Opinion
No. 24365-6-III.
April 26, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-3-01342-7, Maryann C. Moreno, J., entered July 8, 2005.
Affirmed in part and reversed in part by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Brown, J.
S.T., born on November 3, 1995, is the son of Steve Thames and Sheila Stevens, now Sheila Emch. In 2004, S.T.'s paternal grandparents, John and Mary Thames, filed a nonparent custody petition seeking custody of S.T. The court awarded custody of S.T. to his grandparents, concluding that S.T.'s placement with his mother would be detrimental to his growth and development. The court also granted the grandparents' request for a restraining order to limit Ms. Stevens's access to S.T.
On appeal, Ms. Stevens contends the court erred by: (1) awarding custody of S.T. to his paternal grandparents instead of his mother; (2) excluding expert testimony proffered by Ms. Stevens regarding the proper placement for S.T.; (3) excluding evidence of Steve Thames's prior convictions; and (4) imposing a restraining order limiting Ms. Stevens's contact with S.T. We affirm the trial court's custody award but reverse the order restraining visitation.
FACTS
S.T. is the son of Sheila Stevens and Steven Thames. S.T.'s parents married a few months after he was born, and S.T. lived with them until they separated in October 1997. After the separation, S.T. lived with Ms. Stevens, except for short periods when he lived with Mr. Thames.
In April 1998, Mr. Thames and Ms. Stevens divorced. Ms. Stevens contends that Mr. Thames prepared the documents and then added information after she signed them. According to Ms. Stevens, the documents provided for joint custody when she signed them, but the documents filed with the court gave custody of S.T. to Mr. Thames.
In the spring of 1999, Ms. Stevens and S.T. moved in with Ms. Stevens's mother. In February 2000, Mr. Thames had S.T. Ms. Stevens contends that Mr. Thames did not tell her how to contact him, but he did call her periodically. Ultimately, Ms. Stevens learned that day care for S.T. was being provided by Kristi Pederson. Ms. Stevens visited S.T. at Ms. Pederson's when she was able to do so. Ms. Stevens also attempted to contact Mr. Thames through his parents.
Later, Ms. Stevens learned that S.T. was staying with Mr. Thames's sister, Diane Macomber, and her husband, Adam. Ms. Stevens testified that she made several attempts to contact Ms. Macomber.
S.T. lived with the Macombers from February 2000 until August 2001. Ms. Macomber testified that it was "very upsetting and chaotic" after S.T. moved in with them. Report of Proceedings (RP) at 39. She described him as "extremely wild, disobedient, [and] destructive." RP at 39. The Macombers filed a third party custody petition seeking custody of S.T. Later, they dismissed the petition when they concluded that they could not continue to care for S.T. out of fear that he would injure one of their children.
Next, S.T. lived with his father. But Mr. Thames returned S.T. to Ms. Stevens for one week. Ms. Stevens gave S.T. back to Mr. Thames until such time as she could obtain a two bedroom apartment. S.T. lived with his father for six to seven weeks. In October 2001, S.T. moved in with his paternal grandparents where he continues to reside.
Ms. Stevens testified that she did not have any contact with S.T. until December 2002, when she went to the Thameses' home to deliver Christmas presents. Ms. Stevens explained that she tried to make contact with S.T. until she moved to Rochester, Minnesota, in late 2003. However, after she moved, Ms. Stevens was unable to make contact with Mr. Thames.
Ms. Stevens and Sean Emch moved to Rochester because Mr. Emch had been hired by the Mayo Clinic. The couple married in 2004. They are raising Ryan, Ms. Stevens's child from a previous relationship, and their biological sons, Evan, who was born in May 2003, and Alexander, who was born in October 2004.
In spring of 2004, Ms. Stevens filed a petition for modification of the divorce decree to obtain custody of S.T. Mr. Thames did not respond to the petition and attempts to obtain service on John and Mary Thames failed. Consequently, Ms. Stevens requested the assistance of law enforcement to obtain physical custody of S.T. The grandparents then filed this action seeking custody of S.T.
All of the parties acknowledge that S.T. is a special needs child. At trial, S.T.'s doctor, Dr. Tammy Ellingsen, explained that earlier there had been suspicions that S.T. had a reactive attachment disorder. Dr. Ellingsen testified that S.T. had encopresis and enuresis, and that both of these conditions have psychological meaning. Dr. Ellingsen also had prescribed Ritalin based on the recommendation of a psychologist. Two psychologists identified oppositional defiant disorder as being present, but neither psychologist made an actual diagnosis.
The Guardian ad Litem (GAL) testified that S.T. regressed after he began to see his mother. According to the GAL, during the 2004-05 school year, S.T. was more troubled, more violent against himself and others, and there was more talk of suicide. The GAL noted that S.T. needed a lot of structure. While the GAL found Ms. Stevens to be a fit parent, the GAL also concluded that S.T.'s growth and development would be adversely affected if he were to live with his mother. The GAL believed S.T. would be psychologically adversely affected if placed with his mother, because her life had been unstable for the last few years. The GAL testified that another move would be detrimental to S.T., however, the GAL believed that S.T. should have contact with his mother. And, the GAL expressed some concern that the home environment at the Thames's house was rigid, unbending, and very structured.
