In Re The Adoption Of: M.j.w. ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
April 16, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Adoption of: No. 50758-7-II
M.J.W.,
a minor child. PUBLISHED OPINION
LEE, A.C.J. — Greg and Linda Minium appeal the trial court’s denial of their petition to
adopt their minor grandson, M.J.W. The Miniums argue that the trial court erred in allowing
M.J.W.’s paternal grandmother, Patti Shmilenko, to intervene in the adoption proceedings because
Patti1 had not petitioned to adopt M.J.W. herself. The Miniums also argue that the trial court
abused its discretion in denying their adoption petition because its ruling was based on speculation
and an erroneous finding that the adoption petition might impact an agreed residential schedule
order between the Miniums and Patti.
We agree that the trial court erred in allowing Patti to intervene in the adoption proceeding
as a matter of right, but we hold that the trial court did not abuse its discretion in allowing Patti to
intervene permissively. We also hold that the trial court did not abuse its discretion in finding that
adoption by the Miniums was not in M.J.W.’s best interests. Accordingly, we affirm.
1
Because multiple persons in this case share the last name Shmilenko, we refer to them
individually by their first names and collectively as the Shmilenkos. We mean no disrespect.
No. 50758-7-II
FACTS
A. PROCEDURAL BACKGROUND
M.J.W.’s parents were killed by a drunk driver in 2008, just days before his first birthday.
At the time of the accident, M.J.W. was under the care of his maternal grandparents, Linda and
Greg Minium.2
A month following the accident, the Miniums petitioned for custody of M.J.W. The
paternal grandparents, Patti and John Shmilenko, filed a response requesting regular visitation with
M.J.W. Tension ensued between the Miniums and Shmilenkos, but they agreed to a residential
schedule order in 2010.
The trial court entered the agreed residential schedule order, which provided that M.J.W.
would reside with the Miniums, as nonparental custodians, but would spend every Tuesday and
Thursday from 1:00 pm to 7:00 pm, and alternating weekends, with Patti until the age of five. The
2010 residential schedule order also provided that M.J.W. would split holidays, vacations, and
special occasions between the Miniums and Patti.
After agreeing to the 2010 residential schedule order, the Miniums attempted to limit the
Shmilenkos’ access to M.J.W., and Greg tried to “have the 2010 order thrown out of court.” 1
Verbatim Report of Proceedings (VRP) (June 6, 2017) at 135. The Miniums also refused to discuss
modification of the agreed order. And they refused mediation as required by the order. Patti filed
2
Because multiple persons in this case share the last name Minium, we refer to them individually
by their first name and collectively as the Miniums. We mean no disrespect.
2
No. 50758-7-II
suit to modify the agreed order, and the Minimums responded by filing a motion to vacate the
order. The trial court denied this motion.
In September 2014, the Miniums filed a petition to adopt M.J.W. Patti filed a motion to
intervene in the adoption proceedings on October 3. Patti argued that she could intervene as a
matter of right under CR 24(a) in order to protect her “legally cognizable rights with regard to the
parenting of [M.J.W.].” Clerk’s Papers (CP) at 194. She also argued that she could permissively
intervene under CR 24(b) because her rights under the 2010 residential schedule shared a common
question of law or fact to the adoption petition, which was determining the best interests of M.J.W.
The trial court granted Patti’s motion to intervene both as a matter of right and by permissive
intervention.
While the Miniums’ petition to adopt M.J.W. was pending, the Miniums and the
Shmilenkos entered into a modified residential schedule order on October 31, 2014. This order
provided that M.J.W. would visit with Patti on Tuesdays during the school year between 4:00 pm
and 6:30 pm, and would spend one to two weekends per month with Patti. Again, the residential
schedule order provided that M.J.W. would split his winter vacation, spring break, and summer
holiday between the Miniums and Patti. And M.J.W. would spend alternating holidays and special
occasions with the Miniums and Patti. There were no missed visits under the 2010 and 2014
residential schedule orders.
B. ADOPTION TRIAL
A trial was held on the merits of the Miniums’ adoption petition in June 2017. Several
family members and expert witnesses testified at trial.
