In the Matter of the Custody of E.E. & M.W. ( 2019 )

FILED
DECEMBER 31, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Custody of ) No. 36581-6-III
)
E.E. and M.W. )
)
Minor children, )
)
BRANDI SMITHERS, CHERI )
and PETER JOHNSON, and ) UNPUBLISHED OPINION
JANA JOHNSON, )
)
Appellants, )
)
SARINA J. FAHRNER-PIRKEY and )
MICHAEL D. PIRKEY, )
)
Respondents. )
LAWRENCE-BERREY, C.J. — Four relatives of two children appeal the trial court’s
denial of their motion for adequate cause to modify separate nonparental custody orders.
We conclude the trial court abused its discretion by misapplying the law and by not
considering or improperly discounting relevant evidence. We reverse and direct the trial
court to grant the relatives’ motion for adequate cause.
FACTS
This case involves several family members who either support or oppose
modifying two nonparental custody (NPC) orders. We begin by describing how the key
family members are related.
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Key family members
The family matriarch is Joy Fahrner, who is now 82 years old. From 1957 until
1971, she was married to Al Fox. Their marriage produced five children. Two of the
children are deceased. The living children are Sarina Pirkey, 61, Cheri Johnson, 58, and
Jana Johnson, 57. Sarina is married to Michael Pirkey. Cheri is married to Peter
Johnson. Jana is single.
Sarina has a daughter, Brandi Smithers. Brandi is the mother of E.E., an 11 year-
old-boy. Jana has a daughter, Sarah Wilshire. Sarah is the mother of M.W., a 9-year-old
girl.
For the reader, we provide the following chart to summarize these relationships:
Great Grandma Grandmas/Great Aunts Mothers Children
Joy Sarina (Michael Pirkey) Brandi Smithers E.E. (11)
Cheri (Peter Johnson)
Jana Johnson Sarah Wilshire M.W. (9)
The prior Grant County NPC orders
In July 2015, the Grant County Superior Court entered an agreed NPC order,
granting custody of E.E. to Sarina and Michael (the Pirkeys). As part of this order, E.E.
was to reside in the Pirkeys’ home, and Brandi was granted visitation on Monday and
Tuesday nights in addition to unlimited telephone contact.
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In November 2016, the Grant County Superior Court entered a final NPC order,
finding Sarah Wilshire to be an unfit parent and granting custody of M.W. to the Pirkeys.
November 2018 motion to modify NPC orders
In November 2018, Cheri, Peter, Jana, and Brandi (the four relatives) filed a
petition in Douglas County Superior Court to modify the two NPC orders. The petition
listed numerous reasons why E.E.’s and M.W.’s living situation had become harmful to
them. The claims included the Pirkeys not allowing Brandi any contact with her son,
undermining the children’s relationship with their mothers, not allowing contact between
the children and the rest of the family, and withdrawing the children from important
social contacts by homeschooling them. The four relatives requested custody be changed
to Cheri, Peter, and Jana.
The four relatives filed 12 declarations in support of their petition, including a
declaration by Dr. Mary Dietzen, a well-qualified psychologist with more than 40 years of
experience. Dr. Dietzen did not meet with the children, but based her opinion on
information given to her by Peter and Cheri, including text messages between the
relatives and the Pirkeys, and nearly one year of counseling records from Dr. Terri Greer,
the children’s counselor. Based on this information, Dr. Dietzen opined that E.E.’s
mental and emotional development was being harmed by feelings of abandonment due to
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the Pirkeys’ refusal to allow Brandi to contact him. Additionally, Dr. Dietzen described
emotional and mental harm caused to the children because of the Pirkeys’ choices to
isolate them. Specifically, the Pirkeys refused to allow the children to have contact with
other family members, including their mothers, and interfered with other social
relationships by homeschooling them. Dr. Dietzen concluded:
In summary, I believe there are enough “red flags” in this case that
the Court should intervene. Outside of cases involving children suffering
from physical trauma, this is one of the most egregious cases that I have
seen of children suffering from emotional trauma. And, if the information
that I have been provided is determined to be valid, then I believe that there
are sufficient grounds for a change of custody. I believe that the Court
should find adequate cause and appoint a [guardian ad litem (GAL)] to
gather more information to assist the Court on what is in the best interest of
[E.E] and [M.W.].
Clerk’s Papers (CP) at 52 (emphasis added).
Along with this declaration, the petitioners filed several other declarations,
including declarations from Joy, Cheri, Peter, Jana, Brandi and Sarah. Most of these
declarations raise serious issues about Sarina’s ability to properly parent. The
declarations mostly describe events that occurred before E.E.’s and M.W.’s NPC cases,
including events 30 to 40 years in the past. While the specifics need not be discussed
here, we note that these declarations discuss incidents not raised in either Grant County
NPC case.
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In response to the petition, Sarina filed a two-page declaration in which she
generally denied the incidents and explained that her decisions to disallow contacts with
other relatives and school children were based on advice from the children’s counselor,
Dr. Greer. We note the Pirkeys chose not to include a declaration from Dr. Greer.
In December 2018, the trial court issued a written decision denying the appellants’
motion for adequate cause. In its decision, the court noted that evidence in M.W.’s
contested case was inconsistent with the current declarations, and that the appellants had
an opportunity in both previous cases to voice their concerns. The trial court discounted
Dr. Dietzen’s declaration because she had not interviewed the children. The court wrote:
“[E]xcluding those issues that either were known or should have been known by the Trial
Court in the Grant County matters, [this Court] finds little or no evidence sufficient to
provide adequate cause for the present hearing.” CP at 163 (emphasis added).
The four relatives timely appealed.
