Filed Washington State Court of Appeals Division Two
October 4, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In re the Marriage of No. 47789-1-II
BUCK LYLE THOMPSON,
Respondent,
v.
KATIE ANN HOLT fka ACKERLUND, UNPUBLISHED OPINION
Appellant.
LEE, J. — Katie Holt appeals the trial court’s order modifying the parenting plan and
placing primary custody of her children, T.L.T., K.A.T., and C.W.T. with their father, Buck
Thompson. We hold that the trial court (1) did not abuse its discretion in admitting the challenged
exhibits and its erroneous admission of hearsay testimony was harmless; (2) did not err in
concluding that Holt’s home was a detrimental environment; and (3) did not abuse its discretion
by declining to follow the guardian ad litem’s (GAL) recommendations. Accordingly, we affirm.
FACTS
In 2011, Thompson and Holt divorced.1 Thompson and Holt shared custody of their
children, T.L.T., K.A.T., and C.W.T.,2 with the children spending 60 percent of their residential
time with Holt and 40 percent of their residential time with Thompson.
1 After her divorce from Thompson, Holt remarried and changed her last name. 2 To protect the children’s privacy, we use their initials in place of their names. No. 47789-1-II
In June 2013, Thompson picked up the children from Holt. Near the end of June, the
children told Thompson and his new wife, Brandy, about physical and emotional abuse they
suffered while with Holt. Thompson enrolled the children in counseling with Colleen Hicks, and
later with the U.S. Army’s Chaplain Counseling Services under the supervision of Chaplain Fry.
The children made various disclosures about abuse to both Hicks and the counselors at Chaplain
Counseling Services. Hicks concluded that the children were not coached in making the
disclosures. Records from Chaplain Counseling Services also suggested that the children were not
coached.
In December 2013, the children also told Thompson and Brandy about sexual abuse they
suffered while with Holt. Thompson reported the disclosures to his first sergeant, and the U.S.
Army Criminal Investigation Division (CID) launched an investigation. The investigation
concluded that the allegations against Holt were unfounded and that the children had been coached.
On February 28, 2014, Thompson petitioned to modify the parenting plan and receive
primary custody of the children. He asserted that a substantial change in circumstances had
occurred and that the current plan placed the children in a detrimental environment. The children
remained with Thompson and had no contact with Holt since June 2013.
The trial court appointed Christine Kerns as the GAL on February 12, 2015. Her April 19,
2015 preliminary report detailed her interviews with the children and both parents and included
the disclosures of physical and sexual abuse made by the children.3 The GAL’s preliminary report
made recommendations regarding psychological evaluations for the parents, counseling for the
3 The GAL’s preliminary report included K.A.T.’s disclosure that “her mom touched her in inappropriate places and so did [her uncle].” CP (Sealed) at 9.
2 No. 47789-1-II
children, and how the parents should behave around the children, but it did not make any
recommendations regarding custody. The GAL e-mailed her final recommendation the weekend
before the scheduled trial date. The GAL’s final recommendation included counseling for the
children and that they be returned to Holt full time with Holt as the primary parent.
The case was tried on May 4, 2015. At trial, the GAL testified that she believed the children
had been coached to make the allegations of abuse. The GAL also testified that she had forensic
interviewing training, and as a result of her investigation, she believed the children were coached.
The GAL further testified that in addition to the children and parents, she spoke to Hicks, who
believed the children’s disclosures were truthful and not coached, and the CID investigator, who
believed the children were coached. The GAL gave more weight to the CID’s findings due to the
amount of collateral information in its investigation.
Thompson and Brandy testified about the children’s poor physical condition when they
picked them up from Holt. Thompson testified that T.L.T. was in “shorts that didn’t fit, [and]
dirty. His shoes were falling apart, [and] dirty. [And h]e didn’t have the bottom soles [on his
shoes].” 1 Verbatim Report of Proceedings (VRP) at 42. C.W.T. “had flip flops, no shoes, dirty
shorts, [and a] dirty shirt.” 1 VRP at 43. Brandy testified that K.A.T. “had on a short skirt that
showed her bottom, and a tied up, like, tight shirt.” 1 VRP at 76-77.
