Jennifer M. (Roetcisoender) Whaley v. Jason D. Gray ( 2017 )

FILED
JUNE 29, 2017
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 the Matter of the Parenting ofH.J.G., )
) No. 33764-2-111
JENNIFER ROETCISOENDER )
)
Appellant, )
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v. ) UNPUBLISHED OPINION l
)
JASON GRAY, )
)
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Respondent. ) I
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KORSMO, J. - This appeal arises from the modification of an existing parenting
plan to award primary custody ofH.G. to her father, Jason Gray, based on a finding of
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emotional abuse of a child and exposure to domestic violence. H. G.' s mother, Jennifer
Roetcisoender, appeals. We affirm.
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FACTS
Ms. Roetcisoender (f/k/a/ Whaley) and Mr. Gray are the biological parents of
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H.G., a minor child. The parties entered into a parenting plan in 2008 and the court
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amended it in 2009, ordering H.G. to reside with Mr. Gray and visit Ms. Roetcisoender
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every other weekend.
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Roetcisoender v. Gray
This parenting plan had a restrictive notation that prohibited H.G. from being in
contact with Ms. Roetcisoender's then-boyfriend, Mr. J.C. 1 a man with an alleged
reputation for domestic violence. In 2010, Ms. Roetcisoender dated a Mr. W.S. and there
was a physical altercation between them, resulting in W.S. 's arrest.
Mr. Gray and Ms. Roetcisoender did not strictly comply with the parenting plan.
H.G. lived nearly full time with Mr. Gray and his long-time girlfriend, Ms. T.D. In 2013,
when Ms. Roetcisoender married Mr. Roetcisoender, she petitioned the court for
increased visitation. Mr. Gray alleged, however, that H.G. expressed extreme dismay and
would hide, cry, and scream, "I don't want to go," when sent to visit her mother. Report
of Proceedings (RP) at 61 7. He countered with a petition requesting the court decrease
Ms. Roetcisoender' s visitation, alleging that Ms. Roetcisoender engaged in physical and
emotional abuse of H.G., that there was domestic violence, and abusive use of conflict
that created the danger of serious damage to H.G. 's psychological development. The trial
court granted Mr. Gray's petition, denied Ms. Roetcisoender's, and suspended visitation
between H.G. and Ms. Roetcisoender for forty-five days.
From mid-2013 into 2014, H.G. received evaluations from mental health
counselors, medical doctors, and psychologists including Lindsay Hatch of Spokane
Therapist LLC. H.G. received various diagnoses, including post-traumatic stress disorder
1
Individuals not parties to this action will be referred to by their initials, to protect
their privacy.
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(PTSD), adjustment and anxiety disorder, and depressed mood. Her providers observed
that H.G. 's anxiety occurred when she was expected to go visit her mother and that she
engaged in skin picking behavior, which is often associated with anxiety.
Trial occurred before the Honorable Maryann Moreno. At trial, the court heard
testimony about the domestic violence incidents in Ms. Roetcisoender's previous
relationships, some of which occurred prior to the implementation of the 2009 parenting
plan. T.D testified Ms. Roetcisoender had confided in her that Ms. Roetcisoender's
boyfriend in 2008, Mr. A.H, may have molested H.G. that year; this information was not
known to the court or Mr. Gray when entering the March 2009 parenting plan.
The court also heard testimony that in January 2014, either Ms. or Mr.
Roetcisoender put H.G. in the shower with her clothes on, turned on the water, and made
her stand there for a few seconds as a punishment. At trial, Ms. Roetcisoender stated she
had done this to H.G., while Mr. Roetcisoender denied ever having used such a method
as a form of discipline. H.G.'s medical doctor testified that H.G. told him that it was Mr.
Roetcisoender who had placed her in the shower.
The trial court found emotional abuse of a child and exposure to domestic
violence, and restricted Ms. Roetcisoender's time with H.G. The trial court also
requested a mental health counselor work with H.G. to reintegrate the child and her
mother into each other's lives going forward.
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In its oral ruling, the trial court discussed Ms. Roetcisoender's past relationships as
significant to the issues ofH.G.'s placement. From 2009 through the end of 2012, Ms.