3
No. 50758-7-II
Richard Dillman, a licensed mental health counselor in Washington, testified that he began
treating M.J.W. for anxiety in January 2015. As part of his treatment, Dillman initially met with
M.J.W. and Linda together. During these visits, Linda mentioned adoption to Dillman, discussed
her litigation with Patti, and once accused Patti of drug use. At Linda’s request, Dillman wrote a
letter stating that the Shmilenkos had forced overnight visits on M.J.W., which had caused
M.J.W.’s anxiety. As a result of these discussions, Dillman developed a very negative view of the
Shmilenkos. Dillman later met the Shmilenkos and determined that he had developed an erroneous
view of them based on his discussions with Linda.
Dillman also testified that he had offered to act as a mediator between the Miniums and the
Shmilenkos because he believed that the antipathy between the parties was negatively impacting
M.J.W. The Shmilenkos were willing to go to mediation, but the Miniums were not.
During trial, Patti asked Dillman whether he believed the adoption might impact the
visitation schedule in effect between Patti and the Miniums. The trial court overruled the Miniums’
objection that such testimony would be speculative, and Dillman testified that absent a court order,
“the potential for [visitation] to change would definitely be there.” 6 VRP (June 14, 2017) at 763.
He also testified that based on the “antipathy” between the Miniums and the Shmilenkos, M.J.W.
would visit with the Shmilenkos far less frequently if the Miniums’ adoption petition was granted.
Jami Pannell, the guardian ad litem appointed by the trial court to represent M.J.W.’s
interests in this case, also testified. The trial court had ordered Pannell to investigate all matters
related to the parenting plan, including financial stability, emotional stability, home life, and
4
No. 50758-7-II
whether M.J.W. had social and “familiar” support under the current plan. 5 VRP (June 13, 2017)
at 687.
Pannell testified that during her investigation, Linda stated that Patti was manipulative,
controlling, and unable to provide proper oversight for M.J.W. Pannell also noted that while
exchanging M.J.W. between their homes, the Miniums would refuse to smile at, look at, or speak
to the Shmilenkos. The tension during these exchanges caused M.J.W. to develop stomachaches.
Based on her interviews with the Miniums and the Shmilenkos, Pannell found that the
Shmilenkos had acted as “peacekeepers” in this case. 5 VRP (June 13, 2017) at 687. The
Shmilenkos attempted to hire a mediator and had received counseling on how to keep peace with
the Miniums. And M.J.W. had a very strong bond with both Patti and John. Pannell determined
that regular visitation with the Shmilenkos would be in M.J.W.’s best interests. Pannell reported
that the Shmilenkos played a vital role in M.J.W.’s emotional health and wellbeing, and opined
that they should not be excluded from his upbringing.
Pannell was concerned that the Miniums might try to limit Patti’s access to M.J.W. Patti
specifically asked Pannell whether she had concerns about the adoption, and Pannell testified that
she was concerned that Patti might be left out of M.J.W.’s life if the Miniums’ adoption petition
was granted. The Miniums objected to this testimony as speculation, but the trial court overruled
their objection.
Linda testified that Patti was a harmful and negative influence on M.J.W., and claimed that
Patti knew no bounds, was domineering, condescending, and disrespectful. Greg testified that
Patti was an “ ‘evil woman,’ ” and acknowledged that he would follow the 2014 residential
5
No. 50758-7-II
schedule “ ‘with a grudge.’ ” CP at 481-82. Greg also admitted that he previously tried to “have
the 2010 [residential scheduling] order thrown out of court.” 1 VRP (June 6, 2017) at 135. Other
witnesses that testified at trial all agreed that the 2014 residential schedule was in M.J.W.’s best
interest.3
The trial court found that M.J.W. needed both the Miniums and the Shmilenkos in his life.
M.J.W.’s current living situation “ha[d] continuity, consistency, and stability,” and M.J.W. was
“thriving under the 2014 Residential Schedule.” CP at 481. The court also found that the titles of
“ ‘adopted’ ” and “ ‘legal parent’ ” would have no positive emotional or developmental effect on
M.J.W. CP at 481. The court further found that the loss of M.J.W.’s relationship with either the
Shmilenkos or the Miniums would impede M.J.W.’s development and harm his wellbeing. CP at
481.