Thompson and Brandy also testified that the children disclosed suffering physical,
emotional, and sexual abuse while with Holt. Specifically, Thompson and Brandy testified about
T.L.T.’s disclosure that “if [he] did not break [Thompson and Brandy] up, [that he] would get
beat” when he returned to Holt. 1 VRP at 79. Brandy also testified about K.A.T.’s disclosures
about abusive hair brushing and inappropriate touching while with Holt. Holt made a hearsay
3 No. 47789-1-II
objection each time Thompson and Brandy testified about what the children said about the abuse.
The trial court overruled the hearsay objections and stated that it “want[ed] to hear how the issue
was disclosed by the child” and wanted to try “to get an understanding of what’s happening from
each witness’s perspective.” 1 VRP at 50, 80.
Thompson sought to admit records from Chaplain Counseling Services, which were
marked exhibits 1-10.4 Chaplain Fry had e-mailed the exhibits to Thompson’s attorney and
testified telephonically at trial that he was intimately involved in the children’s counseling; he
directly supervised the therapists who worked with the children; he reviewed the children’s files;
he was involved with the treatment plans for the children; and he had discussions with the
therapists both before the counseling sessions and after. Chaplain Fry also testified that he was
the custodian of the records; that the records were kept in the ordinary course of the counseling
process; and that they were made at or near the time of counseling. Holt objected to the telephonic
authentication of these exhibits as business records by Chaplain Fry. In response, Thompson’s
counsel represented to the trial court that the documents submitted for admission were true and
correct copies of the documents provided to him by Chaplain Fry.
The trial court acknowledged that Chaplain Fry could not see the exhibits, but it allowed
the telephonic authentication. The trial court admitted the treatment plans (Exhibits 4-6) from
Chaplain Counseling Services. The treatment plans included information that K.A.T. “self-
report[ed] sexual abuse to her father”; all the children disclosed “beatings and being locked in a
4 Exhibits 1-3 are process notes for each child; Exhibits 4-6 are treatment plans for each child; Exhibit 7 contains process notes for group sessions; Exhibit 8 is a timeline prepared by Chaplain Fry (Exhibit 8A is the signed verification page); Exhibit 9 is Chaplain Fry’s letter to the Tacoma Police Department; and Exhibit 10 is Chaplain Fry’s letter to Thompson’s garrison commander.
4 No. 47789-1-II
closet without food for days at a time”; and T.L.T. disclosed Holt “pushed a tire on his leg and it
was almost broken.” Exs. 4-6. The trial court then admitted the signed verification from Chaplain
Fry attesting that he supervised the counseling of the children at Chaplain Counseling Services
(Ex. 8A). The trial court also admitted the letters that Chaplain Fry sent to the Tacoma Police
Department (Ex. 9) and Thompson’s garrison commander (Ex. 10) as a part of his reporting duties.5
Holt and her husband also testified at trial. During her testimony, Holt admitted to
spanking the children with a spoon and roughly brushing her daughter’s hair. Also, Holt’s attorney
extensively questioned them about the claims raised in the Hicks declaration (Ex. 13), reading
significant portions of the Hicks declaration into the record. These claims included K.A.T.’s
disclosures that “[h]er hair would be brushed very roughly” and being “beaten with the hair brush
on [her] head, face, [and] back.” Ex. 13. Other disclosures contained in the Hicks declaration
included: being locked out of the house, being abandoned in various public places, being thrown
into a pool, being hit in the head, and having food withheld. As a result of Holt’s use of the Hicks
declaration, Thompson moved to admit the Hicks declaration. Over Holt’s objection, the trial
court admitted the entirety of the Hicks declaration.