Roetcisoender was "very unstable" following a series of bad romantic relationships, with
H.G. observing each of those abusive relationships during visitation. The court found
H.G.'s anxiety surrounding discipline was connected to her past exposure to domestic
violence situations. This anxiety was further exacerbated by current emotional abuse by
an adult in the Roetcisoender household. The trial court concluded:
There's no doubt in my mind that ... we need to start visitation and we
need to start it now, okay? That doesn't necessarily mean that I have a
magic wand ... [to] make the anxiety go away. We have to deal with what
we have on the table.
I don't know why the counseling stopped with Ms. Hatch. I think
she and [H.G.] got along real well, and I think [H.G.] made some progress
with Ms. Hatch. So I'm simply going to enlist her services to develop a
plan and to work with [H.G.] to therapeutically reintegrate Mom into
[H.G.]'s life. I suspect that would start with [H.G.] having contact with
Ms. Hatch. Then Ms. Hatch would detail, schedule some therapeutic visits
between Mom and [H.G.] and work toward a somewhat normalized
visitation schedule.
I can't say today that in a year there's going to be every-other
weekend visits. I don't know where [H.G.] is in all of this at this particular
point in time. We've got to start this. Mom is mom. Mom's going to be
mom regardless. And I think [H.G.]'s just a little bit older now, perhaps
that's helpful. I'm anticipating that the ... first couple visits would be
between Ms. Hatch and [H.G.] and that at some point Mom would come up
and engage in that process in any manner that Ms. Hatch believes is
appropriate. Again, if Ms. Hatch would kindly assume some
recommendations as to, Okay, now it's time to start with a one-on-one
visitation with Mom and [H.G.], and then in time maybe there would be
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couple-hour visits down at Mom's house, just a very slow integration.
Again, I can't say what that is. I'm going to have to defer to Ms. Hatch on
that.
RP at 624-625. The trial court ordered sole decision-making for H.G. to Mr. Gray with
the understanding that the court would take another look at decision-making if visitation
was ever normalized. The new 2015 parenting plan stated, under Section III,
"Residential Schedule:"
The services of Lindsay Hatch to be enlisted to develop a plan and to work
with [H.G.] to therapeutically reintegrate the mother into [H.G.]'s life.
The Court contemplates this would start with [H.G.] having contact with
Ms. Hatch. Ms. Hatch would detail and schedule some therapeutic visits
between Mother and [H.G.] and work toward a somewhat normalized
visitation schedule.
The Court anticipates that the first couple of visits would be, if Ms. Hatch is
agreeable, between Ms. Hatch and [H.G.]
The Court contemplates at some point the mother would come up and
engage in that process in any manner that Ms. Hatch believes is
appropriate.
The Court requests Ms. Hatch provide some recommendations as to
progressing to one-on-one visitation with Mom and [H.G.]
The Court contemplates that in time, there may be a couple-hour visits
down at Mom's house in Rosalia.
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The Court contemplates a very slow integration to a normalized schedule of
residential time under the prior parenting [plan].
Clerk's Papers at 95. 2 Summers, vacations, holidays, and special occasions were all to be
spent with Mr. Gray until such time as H.G.'s anxiety issues were resolved and the prior
parenting plan could be reinstated. This appeal followed.
ANALYSIS
Ms. Roetcisoender argues that the trial court improperly delegated reunification to
the sole discretion of the counselor, that it erred in restricting her residential time based
on findings of emotional abuse and exposure to domestic violence, and that the finding of
exposure to domestic violence was based on impermissible testimony. We address these
contentions in that order.
Improper Delegation of Discretion
The interpretation of a parenting plan is a question of law. Kirshenbaum v.
Kirshenbaum, 84 Wn. App. 798, 803, 929 P.2d 1204 (1997). A reviewing court must
ascertain the intention of the court that entered the original decree using general rules of
construction. Id.After a trial court enters a final parenting plan, the plan can be modified by court
order only if there has been a substantial change in circumstances showing that
2
In June, the court substituted Rachel Marrazzo, a mental health counselor from
Spokane Therapist, for Ms. Hatch, who was unavailable.