Based on the Miniums’ “concrete, unchanging negative views” of Patti, the trial court
concluded that Patti’s visitation with M.J.W. would be diminished or cease altogether if the trial
court were to grant the Miniums’ adoption petition. CP at 481. This would upset the status quo
that had been so critical to M.J.W.’s development. The court also concluded that adoption posed
a grave risk to the status quo established under the 2014 residential schedule because adoption
3
Kimberly French, M.J.W.’s preschool teacher; Karen Roggenkamp, a longtime friend of the
Miniums; Emily Schloss, the Miniums’ adult daughter; Blaine Tolby, M.J.W.’s pediatrician;
Trisha West, M.J.W.’s kindergarten teacher; Keith Lawrence, who conducted an adoption
placement report in this case; John, Patti’s husband; Emily Anderson, Patti’s niece-in-law; Leah
Brown, Patti’s former stepdaughter; Landon Poppleton, a psychologist; Chelsea Baldwin, one of
Patti’s former attorneys; Barbara Kivela, Patti’s sister; Stacy Tucker, whose half-sister’s father
was once married to Patti; and Christen Carson, a clinical and forensic psychologist, also testified
at trial.
6
No. 50758-7-II
divests anyone, other than the adoptive parents, of legal rights to the adopted child. The court
further concluded that any attempt to enforce the agreed 2014 residential schedule order following
adoption would be contrary to public policy and law, and would necessarily fail. Therefore, the
trial court found that adoption was not in M.J.W.’s best interests and denied the Miniums’ petition.
The Miniums appeal.
ANALYSIS
A. PATTI’S INTERVENTION4
CR 24 provides two independent means by which a party may intervene—(1) as a matter
of right, and (2) by permission of the court. Pub. Util. Dist. No. 1 of Okanogan County v. State,
182 Wn.2d 519, 531, 342 P.3d 308 (2015). Here, the trial court allowed Patti to intervene by both
means. However, the Miniums appear5 to only challenge the trial court’s ruling on intervention as
of right. Nonetheless, we analyze the propriety of the trial court’s ruling as to both means of
intervention for completeness.
1. Intervention as a Matter of Right
We will reverse the trial court’s grant of intervention as a matter of right only if an error of
law has occurred. Westerman v. Cary, 125 Wn.2d 277, 302, 892 P.2d 1067 (1994). An error of
4
Patti claims that the Miniums challenge her standing to intervene under chapter 26.33 RCW for
the first time on appeal. But the record shows that the Miniums challenged Patti’s standing to
intervene below and based their response on the adoption policy inherent in chapter 26.33 RCW.
Thus, we find that the Miniums did not waive their assignment of error by failing to assert it below.
5
The Miniums’ briefing challenges Patti’s “right to participate” in the adoption proceeding, but
the arguments do not differentiate between intervention as a matter of right and permissive
intervention. Br. of Appellant at 17. The arguments that are made in the briefing, however, are
focused on an intervention as a matter of right.
7
No. 50758-7-II
law is “ ‘an error in applying the law to the facts as pleaded and established.’ ” Id. (internal
quotation marks omitted) (quoting In re Jones’ Estate, 116 Wash. 424, 426, 199 P. 734 (1921)) .
A person shall be permitted to intervene as a matter of right:
[W]hen the applicant claims an interest relating to the property or transaction which
is the subject of the action and the person is so situated that the disposition of the
action may as a practical matter impair or impede the person’s ability to protect that
interest, unless the applicant’s interest is adequately represented by existing parties.
CR 24(a)(2).
Here, Patti claims she is allowed to intervene as a matter of right based on the 2010
residential scheduling order. Patti argues that the 2010 order vested her with “substantial visitation
rights” and that the trial court did not err in allowing her to intervene in order to protect those
rights. Br. of Resp’t at 29. The Miniums argue that this claimed interest was insufficient to confer
intervention as a matter of right because there is no statutory authority allowing a third party to
intervene in order to protect their visitation interests. We agree with the Miniums.
