In re the Parentage of: A.R.

FILED
FEBRUARY 23, 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 Parentage of ) No. 34144-5-111
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A.R. )
) UNPUBLISHED OPINION
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PENNELL, J. - Joseph Huizar appeals a residential parenting schedule that
temporarily suspended visitation with his daughter, A.R. We affirm the substance of the
superior court's orders, but reverse a provision requiring Mr. Huizar to pay expert witness
fees.
FACTS
Joseph Huizar is the father of A.R, who has always resided with her mother. Over
the years, there have been various orders addressing visitation. In 2015, the trial court
entered an order granting custody of A.R. to her mother and permitting Mr. Huizar one
sixty-minute supervised visit a week for 52 weeks. The order specified that if Mr. Huizar
missed more than one visit per month or more than five visits throughout the 52 weeks,
his visitation with A.R. would be immediately suspended. No party appealed the 2015
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order.
During the first half of 2015, Mr. Huizar attempted visits with A.R. through two
different service providers. Both providers found the parents difficult to work with. The
second provider, Peggy Mosshart, placed most the blame on Mr. Huizar. In August 2015,
A.R. 'smother filed a motion to suspend Mr. Huizar's visitation. While the mother's
motion was pending, the trial court ordered resumption of visitation under the supervision
of GMC Training Institute. The mother's motion to suspend visits was ultimately denied,
and visitation continued each week from August 21, 2015, through October 2015 with
Mr. Huizar missing two visits on October 9 and 30. No visits occurred in November, but
three visits occurred in December.
A.R. 's mother again filed a motion to terminate visitation in late 2015. In
response, the trial court suspended Mr. Huizar's visitation and scheduled a one-day
hearing for entry of a final parenting plan. Prior to the hearing Mr. Huizar filed an
emergency motion to recuse the assigned judge, the Honorable Michael McCarthy. Mr.
Huizar claimed Judge McCarthy had demonstrated bias against him and could not be
impartial since the judge had been involved in a previous criminal case against Mr.
Huizar. Mr. Huizar's recusal motion was denied.
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After holding a hearing to address the final parenting plan, the trial court made
several findings adverse to Mr. Huizar and entered a new residential schedule. Under the
new schedule, Mr. Huizar's visitation with A.R. is suspended until he completes a
psychological evaluation, at which time the court will reassess whether visitation can
resume. The trial court also ordered Mr. Huizar to pay Ms. Mosshart $116.67 for her
services as an expert witness at the hearing. Mr. Huizar appeals.
ANALYSIS
Recusal motion
Mr. Huizar claims the trial judge abused his discretion in denying his recusal
motion. We review such claims by asking whether a reasonably prudent and disinterested
person would have viewed the judge as potentially biased. State v. Brenner, 53 Wn. App.
367, 374, 768 P.2d 509 (1989), overruled on other grounds by State v. Wentz, 149 Wn.2d
342, 68 P.3d 282 (2003). This standard is not met. Judge McCarthy had only limited
involvement in Mr. Huizar's prior criminal case. His ruling in that case, which reduced
the bail amount, was at least somewhat favorable to Mr. Huizar. There is no indication in
the record that Judge McCarthy remembered the specifics of Mr. Huizar's case or held
anything against him from the case. The circumstances simply are not indicative of bias
or a potential for bias.
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Substantial evidence
Under RCW 26.09.260(4), a trial court may alter a residential schedule to reduce
or restrict contact between the child and noncustodial parent if the court finds the
reduction or restriction is in the child's best interests. Such a finding must be based on
the factors outlined in RCW 26.09.191. We review the trial court's placement decision
for abuse of discretion. In re Custody ofT.L., 165 Wn. App. 268, 276-77, 268 P.3d 963(2011).
After a hearing on the mother's motion to terminate supervision, the trial court
imposed new restrictions on Mr. Huizar's contact with A.R. These new restrictions were
based on the trial court's determination that the factors from RCW 26.09.191(2)(a)(i),(iii)
and .191(3)(a),(e) were present in this case. The trial court's determination that those
factors from RCW 26.09.191 were present was based on its findings that Mr. Huizar: (1)
has a history of domestic violence against three women he was intimate with, (2) had no
personal relationship with A.R. prior to the filing of the first parenting plan in 2013,
(3) exercised his right to supervised visitation only once between August 2013 and
February 2015 (4) missed 14 weekly visits during 2015 without reasonable excuse,
(5) through his abusive behavior forced two professional supervisors to quit the case,
(6) forced Ms. Mosshart to have an adult conversation in front of A.R. to A.R.'s
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detriment, (7) was verbally abusive to A.R.' s mother during January 2016, and (8) did not
appear to benefiting from his domestic violence classes. Mr. Huizar argues substantial
evidence does not support findings 1, 2, 4, 6, and 8. We disagree.
History of domestic violence
The trial court's domestic violence finding is based on findings from a previous
order in this case from 2015. That order found Mr. Huizar had a history of domestic
violence and the order was never appealed. Additionally, there is evidence in the record
showing Mr. Huizar committed an act of domestic violence toward a girlfriend in 2010.
There is also evidence of domestic violence directed at A.R. 'smother. There is
substantial evidence in the record to support the finding that Mr. Huizar has a history of
domestic violence.
No personal relationship with A.R.
The trial court found Mr. Huizar had no personal relationship with A.R. between
2013 and February 2015. This finding was made in the 2015 order that was never
appealed. Mr. Huizar has presented no argument or evidence that this finding was not
supported by substantial evidence when made in 2015. We will not disturb this finding.
