IN RE WYRICK, 143 Wn. App. 1053 (2008)

No. 35629-5-II.The Court of Appeals of Washington, Division Two.
April 8, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 06-3-01284-3, Kitty-Ann van Doorninck, J., entered November 3, 2006.

Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.

PENOYAR, J.

Erin Demetro and Nathan Wyrick evenly split time with their child, EW, pursuant to a parenting plan the parties agreed to in 2002. Over time, Wyrick and his current wife, Rachel, kept EW in their care more than half the time, and when Wyrick enlisted in the Army and signed a power of attorney form granting his time with EW to Rachel, Demetro filed a petition for modification of the parenting plan. The trial court granted temporary custody to Demetro while Wyrick was at boot camp. An appointed guardian ad litem (GAL) investigated the matter and reported that EW was afraid of Rachel and did not want to see her. The court held a trial on the modification and found that it was in EW’s best interests to remain with Demetro and have weekend visitation with his father (but not Rachel). Wyrick now appeals, but none of his arguments has merit. We affirm.

FACTS
Erin Demetro and Nathan Wyrick divorced in 2002. They had one son, EW, and they agreed to a parenting plan that evenly split his residential time and kept both parents as joint custodians. The parenting plan also ordered Demetro to pay Wyrick $100 per month in child support. As of March 23, 2006, Demetro owed a total of $3,600 in past due child support.

Wyrick enlisted in the Army in March 2006 and left for boot camp on March 15. On March 31, 2006, he granted Rachel Wyrick, his current wife and EW’s stepmother, power of attorney regarding the custody and care of EW. The power of attorney authorized Rachel to “take and maintain custody of [EW],” “do all acts necessary or desirable for maintaining [EW’s] health, education, and welfare,” and to make all decisions regarding medical care and treatment. Clerk’s Papers (CP) at 56.

Demetro filed a petition for modification in April 2006, claiming that EW’s current environment was “detrimental to [his] physical, mental or emotional health,” and that advantages to a change in environment outweighed the potential harm. CP at 3. Demetro alleged several changes in circumstance, including (1) Wyrick enlisting in the military and his consequent absence from his family; (2) Wyrick signing over power of attorney to his current wife, allowing her to take custody of EW and make parenting decisions; and (3) Wyrick enrolling EW in a school located in Enumclaw and allowing Demetro to visit only every other weekend.

Demetro’s proposed parenting plan limited Wyrick’s residential time with his child on the alleged basis that Wyrick had willfully abandoned EW. Under the proposed plan, EW would reside with Demetro, and Demetro and Wyrick would split vacation time only when Wyrick was able to exercise his residential time. At no time would EW be at his father’s home without his father present. The proposed plan specifically prohibited EW’s stepmother from enforcing Wyrick’s residential time. Finally, the proposed plan forbid either parent from authorizing anyone other than themselves to make medical, educational, or other decisions regarding EW, and it declared Wyrick’s delegation of power of attorney to his current wife void.

Wyrick also proposed a modified parenting plan, which limited EW’s residential time with Demetro to every other weekend, two weeks in the summer (increasing to three weeks in 2008), and certain holidays.

On April 26, 2006, the trial court entered an order restraining both parties from disturbing the peace of the other party and assigning primary residential care to Demetro. The order provided that EW’s residential arrangements would be reviewed when Wyrick returned to Washington and could “provide the court with some idea as to his military assignments and future stable residence.” CP at 100. The order also declared Wyrick’s delegation of his power of attorney void, suspended Demetro’s child support payments, and appointed a GAL on behalf of EW. The trial court appointed Rae Lea Newman as EW’s GAL, ordered her to investigate and report factual information to the court regarding parenting arrangements for the child, and requested that she file her report before August 31, 2006.

Newman filed her report with the court in June 2006, despite being unable to meet with Wyrick (as he was still at boot camp). She therefore did not make firm recommendations regarding Wyrick’s time with EW, although she recommended only supervised visits between Wyrick, Rachel, and EW, and recommended that Rachel not attend play dates in the future. The focus of Newman’s report was EW’s relationship with Rachel — she noticed that EW was “extremely distressed” about the visits between him and his stepbrothers, “stat[ing] over and over that he is afraid of Rachel, and afraid she will take him [away] from his mother.” CP at 118. Newman also noted the dramatic improvement in EW’s behavior at school after moving to Demetro’s care, and she stressed that “[EW’s] personal account of his fear and mistreatment at the hands of Rachel and Nathan Wyrick can not be ignored.” CP at 118 (emphasis in original).