The meaning of “ ‘interest’ ” under CR 24(a)(2) is to be interpreted broadly, with
flexibility, and analyzed on a case-by-case basis. Westerman, 125 Wn.2d at 303. However, the
interest that the intervenor seeks to protect must be an interest recognized by law. Id. Our Supreme
Court “has repeatedly held that absent a valid statute, there is no right to third-party visitation
under our existing laws.” In re Custody of M.W., 185 Wn.2d 803, 811, 374 P.3d 1169 (2016).
Indeed, several of Washington’s nonparental visitation statutes have been found
unconstitutional, both facially and as applied. See In re Parentage of C.A.M.A., 154 Wn.2d 52,
66, 109 P.3d 405 (2005); In re Custody of Smith, 137 Wn.2d 1, 20-21, 969 P.2d 21 (1998), aff’d
sub nom, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d. 49 (2000); In re. Custody
8
No. 50758-7-II
of T.L., 165 Wn. App. 268, 282, 268 P.3d 963 (2011). In Smith, our Supreme Court held
unconstitutional RCW 26.10.160(3) and former RCW 26.09.240, which allowed a nonparent to
petition the court for visitation rights, because they impermissibly interfered with a parent’s
fundamental interest in the “ ‘care, custody and companionship of the child.’ ” 137 Wn.2d at 21
(quoting In re Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). Several years later, in C.A.M.A.,
our Supreme Court held Washington’s visitation statute unconstitutional, even though it had been
amended to presume that a grandparent’s visitation was in a child’s best interest only if a
significant grandparent-grandchild relationship was present. 154 Wn.2d at 57, 59. And most
recently, in M.W., our Supreme Court reaffirmed its prior holdings “that there is no statutory basis
for third-party visitation under our laws.” 185 Wn.2d at 813.
Thus, Patti’s interest in safeguarding her third-party visitation with M.J.W. was not an
interest recognized by law. Moreover, “[b]ecause the process of adoption is a creature of statute,
the adoption statutes must be strictly followed.” In re Adoption of B.T., 150 Wn.2d 409, 416, 78
P.3d 634 (2003). Nothing in the adoption statutes allows a third party to intervene as a matter of
right in order to safeguard their interests in maintaining visitation with the child. Under RCW
26.33.160(1), the only relatives whose consent is required for adoption, and thus the only relatives
entitled to notice of an adoption, are the child’s parents, the alleged father of a minor child, or a
relative who is the child’s legal guardian. In re Adoption of R.L.M., 138 Wn. App. 276, 284, 156
P.3d 940 (2007), review denied, 162 Wn.2d 1023 (2008).
Because Patti’s interest in maintaining third-party visitation with M.J.W. was not an
interest recognized by law, the trial court erred in allowing Patti to intervene as a matter of right
9
No. 50758-7-II
in the adoption. However, as explained below, this error does not compel reversal because the
trial court did not abuse its discretion in allowing Patti to permissively intervene.
2. Permissive Intervention
Even if a party does not claim an interest to allow intervention as a matter of right, the trial
court may allow that party to intervene permissively “[w]hen an applicant’s claim or defense and
the main action have a question of law or fact in common.” CR 24(b)(2). Here, the trial court also
allowed Patti to permissively intervene.
The trial court has considerable discretion to allow intervention under this rule, and
consequently, we will reverse such ruling only for an abuse of that discretion. Pub. Util. Dist. No.
1 of Okanogan, 182 Wn.2d at 531. “ ‘An abuse of discretion exists only when no reasonable
person would take the position adopted by the trial court.’ ” Id. (internal quotation marks omitted)
(quoting Westerman, 125 Wn.2d at 304).
The Miniums appear to argue that the trial court abused its discretion in allowing Patti to
permissively intervene in the adoption proceeding because she was neither an adoptee nor a
prospective adoptive parent. They also argue that nothing in chapter 26.33 RCW allows a third
party to intervene for the purposes of objecting to an adoption.
As explained above, the Miniums are correct that nothing in the adoption statutes provided
Patti the right to intervene in the adoption proceeding under CR 24(a). However, under CR 24(b),
“anyone may be permitted to intervene in an action . . . [w]hen an applicant’s claim or defense and
the main action have a question of law or fact in common.” And “[i]n exercising its discretion the
10
No. 50758-7-II
court shall consider whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.” CR 24(b)(2).