At the conclusion of trial, the trial court found:
2.2.1 The children have been living with the Father for over two years. Although this does not give rise to integration, it does provide a practical resolution to the case and is a large change from the original parenting plan.
2.2.2 During the s[u]mmer 2013 residential time the children revealed a series of chronic abuse events including physical, emotional and sexual in nature. The perpetrator was revealed to be the mother as far as the children were concerned.
5 The remaining exhibits from Chaplain Counseling Services were excluded (Exs. 1, 2, 3, 7, and the remaining pages of Exhibit 8).
5 No. 47789-1-II
2.2.3 The mother admitted to spanking with a plastic spoon, rough hair brushing, and an incident regarding the child being thrown against their will into a pool.
2.2.4 The children sought counseling with Colleen Hicks, LMFT and Chaplain Stephen Fry and his interns. Both counselors recommended specific treatment plans and both suggested that the children were not coached.
Clerk’s Papers (CP) at 87. The trial court also found that:
The following substantial change has occurred in the circumstances of either party or of the children:
2.7.1 The allegations of the children of chronic physical, sexual and emotional abuse were not disclosed at the time of the last parenting plan and the mother[’]s denial does not diminish the severity of those allegations.
2.7.2 The children do not want to go back to their mother[’]s care due to the abuse and potentially other reasons.
2.7.3 The number and variety of the allegations the children reported to everyone were consistent with specific details and that does suggest they were not coached. While there may have been some exaggerations by the children, the non- exaggerations of the children found by their counselors, who are found to be credible, lead to a substantial change in circumstance. The court cannot however dismiss the serious allegations of physical abuse or sexual abuse that may have happened.
2.7.4 The Petitioner satisfied the burden of proof under the detriment environment basis.
2.7.5 Although the Court finds that the children were doing well in the care of their mother in school, this does not diminish the severity of the allegations made by the children.
CP at 88. The trial court declined to follow the GAL’s recommendation and found it “troubling”
because “[o]n the eve of trial she contradict[ed] her original recommendations without providing
any sufficient basis for . . . return[ing] the children to the mother and restrict[ing] the father’s
residential time, except based on coaching, or her conclusion that the children were coached.”
6 No. 47789-1-II
3 VRP at 230. Accordingly, the trial court granted Thompson’s petition to modify the current
parenting plan and placed primary custody of the children with him.
Holt appeals.
ANALYSIS
A. STANDARD OF REVIEW
A trial court’s rulings on a parenting plan are reviewed for an abuse of discretion. In re
Marriage of Christel, 101 Wn. App. 13, 20-21, 1 P.3d 600 (2000). We will not reverse a trial
court’s decision to modify a parenting plan under RCW 26.09.260 unless the trial court exercised
its discretion in an untenable or manifestly unreasonable way. In re Marriage of McDole, 122
Wn.2d 604, 610, 859 P.2d 1239 (1993). A trial court’s decision rests on untenable grounds if the
factual findings are unsupported by the record; it is based on untenable reasons if it relies on an
incorrect standard or the facts fail to meet the correct standard. In re Marriage of Bowen, 168 Wn.
App. 581, 586-87, 279 P.3d 885, review denied, 176 Wn.2d 1009 (2012). A trial court’s decision
is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the
applicable legal standard. Id.
B. ADMISSION OF EVIDENCE
Holt argues that the trial court erred when it admitted the Hicks declaration, the records
from Chaplain Counseling Services, and the testimony of Thompson and Brandy on the children’s
disclosures. We disagree.
We review the trial court’s admission of evidence for an abuse of discretion. State v.
Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). A trial court abuses its discretion when its
decision is based on untenable grounds or untenable reasons. State v. Barnett, 104 Wn. App. 191,
7 No. 47789-1-II
199, 16 P.3d 74 (2001). “Appellate courts cannot substitute their own reasoning for the trial court’s
reasoning, absent an abuse of discretion.” State v. Lord, 161 Wn.2d 276, 295, 165 P.3d 1251
(2007). This court will not reverse based on an error in admitting evidence if it does not result in
prejudice. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Prejudice results if,
within a reasonable probability, the error materially affected the outcome of the trial. Id.