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modification is necessary to serve the best interests of the child. RCW 26.09.260(1). A
trial court may delegate to a third party the limited ability to make "additions or
alterations" to the parenting plan subject to the trial court's review. Kirshenbaum, 84
Wn. App. at 804.
There was no improper delegation of authority here. The court's order did not
grant the counselor more power than statutorily permitted under RCW 26.09.260(1). The
language of the parenting plan is clear that Ms. Roetcisoender is not permitted any
visitation until the mental health counselor addresses H.G.'s anxiety and PTSD. H.G.'s
counselor is directed to make "recommendations." Involving the counselor in making
recommendations to the court to prompt a change in the parenting plan can only increase
Ms. Roetcisoender's visitation with her daughter.
This court acknowledges that the order could be clearer as to whether the court or
the counselor will make the final decision on if greater visitation is permitted. However,
nothing in the order states it will not be the trial court making that decision. The trial
court specifically contemplated a return to every-other-weekend visitation with the
assistance of the counselor to ensure the schedule remained in H.G.'s best interest. If the
trial court alters the parenting plan based on the counselor's recommendations, and the
changes are not to Ms. Roetcisoender's liking, she may bring another challenge in the
trial court.
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Restricting Residential Time
Ms. Roetcisoender next argues that the trial court erred in restricting her
residential time based on findings of .emotional abuse and exposure to domestic violence,
and that the finding of exposure to domestic violence was based on impermissible
testimony. The testimony was admissible and the findings are supported by the evidence.
A reviewing court upholds challenged findings that are supported by substantial
evidence. In re Marriage of McDole, 122 Wn.2d 604,610,859 P.2d 1239 (1993).
Substantial evidence is a sufficient amount of evidence to persuade the fact finder that a
particular finding is true. In re Marriage ofDrlik, 121 Wn. App. 269, 274-275, 87 P.3d
1192 (2004 ). On appeal, this court takes the evidence and reasonable inferences
therefrom in favor of the respondent. In re Marriage of Zigler, 154 Wn. App. 803, 812,
226 P.3d 202 (2010). Furthermore, because of the trial court's unique opportunity to
observe the parties, this court is extremely reluctant to disturb findings that result in child
placement dispositions. In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d
1280 (2001).
Trial courts are given broad discretion in matters concerning children and a
reviewing court will not disturb a trial court's disposition of a case involving the rights of
custody and visitation unless the trial court manifestly abused its discretion, that is, the
decision is untenable or unreasonable. McDole, 122 Wn.2d at 610; George v. He/liar, 62
Wn. App. 378, 385, 814 P.2d 238 (1991). A court's decision is manifestly unreasonable
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or based on untenable grounds if it is outside the range of acceptable choices given the
facts and the applicable legal standard, or if the factual findings are unsupported by the
record. In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002).
Elimination or limitation of residential time is justified by a trial court's findings
under RCW 26.09.191(2) or (3). In re Marriage of Underwood, 181 Wn. App. 608,611,
326 P.3d 793 (2014). If the trial court finds that one of the parents has engaged in, or
resides with someone who has engaged in, certain conduct specified in RCW
26.09.191(2)(a)-(b), the trial court must limit or restrain completely that parent's
residential time. Emotional abuse of a child is one statutory criterion.
The trial court found H.G. had been emotionally abused while in her mother's
care. Therefore, the trial court gave Mr. Gray decision-making power and limited Ms.
Roetcisoender's visitation. RCW 26.09.191(1), (2). The court relied on the testimony of
H.G.'s health care providers that her stress, skin picking, and anxiety resulted from
exposure to "excessive discipline" in the Roetcisoender household. One psychologist
testified that H.G. "does not feel she can trust her mother to keep her safe," testimony
that persuaded the court to find that H.G. was in fact emotionally abused in Ms.