ANALYSIS
The four relatives argue the trial court abused its discretion by denying their
motion for adequate cause. Specifically, they contend the trial court applied the wrong
legal standard by excluding facts not considered by the Grant County courts and abused
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its discretion by discounting Dr. Dietzen’s unrebutted professional opinion. We mostly
agree.
A trial court’s determination on adequate cause is reviewed for abuse of discretion.
In re Parentage of Jannot, 149 Wash. 2d 123, 126-27, 65 P.3d 664 (2003). Abuse of
discretion is found only when the decision is “‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” State v. McCormick, 166 Wash. 2d 689, 706,
213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d
775 (1971)). Untenable reasons include errors of law. Cook v. Tarbert Logging, Inc.,
190 Wash. App. 448, 461, 360 P.3d 855 (2015).
Modification of nonparental custody orders is governed by chapter 26.09 RCW.
RCW 26.10.190(1). When seeking to modify a custody decree, a party must submit
supporting affidavits that set forth facts supporting the motion. RCW 26.09.270. The
opposing party may file responsive affidavits. RCW 26.09.270. The court must deny the
motion unless it finds that adequate cause for hearing the motion is established by the
affidavits. RCW 26.09.270.
RCW 26.09.260(1) describes the evidence trial courts may consider when deciding
whether to modify a custody order. According to the statute, courts may only consider
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“facts that have arisen since the prior decree or plan or [facts] that were unknown to the
court at the time of the prior decree or plan . . . .” RCW 26.09.260(1) (emphasis added).
Typically, when entering a custody order, it is presumed the trial court made its
decision based on knowledge of all existing circumstances. In re Habeas Corpus of
Rankin, 76 Wash. 2d 533, 537, 458 P.2d 176 (1969). This presumption allows the trial
court, in a modification hearing, to limit the scope of inquiry to only facts that have arisen
since the original order. However, as explained in Rankin, this presumption does not
apply in certain circumstances. In Rankin, the court reviewed a custody order originally
entered by a default judgment. Id. at 536-37. The Rankin court held that the standard
presumption did not apply when the custody order was entered after a default judgment.
The court explained, in the default setting,
[T]he [trial] court has had no opportunity to observe the two contending
parents upon the witness stand or to examine the evidence concerning their
fitness and concerning the welfare of the child. [In the default setting, the
trial court] must accept the allegations of the petitioner or, at best, the
uncross-examined testimony of the petitioner.
Id. at 536.
The Rankin rule was expanded in In re Marriage of Timmons, 94 Wash. 2d 594, 617
P.2d 1032 (1980). In Timmons, the court held that the Rankin rule applied in cases where
the original custody order was uncontested. Timmons, 94 Wash. 2d at 598. “We conclude
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that, because of the continuing paramount concern for the best interests of the child, the
rationale for the Rankin rule equally applies when the parties join in a petition.” Id. The
court held “unknown facts” under RCW 26.09.260 included predecree facts when the
parties agreed to the custody order. Timmons, 94 Wash. 2d at 599-600.
The four relatives’ motion sought to modify two different NPC orders. The NPC
order for M.W. was tried before the Grant County Superior Court. The NPC order for
E.E. was agreed between Brandi and the Pirkeys.
Here, because the NPC order for E.E. was agreed, the Rankin rule applies. The
trial court misapplied the law by not considering facts unknown to the E.E. trial court.
The Douglas County trial court should have considered those facts, which detail
substantial concerns about Sarina’s ability to parent E.E. and M.W.
When determining whether adequate cause exists for a motion to modify a custody
order, the trial court makes a threshold determination whether the moving party’s
evidence results in “‘something more than prima facie allegations which, if proven, might
permit inferences sufficient to establish grounds for a custody change.’” In re Parentage
of Jannot, 110 Wash. App. 16, 23, 37 P.3d 1265 (2002) (quoting In re Marriage of Roorda,
25 Wash. App. 849, 852, 611 P.2d 794 (1980)), aff’d, 149 Wash. 2d 123 (2003). As explained
below, the declarations provided by the four relatives met this standard.
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The declarations recite postdecree facts that establish substantial concerns—
concerns relating to Sarina’s decision to isolate the children. The trial court did not
discuss these concerns in its written decision. In addition, the trial court discounted Dr.
Dietzen’s opinions, solely because she had failed to speak to the children. Her failure
was understandable. We doubt the Pirkeys would have permitted Dr. Dietzen to speak to
the children, which is why Dr. Dietzen emphasized the need for the court to appoint a
guardian ad litem to investigate the allegations. Also, the Pirkeys did not move to strike
Dr. Dietzen’s declaration. Such a motion would have been denied: An expert witness,
such as Dr. Dietzen, could rely on inadmissible hearsay if such evidence is the type
reasonably relied on by similar experts. ER 703; Driggs v. Howlett, 193 Wash. App. 875,
900, 371 P.3d 61 (2016).
Dr. Dietzen based her opinions on discussions with Cheri and Pete, text messages
between the relatives and the Pirkeys, and nearly one year of counseling notes by Dr.
Greer. Dr. Dietzen opined that the present case was one of the most egregious cases of
children suffering from emotional trauma she had seen in her 40 years of professional
experience. The Pirkeys did not contest Dr. Dietzen’s opinion by having Dr. Greer
provide a counter-declaration. Given Dr. Dietzen’s unrebutted professional opinion, it
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was manifestly unreasonable for the trial court to find that Dr. Dietzen's opinion failed to
meet the adequate cause threshold for both NPC orders.
In summary, the trial court abused its discretion by misapplying the law with
respect to modifying E.E. 's NPC order. It also abused its discretion by finding that Dr.
Dietzen's opinion was inadequate to meet the adequate cause threshold with respect to
both NPC orders. We reverse the trial court and direct it to grant the four relatives'
motion for adequate cause.
Reversed and remanded.
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.
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Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J.
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