1. The Hicks Declaration
Holt argues that the trial court erred when it admitted the Hicks declaration.6 We hold that
the Hicks declaration was properly admitted under the rule of completeness, ER 106, because
Holt’s attorney read a significant portion of the declaration into the record through his questioning.
Under the rule of completeness, if a party introduces a statement, an adverse party may
require the party to introduce any other part “which ought in fairness to be considered
contemporaneously with it.” ER 106; State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001),
review denied, 146 Wn.2d 1022 (2002). Once part of a statement has been introduced into
evidence, a party is entitled to seek admission of the remainder of the statement. State v. Alsup,
75 Wn. App. 128, 133, 876 P.2d 935 (1994); see also Am. Aviation, Inc. v. Hinds, 1 Wn. App. 959,
962, 465 P.2d 676 (1970) (holding that when records are inquired into by one party, the other party
may be allowed to place the entire records before the court).
6 Holt argues on appeal that the trial court erroneously admitted the Hicks declaration because Hicks did not testify and the business records exception does not apply. However, Holt only argued to the trial court that the Hicks declaration should not be admitted because Hicks did not testify and the declaration was not authenticated. In the trial court and on appeal, Thompson argues that the Hicks declaration is admissible because Holt’s counsel read substantial portions of the contents of the declaration into the record during Holt’s testimony.
8 No. 47789-1-II
Here, Holt’s attorney read a substantial number of the children’s statements that were
contained in the Hicks declaration during direct examination of Holt and her husband. Given
Holt’s introduction of a significant portion of the Hicks declaration during questioning, Holt has
failed to show that the trial court abused its discretion in admitting the entirety of the declaration.
ER 106. Therefore, we hold that the trial court properly admitted the Hicks declaration under ER
106.
2. Telephonic Authentication
Holt next argues that the trial court erred when it allowed Chaplain Fry to telephonically
authenticate the records from Chaplain Counseling Services as business records.7 We disagree.
Under RCW 5.45.020, records
of an act, condition or event, shall . . . be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
The proponent must demonstrate that the record in question is a record of the business entity in
question. State v. DeVries, 149 Wn.2d 842, 847-48, 72 P.3d 748 (2003). A business record may
be authenticated through production by the custodian and identification by someone who has
supervised its creation. State v. Smith, 16 Wn. App. 425, 433, 558 P.2d 265 (1976).
Holt relies on DeVries, where the Washington Supreme Court held that the trial court
abused its discretion when it admitted a lab report of a urine test because the exhibit was not
7 This argument applies to the treatment plans of the children (Exs. 4-6), the signed verification page (Ex. 8A), and the letters from Chaplain Fry to the Tacoma Police Department and garrison commander (Exs. 9 and 10).
9 No. 47789-1-II
properly identified and authenticated. 149 Wn.2d at 848. In DeVries, a lab report on a urine test
was telephonically authenticated by the emergency room doctor that ordered the test; however, the
doctor did not have the report in front of him when he testified nor did he have the report in his
file. 149 Wn.2d at 845. Moreover, the prosecutor repeatedly and incorrectly referred to the report
as a blood test. Id. at 847. The court held that the trial court abused its discretion when it admitted
the lab report without proper foundation. Id. at 848. The court reasoned that the doctor could not
say the report he saw before was the same one sought to be admitted and that the identification of
the exhibit was further confused by the prosecutor’s repeated reference to the exhibit as a blood
test. Id. at 847.
