IN RE C.N., 142 Wn. App. 1013 (2007)

No. 58799-4-I.The Court of Appeals of Washington, Division One.
December 24, 2007.

Appeal from a judgment of the Superior Court for King County, No. 02-7-00258-5, Margaret T. Sassaman, J. Pro Tem., entered August 15, 2006.

Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Coleman and Grosse, JJ.

SCHINDLER, A.C.J.

Because Michael Goodall’s visitation was harmful to his son, C.N., the dependency court temporarily suspended visitation until Goodall participated in and made progress in mental health treatment. Goodall contends the order suspending visitation violates RCW 13.34.136 (1)(b)(ii) because (1) the court did not expressly find visitation was harmful to C.N., and (2) the sole purpose of the order was to require Goodall to engage in mental health counseling. In In re Dependency of T.H., 139 Wn. App. 784, 162 P.3d 1141 (2007), we held RCW 13.34.136(1)(b)(ii) does not require an express finding that a visitation limitation is necessary to protect the child’s health, safety, and welfare. Here, because the record establishes Goodall’s visitation was contrary to the health, safety, and welfare of C.N., and was not a sanction for Goodall’s failure to obtain mental health treatment, we affirm.

C.N. was born on September 12, 1995 to Michael Goodall and Tracy Nelson. C.N. is a severely autistic nonverbal child who functions at the level of a toddler and cannot care for himself. C.N. has medical problems, requires constant supervision, and engages in self-injurious and aggressive behavior, including slapping his face, head, arms, stomach, pulling his hair, biting his arms and scratching himself to the point of bleeding.

Nelson and Goodall separated when C.N. was seven months old. Nelson moved to Phoenix with C.N. After C.N. was diagnosed with autism, Nelson returned to Seattle in January 1999 because she needed help caring for C.N.

In early 1999, the Division of Developmental Disabilities (DDD) began providing services to help Nelson and Goodall care for C.N. The parents asked DDD to place C.N. in foster care because they were unable to care for C.N. In November 2000, C.N. was placed in foster care. But in February 2001, at Goodall’s request, C.N. returned to live with Goodall. DDD again provided Goodall with a number of services to help care for C.N.

In July 2001, a public health nurse reported to Child Protective Services (CPS) that Goodall was not able to safely care for C.N. According to the nurse, Goodall was agitated, paranoid, uncooperative, and constantly complained about deficiencies with virtually all the services provided. The court ordered a psychological evaluation of Goodall. Based on Dr. Kenneth Asher’s initial determination that Goodall did not pose an imminent risk of abuse or neglect to C.N., CPS voluntarily dismissed the dependency petition.

In December 2001, C.N. was hospitalized for approximately three weeks at Children’s Hospital. With medication and a structured environment, C.N.’s behavior improved. The hospital staff observed that Goodall was unable to accurately interpret C.N.’s behaviors, often believing C.N.’s behavior was a side effect of the medication rather than autism. After C.N. returned home, his behavior markedly deteriorated. Goodall decided to take C.N. off all medications and instead use a natural supplement.[1]
Goodall also refused to follow the hospital’s behavior modification plan for C.N., or to follow through with the recommendations of the service providers.

In March 2002, Goodall took C.N. to the emergency room at Children’s Hospital and left him there. After Goodall refused to return for C.N., CPS intervened. Nelson signed a voluntary placement agreement and DSHS placed C.N. in foster care. Goodall also later signed a voluntary placement agreement. But after constant disputes between Goodall, the foster mother, and C.N.’s school, Goodall revoked his voluntary placement agreement in July 2002

In July, DSHS filed a dependency petition. Nelson conceded C.N. was dependent and insisted C.N. remain in foster care. Nelson did not believe Goodall should be involved in C.N.’s care because of his own mental problems and inability to care for their son.

In June 2002, Dr. Asher completed his psychological evaluation of Goodall. Dr. Asher diagnosed Goodall as suffering from a paranoid personality disorder with obsessive traits. Dr. Asher was optimistic that Goodall could improve, but recommended Goodall begin mental health treatment and demonstrate progress before he was allowed visitation with C.N. or involvement in C.N.’s care.