Ms. Stacy Reich, S.T.'s kindergarten and summer school teacher, described how Mary Thames was dedicated to helping S.T. Mary Thames met with Ms. Reich every day after school to discuss S.T.'s behavior and to set up systems to improve his behavior. Ms. Christy Deviveiros, S.T.'s first grade teacher, described how Mary Thames brought S.T. to school and picked him up every day. Ms. Deviveiros stated that Mary Thames was interested in daily updates on S.T.'s work and she would follow up on things at home.
Ms. Sheila Marie Shunter-Johnson, S.T.'s third grade teacher, testified that Mary Thames was very concerned and participated with S.T. on a daily basis. For a time, Ms. Shunter-Johnson and Mary Thames had daily contact. Ms. Shunter-Johnson also observed that there was a correlation between S.T.'s difficult behavior and his mother's phone calls. Ms. Shunter-Johnson tried to make sure that there was a counselor in the building on the day after Ms. Stevens was to telephone S.T. Ms. Shunter-Johnson described several incidents of S.T.'s behavioral problems that took place in April 2004. According to Ms. Shunter-Johnson, S.T. fought, hit a student teacher, chased girls with a wrench, failed to go to the office for detention, and charged into children and tackled them as they returned from a field trip. Ms. Shunter-Johnson stated that S.T. would not have passed third grade without Mary Thames's assistance.
A licensed psychologist, Gary Nissalke, testified on behalf of Ms. Stevens. He determined that it would not be detrimental for S.T. to reside with Ms. Stevens and her family. According to Mr. Nissalke, S.T. wanted to live with his mother, was appropriately bonded to his mother, and was unhappy living with his grandparents. Mr. Nissalke based his opinions on two visits with S.T. and an oral history given by Ms. Stevens.
Mary Thames testified that she considered S.T. a "high-needs" child. RP at 295. Mary Thames observed that S.T.'s behavior would deteriorate after he had contact with his mother. Mary Thames also testified concerning Steve Thames's criminal convictions.
She stated that he had been in prison for over five years.
During the trial, Ms. Stevens offered into evidence certified copies of Mr. Thames's criminal convictions. These convictions were offered to show that the parenting philosophy and methods employed by Mary Thames, which Ms. Thames testified constituted good parenting, had not been effective when applied to S.T.'s father. The court denied admission of the certified copies of conviction but did consider the convictions.
The court granted custody of S.T. to his grandparents. The court did not make a finding that Ms. Stevens was unfit, but, instead, found evidence establishing actual detriment to the child as the result of contact with the mother. The trial court entered a restraining order limiting the child's contact with Ms. Stevens. Ms. Stevens appeals.
STANDARD OF REVIEW
The custody disposition made by a trial court will not be disturbed absent a manifest abuse of discretion. Schuster v. Schuster, 90 Wn.2d 626, 632, 585 P.2d 130 (1978). Discretion is abused when the trial court's decision "is manifestly unreasonable or based on untenable grounds." In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Findings of fact are reviewed for substantial evidence. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).
ANALYSIS
1. Did the trial court abuse its discretion by finding that S.T.'s placement with his mother would be detrimental?
Under chapter 26.10 RCW, a court may award custody of a child to a nonparent in an action against a parent if: (1) the parent is shown to be unfit; or (2) if placement with the parent would result in detriment to the child. In re Custody of Shields, 157 Wn.2d 126, 128, 136 P.3d 117 (2006). When proving detriment, the party must show substantial detriment, a test that will be met only in extraordinary circumstances. Id. at 145.
Ms. Stevens contends that the evidence does not show substantial detriment or extraordinary circumstances. Ms. Stevens maintains that the court concluded that a change in placement would be detrimental, not that placement with the mother would be detrimental. Also, Ms. Stevens asserts the court's custody decision was based on allegations as to her past misconduct, despite the fact that the court found her to be a fit parent.
Ms. Stevens's arguments are unpersuasive. The court determined that S.T.'s difficulties were not caused by the parties or other people in S.T.'s life. The court did not base its decision on alleged past conduct by Ms. Stevens. Instead, the court determined that the contact with Ms. Stevens caused detriment to S.T.
The evidence supports the trial court's determination. S.T. has significant behavioral problems. His third grade teacher testified that there was a correlation between S.T.'s difficult behaviors and telephone calls from his mother. The GAL explained that S.T. needed significant structure and that S.T. regressed after he began seeing his mother. The GAL stated that during the 2004-05 school years, when S.T. was in contact with his mother, S.T. was more troubled, was more violent, and talked more about suicide. According to the GAL, S.T. would be adversely affected psychologically if placed with his mother.
The trial court considered the evidence and applied the proper standard. Ms. Stevens fails to show that the court abused its discretion by placing S.T. with his grandparents.
2. Did the court err by excluding the testimony of Gary Nissalke?
Ms. Stevens contends the court erred by rejecting Mr. Nissalke's testimony.