Missing 14 weekly visits without reasonable excuse
Mr. Huizar appears to be arguing the trial court unfairly held him responsible for
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all of his missed visits and that he could not have missed more than 5 visits total. The
testimony and reports support the trial court's conclusion. The court was not required to
accept Mr. Huizar' s various proffered excuses, especially in light of the reports of abusive
behavior toward the service providers. Substantial evidence supports the finding Mr.
Huizar missed 14 visits in 2015 without reasonable excuse.
Conversation with Ms. Moss hart in front of A.R.
Ms. Mosshart testified to a conversation with Mr. Huizar about visitation that took
place in front of A.R. The trial court was entitled to find this evidence credible.
Domestic violence classes were not benefitting Mr. Huizar
Despite attending 29 domestic violence classes over the course of the case, there
was evidence Mr. Huizar continued to engage in abusive and threatening behavior
directed at A.R.'s mother. These circumstances permitted the court to find Mr. Huizar
had not benefitted from his domestic violence classes.
Ms. Moss hart's witness fee
The trial court labeled the fee for Ms. Mosshart's testimony as an "expert witness
fee." Clerk's Papers at 86. However, Ms. Mosshart was never qualified as an expert
witness. ER 702. She appears to have been subpoenaed as a fact witness. Accordingly,
imposition of an expert witness fee was inappropriate. Baird v. Larson, 59 Wn. App.
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715, 801 P.2d 247 (1990). 1
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Entry of 2016 parenting plan/ residential schedule
Mr. Huizar generally argues the trial court abused its discretion by not complying
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with the various statutes he cites in his brief. He first asserts the trial court did not
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i consider the factors listed in RCW 26.09.187(3). The argument is misplaced. That
II statute directs the trial court to develop a residential schedule consistent with the factors
l listed in RCW 26.09.191. If the factors in RCW 26.09.191 are dispositive, the trial court
j need not consider the additional factors from RCW 26.09.187(3)(a)(i)-(vii).
I RCW 26.09.187(3)(a). As explained above, the trial court found that four factors listed in
RCW 26.09.191 apply in this case. The presence of those factors was the basis for the
restrictions in the residential schedule. The trial court did not need to consider the
additional factors listed in RCW 26.09.187(3).
Mr. Huizar next argues the trial court did not consider the objectives of a parenting
plan outlined in RCW 26.09.184. He specifically argues the trial court did not consider
A.R.'s changing needs as she grows older. See RCW 26.09.184(1)(c). Mr. Huizar's
argument ignores the remainder of RCW 26.09 .184(1 ). The rest of that section identifies
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The record is silent on whether Ms. Mosshart was entitled to standard witness
fees under RCW 5.56.010.
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the other objectives of a parenting plan: (1) providing for the child's physical care and
emotional stability, (2) considering the factors from RCW 26.09.187 and .191,
(3) minimizing the child's exposure to harmful parental conflict, (4) encouraging the
parents to settle matters without judicial intervention, and (5) protecting the best interests
of the child. 2 RCW 26.09.184(1). The trial court considered all of these factors when it
entered the 2016 parenting plan and residential schedule. Mr. Huizar's specific argument
about RCW 26. 09 .184( 1)( c) is misplaced. The 2016 parenting plan and residential
schedule does not bar all future visitation. Mr. Huizar must simply obtain a psychological
evaluation and meet other criteria before visitation can resume. The tasks set forth by the
trial court are ones Mr. Huizar has the ability to complete. The issue of whether Mr.
Huizar will play a role in his daughter's life as she grows older ultimately lies in Mr.
Huizar's hands, not the courts.
Mr. Huizar next argues the trial court erred because it did not apply
RCW 26.10.160(2)(n). That section only applies if the trial court finds there is no
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"The best interests of the child are served by a parenting arrangement that best
maintains a child's emotional growth, health and stability, and physical care. Further, the
best interest of the child is ordinarily served when the existing pattern of interaction
between a parent and child is altered only to the extent necessitated by the changed
relationship of the parents or as required to protect the child from physical, mental, or
emotional harm." RCW 26.09.002; See also RCW 26.09.184(1)(g).
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evidence that physical or emotional abuse will occur, and it is not in the child's best
interests to limit contact. RCW 26.10.160(2)(n). The trial court did not make such a
finding here. Instead, the trial court found it would be in A.R. 's best interests to have
minimal contact with her father based on his volatile and abusive behavior. The trial
court also found some of the factors from RCW 26.09.191 apply here. See RCW
26.10.160(2)(a). The trial court did not need to apply RCW 26.10.160(2)(n).
Mr. Huizar last argues the trial court erred because it did not find a substantial
change in circumstances. RCW 26.09.260(1) states that a trial court must find a
substantial change in circumstance before modifying a parenting plan unless the
provisions ofRCW 26.09.260(4) apply. RCW 26.09.260(4) permits a court to limit
contact between the child and noncustodial parent if such a limitation is in the best
interests of the child based on the factors in RCW 26.09.191. As explained above, the
trial court found four of the factors from RCW 26.09.191 apply here. The trial court did
not need to find a substantial change in circumstances.
A'ITORNEY FEES
Because Mr. Huizar has not substantially prevailed on this appeal, we decline to
award fees and costs. RAP 18.1. A.R.'s mother has not requested costs and therefore is
also not entitled to an award of appellate fees or expenses. See RAP 18.l(b).
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CONCLUSION
The trial court's orders on the parenting plan and residential schedule are affirmed.
The award of expert witness fees to Peggy Mosshart is reversed.
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.
Pennell, J.
WE CONCUR:
Siddoway, J.
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