At a September 29, 2006 hearing, the trial court denied Wyrick’s motion for an independent examination of EW under CR 35 and his motion for a continuance, citing the importance of moving this case along and establishing EW’s permanent custody.

Newman filed a supplemental GAL report on September 29, 2006. In the report, she noted that EW and Wyrick appeared to have a “loving, tender relationship” and that EW loved to visit his dad and did not seem afraid of him. CP at 178. During a no-notice home visit, where Rachel was not present, Newman noted no concerns about the home, EW’s siblings, or Wyrick’s care for them.

Newman also praised Demetro’s parenting style with EW, especially given his behavioral problems. Newman stated that she had no concerns about Demetro’s ability to parent or “her desire to learn how to best interact with [EW].” CP at 182. However, Newman noted two incidents in Demetro’s past: a 2003 DUI conviction, which she did not follow up on until 2006, and a restraining order she obtained against her ex-boyfriend, with whom she had ended her relationship soon after their son was born (in the spring of 2006). Demetro admitted having a history of relationships with abusive men (including Wyrick, in this evaluation). At the time of the report, Demetro was employed as a bartender and left for work after EW’s bedtime three to four nights per week. EW’s paternal grandparents (Wyrick’s parents) helped with EW’s care.

EW was diagnosed with attention deficit hyperactivity disorder (ADHD), anxiety disorder, and post traumatic stress disorder (PTSD). He began therapy in the summer of 2006, and he began taking ADHD medication at the end of September 2006.

Newman urged rapid normalization of EW’s visitation with his father, but she expressed concern that EW continued to be afraid of Rachel. She reasoned that, given EW’s diagnoses, “the discipline problems Rachel faced with [EW], which included the chronic behavioral problems [EW] exhibited at school, clearly required different discipline approaches than Rachel, or the school, were using at the time.” CP at 182. Specifically, Newman noted that sitting in time out or sitting on his bed quietly were not tasks EW “was . . . prepared to do.” CP at 183. Newman concluded that she did not know how to assimilate Rachel into visitation until she and Wyrick could “accept the fact that the discipline tactics they used (or Rachel used) were tactics chosen in error.” CP at 183.

In her supplemental report, Newman recommended that the trial court (1) assign EW’s primary residential care to Demetro; (2) permit visitation with Wyrick every other Saturday, with siblings present every third visit; (3) lift the prohibition on Rachel’s visits only when she and Wyrick provide proof of completion of parenting classes for a child with ADHD, PTSD, and anxiety disorders, and EW’s doctor believes it is reasonable to include her; (4) prohibit corporal punishment, specifically by Wyrick and Rachel; (5) order Demetro to complete alcohol treatment/education classes (as a result of her 2003 DUI); and (6) limit disparaging talk regarding either parent or their significant other within EW’s hearing.

The trial court entered a modification of the parenting plan in November 2006. The order assigned EW’s primary residential care to Demetro, permitted unsupervised visitation with Wyrick on Saturdays, prohibited any contact “whatsoever” between EW and Rachel, ordered that Demetro continue EW’s therapy (and that the therapist would facilitate reconciliation between EW and Rachel), ordered Demetro to complete the alcohol treatment required under her DUI conviction, ordered that the parties evenly split the GAL costs, and ordered Wyrick to begin to pay child support (as modified), including payments dating back to the court’s interim order of April 2006. CP at 206-07.

ANALYSIS
I. Assignments of Error

RAP 10.3(g) provides that parties must include a separate assignment of error for each allegedly improper finding of fact, with reference to the finding by number.[1] “The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.” RAP 10.3(g) (emphasis added). However, where the nature of the challenge is clear and the challenged finding is set forth in the appellate brief, the appellate court may consider the merits of the challenge. State v. Estrella, 115 Wn.2d 350, 355, 798 P.2d 289 (1990). Additionally, our Supreme Court has held that when an appellant fails to raise an issue in the assignments of erro and fails to present any argument on the issue or provide any legal citation, an appellate court will not consider the merits of that issue State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995) (emphasis added).