The court did not reject the testimony of Mr. Nissalke, instead, the court "wasn't all that impressed with him." RP at 612. The court stated: "I don't believe he had a full picture of the true situation with regard to this young man." RP at 612. The court agreed with Mr. Nissalke on some points. But the court also noted that Mr. Nissalke met with S.T. on only two occasions, that Mr. Nissalke did not do any psychological testing, and that he was not furnished with information from other health care providers.
Ms. Stevens next argues that Mr. Nissalke was the only expert to testify on the limited issue of detriment to S.T. if he were placed with his mother. She asserts that the court must rely on experts to make objective evaluations. Ms. Stevens relies on In re Custody of Stell, 56 Wn. App. 356, 783 P.2d 615 (1989).
In Stell, the trial court appointed a clinical psychologist to evaluate the family and make a recommendation. The psychologist determined that it would be detrimental to the child to be returned to the father. Nevertheless, the trial court denied the aunt's petition for custody and awarded custody to the father. On appeal, the court held that the trial court had erred by disregarding the psychologist's opinion testimony when there was no rebutting or controverting testimony. Id. at 368.
Stell cannot be read to require expert testimony on detriment. Because of the actions of the trial court, Stell was primarily concerned with the trial court's refusal to give any credence to experts. In Stell, the appellate court concluded that the trial court had "refus[ed] to give any credence to the overwhelming and unrebutted expert testimony o[n] detriment." Id. at 369. The appellate court later explained that it did not condone the court's refusal to consider repeated unanimous independent expert opinions. In the appellate court's view, the trial court "remained fixed in a position virtually unsupported by anything but the most speculative and conclusive testimony." Id. at 371. Stell did not hold that only experts may testify about detriment to a child.
Here, the court heard direct testimony on detriment from the GAL, the teachers, Diane Macomber, and the Thameses. Ms. Stevens cites no authority to support her position that only experts can testify on the issue of detriment.
Moreover, even if we assume that testimony of an expert is required, a trial court has the discretion under ER 702 to allow a GAL to give opinion testimony. In re the Guardianship of Stamm, 121 Wn. App. 830, 837, 91 P.3d 126 (2004). "In effect, [the GAL] acts as a neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that family who can offer a commonsense impression to the court." Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380 (1997).
The court did not err in its treatment of Gary Nissalke's testimony.
3. Did the court err by excluding evidence of the father's criminal convictions?
We review the trial court's admission of evidence for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995).
Ms. Stevens contends that the court abused its discretion by failing to admit certified copies of the father's criminal convictions. We disagree. The court heard evidence about the father's convictions and the court referred to these convictions in its oral ruling. Simply put, the convictions were in evidence and were considered by the court. The court did not abuse its discretion by failing to admit the certified copies of the convictions.
4. Did the court err by entering a restraining order precluding the mother from having any contact with the child?
A parent who is not granted custody of a child is entitled to reasonable visitation unless the court finds that the parent has engaged in conduct that constitutes (1) "willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions," (2) "physical, sexual or a pattern of emotional abuse of a child," (3) "a history of acts of domestic violence or an assault or sexual assault that causes grievous bodily harm or fear of such harm," or (4) "the parent had been convicted as an adult of a sex offense." RCW 26.10.160 (emphasis added).
The trial court did more than limit Ms. Stevens's contact with S.T. Here, the trial court restrained Ms. Stevens from having any contact with S.T. And, the trial court did not make the findings required under RCW 26.10.160. In the court's findings of fact and conclusions of law, the court found a "[s]ubstantial failure to perform parenting functions over an extended period of years." Clerk's Papers (CP) at 94. This finding is insufficient to support an order limiting visitation.
The Thameses argue that the appropriate finding can be found in the residential schedule which states that the mother's residential time with S.T. shall be limited or restrained completely because she has engaged in misconduct consisting of: (1) "A substantial refusal to perform parenting functions;" and (2) "A pattern of emotional abuse of a child." CP at 87. But the court's order limiting Ms. Stevens's visitation with S.T. had to be based on the court's findings of fact and conclusions of law, not the residential schedule. The court's order restraining visitation is reversed.
Ms. Stevens next contends that the effect of the order is permanent because of the following language:
Regarding mother, Sheila R. Emch, there shall be no visitation until further order of the court; provided, however, the parties may begin visitation arrangements pursuant to any plan proposed by the child's doctor, counselor, therapist, or treatment specialist; such plan reviewable by the Court on motion of petitioners or respondent, Sheila Emch.
CP at 87.
Ms. Stevens argues that this order is permanent because the trial court has no authority over persons who are not parties to the litigation and the order requires only that the parties "may begin visitation." Because the order restraining visitation is invalid, the court can revisit this issue on remand.
Ms. Stevens requests attorney fees under RCW 26.10.180. This statute applies when a child is taken, enticed or concealed and does not apply here.
We affirm the order of custody, but reverse the order restraining visitation.
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.
Kulik, J.
WE CONCUR:
Sweeney, C.J.
Brown, J.