The Miniums do not dispute that Patti had an independent claim or defense with a law or
fact common to their adoption petition. Instead, they argue that under B.T., Patti could only
participate in the adoption proceedings if she was a prospective adoptive parent. In B.T., our
Supreme Court held that a grandmother and stepfather had standing to intervene in a post-
termination adoption proceeding, so long as they met the requirements of an adoptive parent under
RCW 26.33.140(2).6 150 Wn.2d at 419.
However, the B.T. decision focused on standing to intervene as a statutory right. Id. at 416.
The B.T. court never held that it would be an abuse of discretion for the trial court to allow
permissive intervention of persons who have not filed adoption petitions themselves. In fact, the
B.T. court
recognize[d] that while the adoption process is a creature of statute, it is not such a
technical one that the trial court is left without power to conduct evidentiary
hearings to procure significant evidence or facts before granting or denying an
adoption petition, and to allow the intervention of appropriate and interested parties.
Id. “The guiding principle behind the adoption process is to determine what is in the best interest
of the child.” Id. at 417. And in conducting a hearing under Chapter 26.33, “[t]he court may
require the presence of witnesses deemed necessary to the disposition of the petition.” RCW
26.33.060.
6
RCW 26.33.140(2) provides that “[a]ny person who is legally competent and who is eighteen
years of age or older may be an adoptive parent.”
11
No. 50758-7-II
Here, the Miniums and Patti had entered into an agreed residential schedule regarding
M.J.W. in 2010, when he was two years old. The residential schedule provided for frequent,
regular visits with Patti. Thus, the record shows that beginning at the age of two, M.J.W. regularly
visited and resided with Patti.
Given the long-term relationship between M.J.W. and Patti, deeming her presence
necessary to determine the best interests of M.J.W. cannot be said to be a position that no
reasonable person would take. In light of the trial court’s power “to allow the intervention of
appropriate and interested parties” in an adoption proceeding, we hold that the trial court did not
abuse its discretion in allowing Patti to permissively intervene. Id. at 416.
B. DENIAL OF ADOPTION PETITION
Next, the Miniums appear to argue that the trial court erred in denying their adoption
petition because (1) the trial court erroneously concluded that the 2014 residential schedule would
automatically terminate upon adoption, and (2) the trial court relied on speculation in reaching its
decision. We disagree.
1. Standard of Review
We review a trial court’s determination that adoption is in the best interests of the adoptee
for an abuse of discretion. See In re Adoption of Hamilton, 41 Wn.2d 53, 56, 246 P.2d 849 (1952)
(“Trial courts must of necessity have a wide latitude of discretion in matters coming before them
involving minor children, and their orders and judgments should not be disturbed by the appellate
court except for very cogent reasons.”); In re Dependency of J.S., 111 Wn. App. 796, 804, 46 P.3d
273 (2002) (“Courts have broad discretion and are allowed considerable flexibility to receive and
12
No. 50758-7-II
evaluate all relevant evidence in order to reach a decision recognizing both the welfare of the child
and the parental rights.”). “A trial court abuses its discretion when its decision ‘is manifestly
unreasonable or based upon untenable grounds or reasons.’ ” Salas v. Hi-Tech Erectors, 168
Wn.2d 664, 668-69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d
1239 (1997), cert. denied, 523 U.S. 1008 (1998)). A ruling is based on untenable grounds or
reasons if the trial court applies the wrong legal standard or relies on facts that are unsupported.
Id. at 669.
2. Finding Based on 2014 Residential Schedule Order
The Miniums argue that the trial court erred when it found that granting their adoption
petition “would automatically terminate” the 2014 residential schedule order. Br. of Appellant at
27. In doing so, the Miniums argue that the trial court used the residential visitation schedule “as
a vehicle to deprive a child from a permanent adoptive home.” Br. of Appellant at 32.
The Miniums’ argument overlooks the guiding principle behind the adoption process,
which “is to determine what is in the best interest of the child.” B.T., 150 Wn.2d at 417. The trial
court was not tasked with deciding between a 2014 residential schedule and the Miniums’ adoption
petition. The trial court’s inquiry was to determine whether adoption by the Miniums was in
M.J.W.’s best interests. See RCW 26.33.240(3).