Roetcisoender's home. See Drlik, 121 Wn. App. at 274-275. It appears the trial court
inferred that placing H.G. in the shower was a form of excessive discipline resulting in
emotional abuse. See Zigler, 154 Wn. App. at 812. Construing the facts in our record in
the light most favorable to Mr. Gray, it was not an abuse of discretion for the trial court to
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find that either Mr. or Ms. Roetcisoender was responsible for emotional abuse of H.G.,
and limit visitation accordingly. See RCW 26.09.191(2)(a)(ii), (b)(i); Underwood, 181
Wn. App. at 613; Zigler, 154 Wn. App. at 812.
Similarly, if the trial court finds the existence of certain factors under RCW
26.09 .191 (3 )(g), the trial court may limit or eliminate any provision in the parenting plan
if a parent's involvement or conduct may have an adverse effect on the child's best
interests. Underwood, 181 Wn. App. at 613. Before imposing RCW 26.09.191(3)(g)
restrictions, a trial court must find substantial evidence shows a danger of damage exists
with a particularized finding of a specific, and fairly severe, level of harm to the child.
Here, the court heard testimony (1) that H.G. was at times in the presence of J.C. in
violation of the March 2009 parenting plan and that he was abusive to Ms. Roetcisoender
and all her children, (2) that, unbeknownst to the court or Mr. Gray, A.H. allegedly abused
H.G. prior to the implementation of the March 2009 parenting plan, and (3) that W.S.
allegedly abused one of Ms. Roetcisoender's other children and assaulted Ms.
Roetcisoender. See Underwood, 181 Wn. App. at 613. Interpreting the testimony of the
parties in the light most favorable to Mr. Gray, it was reasonable for the trial court to find
that H.G. had been exposed to domestic violence through Ms. Roetcisoender's past
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relationships. Based on this factor, the court properly supported its limitation of visitation
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between H.G. and her mother. RCW 26.09.191(3)(g); See In re Marriage ofChandola, I
180 Wn.2d 632, 645, 327 P.3d 644 (2014).
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Impermissible Testimony
In modifying a parenting plan, RCW 26.09.260(1) allows the court to consider
facts that have arisen since the prior parenting plan or that were unknown to the court at
the time of the prior parenting plan. "Unknown" facts may include those that existed
before the parents entered into an agreed parenting plan. Zigler, 154 Wn. App. at 811
(citing In re Marriage of Timmons, 94 Wn.2d 594, 600, 617 P.2d 1032 (1980) ("a change
must have occurred from circumstances only as were previously known to the court")).
There is a strong presumption against modification because changes in residences are
highly disruptive to children. McDole, 122 Wn.2d at 610. Thus, it is the moving party's
burden to prove a modification is appropriate. Schroeder, 106 Wn. App. at 350.
Ms. Roetcisoender argues that much of the evidence heard by the court in this
matter occurred prior to the entry of the March 2009 parenting plan; Mr. Gray counters
that the evidence occurred after the March 2009 parenting plan, or was unknown at the
time of its creation. The alleged abusive incident with Mr. A.H. likely occurred in late
2008, but was unknown to Mr. Gray or the court at the time of the March 2009 parenting
plan and may be considered by the trial court. See Zigler, 154 Wn. App. at 811. The
March 2009 parenting plan prohibited Mr. J.C. from being present when H.G. was with
Ms. Roetcisoender, but following the entry of the plan, Ms. Roetcisoender allegedly told
Ms. T.D that prohibition was violated. Finally, Ms. Roetcisoender's relationship with
Mr. W.S., which followed the entry of the March 2009 parenting plan, was allegedly
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abusive toward both Ms. Roetcisoender and her other child. The trial court properly
utilized the information about these three relationships in finding that Ms. Roetcisoender
had exposed H.G. to domestic violence.
While modifications to parenting plans are not preferred, H.G.'s extreme
emotional and mental distress resulting from visitation with Ms. Roetcisoender rendered
a modification of visitation appropriate. Substantial evidence existed to support the
findings of the trial court limiting Ms. Roetcisoender's visitation with H.G. The trial
court did not abuse its discretion in considering evidence of Ms. Roetcisoender's past
relationships for making its findings of fact when modifying H.G.'s parenting plan.
Affirmed.
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.
WE CONCUR:
d)'£hUJ~,
Siddoway, J. ,
~-
Pennell, J. '
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