Wyrick assigns error to the trial court’s (1) order granting primary residential custody to Demetro, (2) order requiring Wyrick to pay child support, (3) denial of Wyrick’s CR 35 motion, and (4) denial of Wyrick’s motion for a continuance. However, Wyrick does not include in his “Assignments of Error” any assignment of error to any of the trial court’s findings of fact. He only assigns error to the trial court’s findings within the body of his arguments. Where those arguments have been adequately briefed, we examine them below.

II. Detriment

Wyrick asserts both that substantial evidence did not support the finding that EW was frightened of Rachel, and that this finding was not sufficient to constitute a detriment under RCW 26.09.260(2)(c). He further claims that EW’s behavioral issues and problems in school did not constitute a detriment. Demetro disagrees, stating that the evidence presented “clearly establishes substantial evidence to support the finding of a detriment.” Resp’t’s Br. at 2.

We review a trial court’s findings of fact for substantial evidence. In re Estate of Jones, 152 Wn.2d 1, 8, 100 P.3d 805 (2004). Substantial evidence to support a finding of fact exists where there is sufficient evidence in the record “to persuade a rationale, fair-minded person of the truth of the finding.” Jones, 152 Wn.2d at 8.

The record included several accounts of EW’s fear of Rachel, including the GAL report (based on several interviews and interactions with EW) and Demetro’s testimony. The original GAL report noted EW’s extreme distress about visiting with Rachel, and EW informed the GAL that “the best thing” about being with Demetro was that “he can snuggle with her, that she is nice to him, she doesn’t hit him even when he is naughty and he doesn’t have to see Rachel.” CP at 117. Demetro testified that EW told her “on several occasions that [Rachel] smacked him across the face,” and when Demetro asked her to stop, Rachel “admitted to doing it but said she would not stop disciplining him.” Report of Proceedings (RP) (Oct. 4, 2006) at 30. Additionally, EW’s PTSD diagnosis certainly supported a finding that EW was under substantial stress. This evidence was sufficient to persuade a rationale person that EW was afraid of Rachel.

The trial court also found several other facts that supported its finding that it would be detrimental to EW to remain in the Wyricks’ primary custody: that (1) Rachel threw away EW’s antibiotics, (2) Wyrick allowed Rachel to change language in a military form submitted to his supervisors after Demetro had already signed it, (3) it had concerns about Wyrick’s credibility, and (4) Wyrick did not believe that EW suffers from ADHD and believes he has been coached by Demetro and Wyrick’s mother.

Because sufficient evidence exists in the record to support both the trial court’s finding that EW was afraid of Rachel and its finding that remaining in the Wyricks’ custody would be detrimental to EW, Wyrick’s argument fails.

III. Harm in Changing EW’s Primary Residence

Wyrick claims that the trial court erred by failing to consider the potential harm in moving EW — specifically, that the trial court did not consider EW’s relationships with his half-siblings, the comparative stability the Wyricks offered, and the potential to implement the GAL’s recommendations as to schooling plans and counseling while keeping EW in the Wyricks’ care.

It is apparent from the trial court’s findings of fact that it did consider the harm in moving EW and concluded that the harm in remaining with the Wyricks outweighed the harm of moving. First, the trial court expressly stated that its finding that the parenting plan should be modified was based on two factors: the detriment to EW incurred by remaining with the Wyricks and the harm caused by changing his environment. The trial court also included findings regarding the degree to which EW was integrated into the Wyricks’ family. That the trial court reserved judgment on visitation between EW and his half-and step-siblings illustrates consideration of his relationship with them. It also fully recognized Demetro’s misdemeanor convictions from 2003, indicating consideration of her history.

Wyrick failed to assign error to any of these findings; therefore, we consider them verities on appeal. Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986). The trial court’s findings illustrate consideration of the harm in changing EW’s environment. Wyrick’s argument is unpersuasive.

IV. Trial Court Bias

Wyrick claims that the trial court abused its discretion by making biased statements (stating “that it did not approve of litigation in the management of custodial disputes”) and in its “highly deferential treatment of the GAL, interrupting and limiting appellant’s counsel to cross-examination within the courtroom.” Appellant’s Br. at 28; CP at 28.

The exchange Wyrick claims shows bias occurred when the parties were arguing pre-trial motions:

The Court: I guess you are a new attorney for me. I am not wild about the adversarial process in terms of dealing with what’s best for children.
[Wyrick’s Counsel]: I understand that, Your Honor.
The Court: I will say it and say it 100 times. So we are starting off on a bad tone. I know there has been a lot of conflict in this case, certainly between the parties and also between the attorneys. We have been here numerous times.