The present case is distinct from Devries because the custodian, Chaplain Fry, testified that
he was the custodian of the records provided to Thompson’s counsel, he was responsible for
maintaining the records, the documents submitted to Thompson’s counsel were kept in the
ordinary course of the counseling process, the records were made at or near the time of counseling,
and that the copies he submitted to Thompson’s counsel were true and correct copies of the file he
maintained.8 Chaplain Fry also testified that although he did not personally have a therapeutic
relationship with the children, he directly supervised the therapists who worked with the children,
he reviewed the children’s files, he was involved with the treatment plans for the children, he had
discussions with the therapists both before the counseling sessions and after, and he was intimately
involved in the children’s counseling.
8 Thompson’s counsel represented to the trial court that the documents submitted for admission were true and correct copies of the documents provided to him by Chaplain Fry.
10 No. 47789-1-II
Chaplain Fry’s testimony properly authenticated the counseling records from Chaplain
Counseling Services. Therefore, we hold that the trial court did not abuse its discretion in
admitting the counseling records.
3. Thompson and Brandy’s Testimony
Holt argues that the trial court erred when it admitted Thompson and Brandy’s testimony
about the disclosures of abuse the children made to them. We hold that the trial court abused its
discretion in admitting such testimony because it was hearsay with no applicable exception.
However, we also hold that the admission was harmless error.
a. Hearsay
Under ER 801(c), hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Such
statements are generally inadmissible unless an exception applies. ER 802, 803, 804.
Here, Thompson and Brandy testified to the children’s disclosures of abuse they suffered
while with Holt. Holt objected on the basis of hearsay, but the trial court allowed this testimony
to continue. Although the court specified that it “want[ed] to hear how the issue was disclosed by
the child” and try “to get an understanding of what’s happening from each witness’s perspective,”
this reasoning does not fall under an applicable hearsay exception. 1 VRP 50, 80. Thompson and
Brandy testified to “statement[s], other than one made by the declarant while testifying at the trial,”
as such, the testimony was hearsay. ER 801(c). Therefore, we hold that the trial court abused its
discretion when it admitted the testimony of Thompson and Brandy about the children’s
disclosures.
11 No. 47789-1-II
b. Harmless Error
An error in admitting evidence that does not prejudice the defendant is not grounds for
reversal. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571
(1983). Prejudice exists when, within reasonable probabilities, the outcome of the trial would have
been materially affected had the error not occurred. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d
961 (1981). The improper admission of evidence constitutes harmless error if the evidence is
minor in comparison to the overall, overwhelming evidence as a whole. Bourgeois, 133 Wn.2d at
403.
At trial, Thompson and Brandy testified that T.L.T. told them that if he did not break up
Thompson and Brandy, he would get beat when he returned to Holt. Brandy also testified that
K.A.T. disclosed abusive hair brushing and inappropriate touching while with Holt. While this
testimony constituted hearsay and was erroneously admitted, as discussed above, such admissions
were harmless because these allegations were presented through other pieces of evidence.
The same allegations that Brandy testified to were also presented within the children’s
treatment plans, the Hicks declaration, and the GAL’s preliminary report, which were properly
admitted. Specifically, K.A.T.’s treatment plan stated that she “self-report[ed] sexual abuse to her
father,” the Hicks declaration stated that “[h]er hair would be brushed very roughly” and she
“would be beaten with the hair brush on [her] head, face, [and] back,” and the GAL’s preliminary
report stated that “her mom touched her in inappropriate places and so did [her uncle].” Exs. 4,
13; CP (Sealed) at 9. And while Thompson’s testimony of T.L.T.’s exact disclosures were not
found within the other evidence, a multitude of other disclosures of abuse were presented. The
children’s treatment plans included disclosures of “beatings and being locked in a closet without
12 No. 47789-1-II
food for days at a time”; T.L.T.’s treatment plan also included a disclosure that Holt “pushed a tire
on his leg and it was almost broken.” Exs. 4-6. Furthermore, the Hicks declaration included
disclosures of the children being locked out of the house, being abandoned in various public places,
being thrown into a pool, being hit in the head, and having food withheld. Considering all the
evidence, the outcome of the trial would not have been materially affected had the error not
occurred. Tharp, 96 Wn.2d at 599. Therefore, the admission of Thompson and Brandy’s hearsay
testimony about the children’s disclosures of abuse was harmless error.