Based on the evidence at trial, the trial court found that M.J.W. was “thriving under the
2014 Residential Schedule.” CP at 481. The residential schedule protected M.J.W. from
instability and ensured he would not be “placed in a loyalty bind between the parties.” CP at 481.
And the court found that having a legal parent would have no positive effect on M.J.W.’s emotional
13
No. 50758-7-II
health or development. Thus, when weighed against the potential benefits of adoption, the trial
court found that it was in M.J.W.’s best interest to maintain the status quo established under the
2014 residential schedule order. The Miniums do not argue that these were untenable grounds or
reasons to deny the adoption petition. And they provide no support for their accusation that such
ruling was intended to deprive M.J.W. of a permanent home.
Also, contrary to the Miniums’ argument, adoption would have posed a grave risk to the
status quo established under the 2014 residential schedule, as the trial court concluded. The entry
of an adoption decree “divests any parent or alleged father who is not married to the adoptive
parent . . . of all legal rights and obligations in respect to the adoptee.” RCW 26.33.260(1). Upon
entry of an adoption decree, “[t]he adoptee shall be, to all intents and purposes, and for all legal
incidents, the child, legal heir, and lawful issue of the adoptive parent . . . and subject to all the
obligations of a natural child of the adoptive parent.” RCW 26.33.260(1). “[A] grandparent has
no standing to petition for visitation rights subsequent to adoption of the grandchild by others,
whether strangers or relatives.” In re Custody of B.S.Z.-S., 74 Wn. App. 727, 729, 875 P.2d 693(1994) (holding that formal adoption terminated any visitation rights that a paternal grandmother
may have had prior to adoption).7
The Miniums fail to show that the trial court abused its discretion in considering how
adoption would upset the status quo established under the 2014 residential schedule. Accordingly,
we hold that the Miniums’ challenge fails.
7
And even if the entry of an adoption decree did not automatically terminate Patti’s visitation
rights, the Miniums could have easily petitioned for modification of the 2014 residential schedule
once they obtained the legal status of parents of M.J.W. See RCW 26.10.190.
14
No. 50758-7-II
3. Evidentiary Ruling
The Miniums argue that the trial court abused its discretion in allowing Dillman and
Pannell to testify as to whether adoption would likely affect M.J.W.’s visitation with Patti. The
Miniums appear to argue that had the trial court properly excluded this evidence as speculation,
then it would not have concluded that M.J.W.’s visitation with Patti might diminish or cease
altogether following adoption. We disagree.
“We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”
Salas, 168 Wn.2d at 668. A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or reasons. Id. at 669.
“Where there is no basis for the expert opinion other than theoretical speculation, the expert
testimony should be excluded.” Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 126
Wn.2d 50, 103, 882 P.2d 703 (1994). And conclusory or speculative expert opinions lacking
adequate foundation shall not be admitted. Stedman v. Cooper, 172 Wn. App. 9, 16, 292 P.3d 764(2012).
ER 701 governs the admissibility of opinion testimony by a lay witness. ER 701 limits lay
opinion testimony to testimony “(a) rationally based on the perception of the witness, (b) helpful
to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge.”
a. Dillman’s testimony
Dillman’s testimony that adoption could potentially change Patti’s visitation with M.J.W.
was not based on theoretical speculation. Dillman testified that he had discussed the Shmilenkos
15
No. 50758-7-II
with Linda several times, and as a result of those discussions, he initially developed a very negative
view of the Shmilenkos. He explained that Linda accused Patti of drug use and told him that Patti
had forced M.J.W. to spend time with her, even though the visits caused M.J.W. considerable
anxiety. After meeting with the Shmilenkos in person, Dillman learned that his view of the
Shmilenkos based on his discussions with Linda was incorrect. Dillman also concluded, based on
his visits with all the parties and M.J.W., that the antipathy between the Shmilenkos and the
Miniums was negatively impacting M.J.W.
Thus, Dillman had personal knowledge of the animosity between the parties from his visits
and discussions with the parties, and he could conclude, based on his observations and interviews,
that the Miniums might seek to limit the Shmilenkos’s visitation with M.J.W. following adoption.