RP (Sept. 29, 2006) at 5.

Wyrick did not object to this statement in any way at trial, so the issue of whether this statement showed bias was not properly preserved for review. RAP 2.5(a). Moreover, this statement does not illustrate any bias on the part of the trial court — it merely shows the court urging the parties to take a more conciliatory stance. Additionally, Wyrick does not make any argument substantiating his claim that this alleged bias harmed him in any way.

Similarly, Wyrick offers no support for his claim that the trial court’s treatment of the GAL (limiting in-court cross-examination due to her medical condition and proceeding with cross-examination by telephone the next day) either constituted bias or harmed him in any way. A trial court abuses its discretion when its decision is manifestly unreasonable, or it exercises it on untenable grounds or for untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115
(2006). An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. Mayer, 156 Wn.2d at 684. The trial court acted well within its discretion both in urging the parties to strike a more conciliatory tone and in accommodating the GAL’s medical condition. Wyrick’s argument is without basis.

V. GAL Recommendations

Wyrick also argues that the trial court abused its discretion by following the GAL’s recommendations, claiming that the GAL’s investigation was incomplete and one-sided. However, Wyrick failed to assign error to any of the trial court’s findings of fact, many of which were largely based on the GAL’s investigation. For example:

5. The step-mother, Rachel Wyrick, assumed a parental capacity and role with [EW’s] educators and health care providers without the knowledge, permission or consent of the mother,
6. The step-mother failed to testify at trial to rebut the fact that she admitted spanking and slapping the child, and subjecting him to long time outs. She also controlled telephone contacts between [EW] and his mother and `bad-mouthed’ his mother and grandmother to [EW]. The evidence about Rachel Wyrick, as reported by the Guardian ad Litem and others, is unrebutted and is taken as true by the court.
. . . .
7. While residing in the father’s home . . . the step-mother, on one occasion, threw away [EW’s] prescribed antibiotics. The court stated that there were issues regarding [EW’s] dental care and father’s failure to deal with child’s tooth grinding issue.
. . . .
11. The Court found the paternal grandmother’s testimony credible and the Guardian ad Litem’s testimony credible.

CP at 203-04.

Moreover, in a bench trial, as here, “[j]udges understand that the GAL presents one source of information among many, that credibility is the province of the judge, and can without difficulty separate and differentiate the evidence they hear.” In re the Guardianship of Stamm, 121 Wn. App. 830, 841, 91 P.3d 126 (2004). Even if Newman performed deficiently (which is emphatically not evidenced by the record), the totality of the record supports the conclusion that the trial court independently evaluated the evidence. The trial court relied on testimony from several sources, including Wyrick, in reaching its conclusions. There is no evidence that the trial court unduly relied on the GAL report or that the GAL report was deficient. Wyrick’s argument is unpersuasive.

VI. CR 35 Motion and Motion for Continuance

Wyrick contends that the trial court erred in denying his motion for a CR 35 examination “when no complete, independent evaluation or investigation was available until less than a week before trial.” Appellant’s Br. at 33. For similar reasons, he claims that the trial court erred when it denied his motion for a continuance.

As stated above, a trial court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. It was not manifestly unreasonable for the trial court to deny Wyrick’s request for a CR 35 examination where a complete, independent evaluation of EW’s physical and mental health was already available. The GAL submitted a supplemental report, including EW’s medical diagnosis, on Friday, September 29, 2006. Trial did not begin until the following Wednesday, October 4. In considering Wyrick’s motion, the trial court stressed that the October Page 13 4 trial date was set to accommodate Wyrick’s schedule, and that Wyrick had never raised this issue during any of the parties’ previous hearings. Given that an independent evaluation was already in the record and that EW’s custody had been in dispute since April, it was not manifestly unreasonable for the trial court to deny Wyrick’s CR 35 motion.

Nor did the trial court abuse its discretion in denying Wyrick’s motion for a continuance. Wyrick had previously moved for a continuance on similar grounds on August 29, without notifying the court or Demetro, and in the past month his attorneys apparently failed to resolve their scheduling and timing problems. The trial court stressed that EW needed resolution and needed to know where he was going to live. Because timing was clearly of the essence, the trial court acted well within its discretion in denying Wyrick’s motion for a continuance.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

VAN DEREN, A.C.J., QUINN-BRINTNALL, J., concur.