Following a four-day dependency trial, the court found that C.N. was dependent and concluded that Goodall’s mental health problems interfered with his ability to care for C.N. and presented a risk to C.N.’s health, safety, and welfare. In the March 12, 2003 disposition order, the court suspended Goodall’s visitation with C.N. until he participated in mental health counseling and was able to recognize how his behavior impacts C.N., accurately interpret C.N.’s behaviors, learn how to appropriately ask for assistance, and follow through with the recommendations of the service professionals.

A commissioner of this court affirmed the court’s order to suspend visitation, concluding that overwhelming evidence supported the decision to condition Goodall’s visitation on treatment and progress in treatment. “The record overwhelmingly supports the conclusion that limiting Goodall’s continued contact with C.N. absent progress in dealing with his mental health issues, was `necessary to protect the child’s health, safety, or welfare.'”

During the dependency, Goodall engaged in treatment for short periods of time at a number of mental facilities, including Seattle Mental Health, Community Psychiatric Clinic, and Virginia Mason. In June 2003, Dr. Arden Snyder at the Community Psychiatric Clinic reported Goodall was making progress. And in March 2004, Dr. Asher recommended Goodall be allowed supervised visitation with C.N.

Sometime after May 2004, Goodall began supervised visitation with C.N. According to the DSHS social worker, the first two visits with C.N. went well. But beginning in October 2005, Goodall’s behavior began to deteriorate. At the request of DSHS, the court ordered another psychological evaluation.

In October and December, the social worker had to end two of the visits early because Goodall’s interactions overly stimulated C.N. to the point where C.N. engaged in self-mutilation and hurt himself.

In December 2005, Dr. Diane Fligstein provided the court with the psychological evaluation of Goodall. Dr. Fligstein diagnosed Goodall as suffering from a personality disorder with paranoid, obsessive-compulsive, and narcissistic features. According to the evaluation, Goodall was uncooperative and acted in a very agitated, argumentative, angry, and self-focused manner. Dr. Fligstein concluded Goodall’s mental functioning had deteriorated to the same point as when dependency was established.

In January 2006, DSHS filed a motion to suspend visitation because the visits were harmful to C.N. The agency that initially supervised the visits between Goodall and C.N. refused to continue to do so because it could no longer guarantee C.N.’s safety. According to the DSHS social workers who supervised the visits, Goodall over-stimulated C.N. by singing to him and touching him. Goodall appeared unable to recognize that C.N. could not handle these interactions. Once C.N. was out of control, three or four staff members had to restrain C.N. to keep him from hurting himself. During one visit, C.N. tried to drink hot water out of the bathroom faucet and yanked window blind rods off and started waving them around. Goodall also repeatedly talked to C.N. about the abuse C.N. was suffering in foster care and about “?[C.N.’s] untimely death,'” even when the supervising social worker asked him to stop.

The court denied the request to suspend visitation, but imposed a number of conditions to address Goodall’s problematic behavior, including not raising his voice or using physical discipline, and abiding by the directions of the visitation supervisor. But Goodall’s subsequent visitation with C.N. did not improve.

During visits, Goodall was unable to control C.N. or effectively calm him down. Goodall continued to over-stimulate C.N. to the point where C.N. got out of control and would injure himself or escape from the visitation room. When C.N. attempted to lie down and put a cover over his head, Goodall continued to sing or talk loudly near C.N.’s face. When C.N. attempted to move away, Goodall followed C.N. around the visitation room. During this time, C.N. would repeatedly sign “no” through the window to the supervising social worker observing the visitation. And despite the repeated requests to not bring food and water to the visits, Goodall would bring food. C.N. would then gorge on the food, regurgitate, and eat the regurgitated food, resulting in digestive problems.

During one of the visits, as C.N. became increasingly agitated, he made his nose bleed and then smeared the blood on himself and the room. During three other visits, C.N. escaped from the room and staff members had to physically restrain him to return him. C.N.’s foster parents also testified that after the visits with Goodall, it would take several days for C.N. to calm down and the visits adversely affected his ability to stay focused at school.