The trial court did not abuse its discretion in overruling the Miniums’ objection to Dillman’s
testimony.
b. Pannell’s testimony
The Miniums also argue that the trial court abused its discretion in overruling their
objection to a portion of Pannell’s testimony regarding her opinion on future visitation. Pannell
was the guardian ad litem appointed by the court to advocate for M.J.W.’s best interests in this
case. In preparing her report, Pannell interviewed the Miniums and the Shmilenkos. She observed
that the Shmilenkos had acted as “peacekeepers” in this case and tried to hire a mediator to resolve
the issues between the parties. 5 VRP at 687. Linda reported to Pannell that Patti was unable to
provide proper oversight over M.J.W., and that Patti was manipulative and controlling. During
the course of her investigation, Pannell found Linda’s accusations to be untrue. Pannell also
16
No. 50758-7-II
observed that during M.J.W.’s visitation exchanges, the Miniums would refuse to smile at, look
at, or speak to the Shmilenkos. Pannell concluded that this tension between the parties was causing
M.J.W. stomachaches.
Given the time Pannell spent observing and interviewing the parties, it was not manifestly
unreasonable to allow her to testify, based on her personal observations, whether she believed that
the Miniums might try to limit the Shmilenko’s access to M.J.W following adoption. Pannell’s
testimony relating the tension between the Miniums and the Shmilenkos was based on her personal
observations, and laid the foundation for her to testify whether she personally believed that
adoption might impact the visitation schedule between the parties. Therefore, the trial court ruling
was not based on untenable grounds or reasons, and we hold that it did not abuse its discretion in
allowing this testimony.8
8
Even if the trial court had abused its discretion, any error was harmless. An error is harmless if
it does not affect the outcome of the case. Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178
Wn. App. 702, 729, 315 P.3d 1143 (2013), review denied, 180 Wn.2d 1011 (2014). “[I]mproper
admission of evidence constitutes harmless error if the evidence is cumulative or of only minor
significance in reference to the evidence as a whole.” Hoskins v. Reich, 142 Wn. App. 557, 570,
174 P.3d 1250, review denied, 164 Wn.2d 1014 (2008).
Here, even without Dillman’s and Pannell’s testimony, the trial court could easily have
concluded that the Miniums might seek to limit Patti’s visitation following an adoption. The
animosity between the Miniums and Patti was readily evident throughout the course of trial. Linda
testified that Patti was “manipulative, knows no bounds, is domineering, condescending,
disrespectful and harmful.” CP at 481. Greg testified that Patti was “an ‘evil woman,’ ” and
admitted that he tried to have the 2010 residential schedule order “thrown out of court.” CP at
481; 1 VRP (June 6, 2017) at 135. Greg also admitted that he would abide by the 2014 residential
schedule “ ‘with a grudge.’ ” CP at 482. Thus, even without Dillman’s and Pannell’s testimony,
the trial court could conclude that the Miniums might limit Patti’s visitation with M.J.W. following
adoption based on the open hostility displayed by the Miniums, which was only bolstered by
Dillman’s and Pannell’s testimony. Therefore, even if the trial court erred in allowing Dillman’s
and Pannell’s testimony, any error was harmless.
17
No. 50758-7-II
C. CHALLENGES TO FINDINGS OF FACT AND CONCLUSIONS OF LAW9
1. Standard of Review
Findings of fact and conclusions of law are required “[i]n connection with all final
decisions in adoption, custody, and divorce proceedings, whether heard ex parte or not.” CR
52(a)(2)(B). When the trial court acts as a fact-finder, our review is “ ‘limited to whether
substantial evidence supports the trial court’s findings and whether the findings support its
conclusions of law.’ ” In re Adoption of S.H., 169 Wn. App. 85, 101, 279 P.3d 474 (2012) (internal
quotation marks omitted) (quoting Commonwealth Real Estate Servs. v. Padilla, 149 Wn. App.
757, 762, 205 P.3d 937 (2009)). “Substantial evidence is evidence in sufficient quantum to
persuade a fair-minded person of the truth of the declared premise.” Ridgeview Properties v.
Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). The trial court’s unchallenged findings of
fact are verities on appeal. In re Dependency of J.A.F., 168 Wn. App. 653, 670-71, 278 P.3d 673(2012). We review a trial court’s conclusions of law de novo by determining if the findings of fact
support the conclusions of law. Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P.3d 743(2012).
9
The Miniums also assign error to the trial court’s order staying the adoption proceedings until
Patti’s motion to intervene could be heard. Because the Miniums provide no argument to this
assignment of error, we decline to consider challenge. See RAP 10.3(a)(6). Also, the order
temporarily staying the adoption proceedings is moot given that the trial court already lifted the
stay. See State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995)
(an issue is moot if this court can no longer provide effective relief).
18
No. 50758-7-II
2. Challenged Finding of Fact
The Miniums appear to challenge finding of fact 10, which states, “[d]ue to this antipathy
and history of conduct, this court finds that if the proposed adoption were granted, visitation with
the SHMILENKOs would be diminished or stopped entirely and the status quo that is so critical
to the child’s development would be upset.” CP at 482. The Miniums argue that this finding was
not supported by substantial evidence because the trial court also found that there were no missed
visits under the 2010 and 2014 non-parental custody orders.
The Miniums are correct that the evidence at trial did not show any missed visits under the
2010 and 2014 orders. However, as discussed above, there was evidence in sufficient quantum to
support the trial court’s finding of a history of antipathy between the parties. The evidence showed
that Linda had falsely accused Patti of drug use, and told other witnesses that Patti was
manipulative, controlling, and unable to properly care for M.J.W. Pannell observed that during
exchanges of M.J.W., the Miniums refused to smile at, look at, or speak to Patti. Greg testified
that Patti was an “ ‘evil woman,’ ” while Linda claimed that Patti was “manipulative, knows no
bounds, is domineering, condescending, disrespectful and harmful.” CP at 481. Moreover, Greg
admitted that he had tried to have the 2010 residential scheduled order “thrown out of court.” 1
VRP (June 6, 2017) at 135. Thus, there was evidence in sufficient quantum to support the trial
court’s finding that the Miniums and Patti had a history of antipathy and that if the Miniums
became M.J.W.’s adoptive parents, they might try to diminish or stop Patti’s visitation with M.J.W.
19
No. 50758-7-II
3. Challenged Conclusions of Law
a. Adoption automatically terminates third party visitation
The Miniums claim that the trial court concluded “that an adoption decree automatically
terminates a third-party visitation order,” and they challenge that conclusion. Br. of Appellant at
1. However, the trial court never concluded that an adoption decree would automatically terminate
the third party visitation orders. The trial court’s first conclusion of law was, “Adoption of the
child will terminate and divest everyone except the adoptive parents of legal rights to the child per
RCW 26.33.260.” CP at 482. This conclusion was an accurate recitation of RCW 26.33.260(1),
which states that “[t]he entry of a decree of adoption divests any parent or alleged father who is
not married to the adoptive parent or who has not joined in the petition for adoption of all legal
rights and obligations.” Thus, we hold that the Miniums’ challenge fails.
b. Adoption not in M.J.W.’s best interest
The Miniums challenge the trial court’s conclusion that adoption was not in M.J.W.’s best
interests. However, this conclusion was supported by the trial court’s unchallenged findings that
(1) M.J.W. was “thriving under the 2014 Residential Schedule,” (2) “[t]he status quo is optimal
for the child and, therefore, protection of the status quo is in the child’s best interest,” (3) “[t]he
2014 residential schedule protects the child from instability and from being placed in a loyalty
bind between the parties,” (4) that “[b]estowal of the titles ‘adopted’ and ‘legal parent’ would have
no positive emotional or developmental effect on [M.J.W.],” and (5) that “[M.J.W.] should
continue to be parented in the future under the 2014 residential schedule.” CP at 481-82.
Therefore, we hold that the Miniums’ challenge to this conclusion of law fails.
20
No. 50758-7-II
CONCLUSION
The trial court erred in allowing Patti to intervene in the adoption proceeding as a matter
of right, but did not abuse its discretion by allowing Patti to intervene permissively or in finding
that adoption by the Miniums was not in M.J.W.’s best interests. Accordingly, we affirm.
Lee, A.C.J.
We concur:
Worswick, J.
Sutton, J.
21