C. SUBSTANTIAL EVIDENCE
Holt argues that the trial court erred when it concluded that substantial evidence supported
a finding that Holt’s home was a detrimental environment. We disagree.
We review a trial court’s findings of fact to determine whether substantial evidence
supports the findings and whether those findings support the conclusions of law. Scott’s
Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335, 341, 308 P.3d 791 (2013),
review denied, 179 Wn.2d 1011 (2014). Substantial evidence exists when there is evidence
sufficient to persuade a rational fair-minded person the premise is true. Sunnyside Valley Irrig.
Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).
All reasonable inferences from the facts are viewed in the prevailing party’s favor. Scott’s
Excavating, 176 Wn. App. at 342. And we do not “disturb findings of fact supported by substantial
evidence even if there is conflicting evidence.” Merriman v. Cokeley, 168 Wn.2d 627, 631, 230
P.3d 162 (2010). We also defer to the trial judge on issues of witness credibility and
persuasiveness of the evidence. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 (2002).
13 No. 47789-1-II
RCW 26.09.260 governs modifications of parenting plans:
(1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.
(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:
....
(c) The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Holt challenges several of the trial court’s findings and conclusions. Holt argues that the
only evidence supporting the trial court’s findings were the inadmissible hearsay statements
Thompson testified to, the inadmissible hearsay statements Brandy testified to, the inadmissible
Hicks declaration, and the statements in the inadmissible Chaplain Counseling Services records.
However, each of these challenges have been addressed above, and except for the inadmissible
hearsay statements that Thompson and Brandy testified to, the trial court did not abuse its
discretion in admitting the evidence. The erroneous admission of the children’s hearsay statements
through Thompson and Brandy was harmless because those same or similar statements were
properly admitted through the children’s treatment plans from Chaplain Counseling Services, the
Hicks declaration, and the GAL’s preliminary report. Therefore, substantial evidence supports
each of the trial court’s findings, and the findings support the trial court’s conclusions.
14 No. 47789-1-II
C. FAILURE TO FOLLOW GAL’S RECOMMENDATION’S
Holt argues that the trial court abused its discretion because it declined to follow the GAL’s
recommendation to place the children in Holt’s primary care. We disagree.
A GAL is appointed to investigate the child and family situation for the court and to make
recommendations about appropriate parenting arrangements. RCW 26.09.220; Fernando v.
Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380, review denied, 133 Wn.2d 1014 (1997).
However, the trial court is “free to ignore the [GAL’s] recommendations if they are not supported
by other evidence or it finds other testimony more convincing.” Id. The court is not bound by the
GAL’s recommendations because the child’s interests are paramount. McDaniels v. Carlson, 108
Wn.2d 299, 312, 738 P.2d 254 (1987).
Here, the GAL’s final recommendation was to return the children to Holt full time and
grant her primary custody because the GAL believed that the children had been coached to make
their allegations of abuse. The trial court found the GAL’s final recommendation unconvincing.
The trial court reasoned that the GAL’s report was “troubling” because “[o]n the eve of trial she
contradict[ed] her original recommendations without providing any sufficient basis for . . .
return[ing] the children to the mother and restrict[ing] the father’s residential time, except based
on coaching, or her conclusion that the children were coached.” 3 VRP at 230. Instead, the trial
court found that the children’s counselors were in the best position to determine whether the
children were coached, the counselors were credible, and the counselors suggested the children
were not coached. Also, the evidence showed that the children had made numerous and consistent
allegations of physical, emotional, and sexual abuse suffered while in Holt’s care, as discussed
15 No. 47789-1-II
above. Therefore, in light of the evidence, we hold that the trial court did not abuse its discretion
by declining to follow the GAL’s recommendation.
We affirm.
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 in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Johanson, J.
Bjorgen, C.J.