In June 2006, DSHS filed another motion to suspend Goodall’s visits with C.N. because visitation was emotionally and physically harmful to C.N. The court appointed special advocate, the mother, four social workers, and the foster parents supported the request to suspend Goodall’s visitation. The court granted the motion and entered an order temporarily suspending visits until Goodall engages and makes progress in mental health treatment. Goodall filed a notice of discretionary review of the August 15, 2006 order temporarily suspending visitation. A commissioner of this court granted review.

Relying on RCW 13.34.136(1)(b)(ii), Goodall contends the court erred in suspending visitation without expressly finding that the suspension was necessary to protect the health, safety, or welfare of C.N. Goodall claims that without an express finding of harm, a court cannot suspend visitation. Goodall also argues the court impermissibly suspended visitation as a sanction for his failure to comply with mental health treatment is in violation of RCW 13.34.136(1)(b)(ii).

RCW 13.34.136(1)(b)(ii) provides:
Visitation is the right of the family, including the child and the parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify. The agency shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including regular visitation and participation by the parents in the care of the child while the child is in placement. Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child’s health, safety, or welfare. The court and the agency should rely upon community resources, relatives, foster parents, and other appropriate persons to provide transportation and supervision for visitation to the extent that such resources are available, and appropriate, and the child’s safety would not be compromised.

In In re T.H., this court recently addressed the exact same argument Goodall makes and held that under RCW 13.34.136(1)(b)(ii) an express finding is not necessary to limit visitation in order to protect the child’s health, safety, or welfare. In re T.H., 139 Wn. App. at 784. We also held that an express finding of harm is not necessary if the evidence supports the conclusion that visitation is harmful to the child. In re T.H., 139 Wn. App. at 794. In reaching this conclusion, we also considered and rejected the argument that Goodall makes to not follow the reasoning of In re Dependency of J.W., 90 Wn. App. 417, 428, 953 P.2d 104 (1998). Here, as in In re T.H., we conclude that even absent an express finding of harm, the record establishes proof of harm to C.N. as a result of the visitations with Goodall.

Courts generally do not overturn a ruling on visitation absent an abuse of discretion. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). A trial court abuses its discretion if its ruling is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).

The record overwhelmingly supports the court’s conclusion that Goodall’s visitations with C.N. were physically harmful and emotionally traumatic.[2] Four different social workers described specific instances of Goodall’s inappropriate behavior during visitation and the resulting negative impact on C.N. Goodall refused to comply with the requirements for visitation and insisted on engaging in conduct that resulted in C.N.’s out of control and self-destructive behavior. The record supports the determination that without participating in and making progress in treatment, Goodall’s visitation with C.N. is contrary to his health, safety and welfare.

But the record does not support Goodall’s claim that the court suspended visitation as a sanction for failing to participate in mental health treatment. As noted in the June 2006 Dependency Review Order:

It is contrary to the child’s health, safety, and welfare to continue visits with the father because the father has not demonstrated that he can interact with the child without agitating the child, and he cannot keep the child safe from harm. Visits have been demonstratively stressful and difficult for the child, which he cannot tolerate given his autism and special needs. Unless and until the father begins to address his own mental health problems and behaviors that interfere with his ability to interact positively and safely with the child, he shall have no visits with the child. To again have visitation with the child, the father must show through participation in counseling that he is making progress addressing his own mental health issues, and that he can recognize the needs of his child and respond appropriately. He must show he can work cooperatively with service providers by following recommendations, and putting those recommendations into practice. He must demonstrate that he has the capacity and the willingness to follow the rules of visitation.

Goodall’s participation and progress in mental health treatment was directly related to the quality of Goodall’s visits and the health, safety, and welfare of C.N. When Goodall participated in mental health treatment, he demonstrated the ability to have successful visits with C.N. But when his mental health deteriorated, the quality of his visits with C.N. also deteriorated and harmed C.N.[3]

Because the court suspended Goodall’s visitation to protect C.N.’s health, safety, and welfare, and not as a sanction, we affirm.