether a parenting plan is designated as "final" or "temporary," a court may retain jurisdiction to review or modify a parenting plan either at a parent's request or at a specified time in the future, applying either the criteria required by the modification statute or the criteria for establishing a parenting plan. Either set of criteria gives a court discretion to protect the welfare and safety of the child. While the Adler, Possinger, and Little parenting plans expressly stated that the court retained jurisdiction to review and more specifically created a modification process outside the statutory framework, those cases establish that parenting plans can be subject to a modification or review process that is different than the process provided by RCW 26.09.260.

In this case, the agreed parenting plan provided for modification of the residential schedule if certain conditions that would not support modification under RCW 26.09.260 are met. The child's safety and welfare are still protected by the RCW 26.09.187 criteria, even if RCW 26.09.260 is not applied. Though Beasley argues that the trial court should have required McLemore to establish that the proposed modification would have been detrimental to L.B.-M., we conclude that RCW 26.09.187 sets out the standards to be applied in this situation. Based on the court's uncontested finding that McLemore failed to foster the bond that Beasley was developing with L.B.-M. and the court's uncontested conclusion that modification was in L.B.-M.'s best interest, the trial court's modification order is consistent with RCW 26.09.187. Thus, we affirm the trial court's modification order because the parties agreed to a modification procedure alternative to RCW 26.09.260 set forth in the parenting plan. Attorney Fees

Because we conclude that RCW 26.09.260 does not apply to Beasley's petition, we need not analyze Beasley's contention that the statute is unconstitutional as applied.

Beasley requests attorney fees on appeal under RCW 26.10.080, which provides,

The court from time to time, after considering the financial resources of all parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.

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.

The court may order that the attorney's fees be paid directly to the attorney who may enforce the order in his or her name.

This statute requires a balancing of the parties' respective need and ability to pay. See In re Custody of S.H.B., 153 Wn.2d 646, 105 P.3d 991 (2005).

The financial documents provided by Beasley and McLemore establish that Beasley has a need, but that McLemore does not have the ability to pay. It is true that McLemore's attorneys have been representing her pro bono, but her monthly expenses still exceed her monthly income.

The trial court denied Beasley's request for attorney fees because McLemore did not have the ability to pay, plus she had been bearing the full cost of raising L.B.-M.

Beasley also argues that McLemore's intransigence and her raising a frivolous appeal should support an attorney fee award, but McLemore has not been intransigent and this appeal is not devoid of merit. Because Beasley has not established that McLemore has the ability to pay or that she is otherwise entitled to fees, we deny her request.

For the foregoing reasons, we affirm.

WE CONCUR:


Summaries of

State v. McLemore

The Court of Appeals of Washington, Division One
Oct 15, 2007
141 Wn. App. 1008 (Wash. Ct. App. 2007)
Case details for

State v. McLemore

Case Details

Full title:In the Matter of the Parentage of L.B.-M. THE STATE OF WASHINGTON, on the…

Court:The Court of Appeals of Washington, Division One

Date published: Oct 15, 2007

Citations

141 Wn. App. 1008 (Wash. Ct. App. 2007)
141 Wash. App. 1008