In re McCann

424 P.3d 234
CourtCourt of Appeals of Washington
DecidedAugust 20, 2018
DocketNo. 76113-7-I
StatusPublished
Cited by9 cases

This text of 424 P.3d 234 (In re McCann) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McCann, 424 P.3d 234 (Wash. Ct. App. 2018).

Opinion

Appelwick, C.J.

¶ 1 Orr seeks a new trial because the trial court denied her accommodations for disability sought pursuant to GR 33. She argues that she was denied a fair trial and that her constitutional rights were violated as a result. But, Orr failed to establish that she had a disability entitling her to accommodation under GR 33. We affirm.

FACTS

¶ 2 The care of the parties' special needs child was the central issue in this dissolution proceeding. Leslie Orr's1 and Jeffery McCann's daughter was born on August 24, 2004. The daughter has been diagnosed with high-functioning autism, separation anxiety, obsessive-compulsive disorder (OCD), and selective mutism. The parenting plan evaluation, authored by Clinical and Forensic Psychologist *237Dr. Gary Wieder, concluded that the daughter is "profoundly impaired and has lived a sheltered and unusual life." Dr. Wieder warned that "[w]ithout intensive specialized treatment for separation anxiety and OCD she will likely become a disabled adult." The daughter was completely estranged from her father for reasons that Dr. Wieder described as "completely irrational" and "a manifestation of [the daughter's] severe anxiety/OCD."

¶ 3 Following trial, the court granted McCann full decision making authority for the child's education and medical care, and ordered that the child be transitioned to live with McCann half of the time.2 It appointed a guardian ad litem. It also ordered McCann to pay spousal support and awarded him the family residence. Orr does not assign error to the substance of the dissolution decree or related orders. Instead, she seeks a new trial based on the failure of the trial court to accommodate her disability during the trial.

¶ 4 Orr filed for dissolution from McCann on October 26, 2015. Trial was set for September 26, 2016. The discovery cut off was August 26, 2016. Dr. Wieder completed the parenting evaluation in June 2016. Mediation was scheduled for August 29, 2016.

¶ 5 Orr was represented by three different attorneys in the extensive pretrial litigation during the nine months after she filed for dissolution. Her last counsel withdrew on July 18, 2016 and Orr proceeded pro se through trial. The proceedings from this point forward relative to accommodation are at issue in this appeal.

¶ 6 On August 9, 2016, Orr resumed the discovery process and issued multiple subpoenas duces tecum for business records.3 On August 26, 2016, the day of the discovery cutoff and one month before trial, Orr e-mailed a request for a 30 day trial continuance. The basis for her request was to give her time to identify potential accommodations for an alleged disability. The request was e-mailed to the King County Superior Court deputy court administrative officer. She was not in the office. On September 2, 2016, the Friday before the Labor Day weekend, the administrative officer forwarded the request to the assigned trial court.

¶ 7 The mediation set for August 29, 2016 was unsuccessful.

¶ 8 On September 7, 2016, the trial court denied the request for a continuance, because it had not been served on McCann as required by CR 5, could potentially affect court proceedings, and prejudice McCann.

¶ 9 On September 14, 2016, less than two weeks before trial, Orr submitted additional information to the trial court in support of her continuance request. She provided a completed request for accommodation form, on which she described her disability as a "[p]sychiatric injury either caused by or exacerbated by the stress regarding protecting and providing for her daughter with developmental disabilities." With this submission, she included a declaration from Dr. Karin Huffer, a licensed therapist. Dr. Huffer's curriculum vitae stated that she had a high honorary Doctor of Philosophy (PhD) in counseling and forensic psychology from Kings International University of Science and Technology, Delaware and Republic of Dominica, based on her research and work, and was an adjunct professor of Professional Studies at John Jay College of Criminal Justice. She described herself as an Americans with Disability Act of 19904 (ADA) advocate. Dr. Huffer described Orr as "a qualified person under the Americans with Disabilities Act Amendments Act due to psychiatric injury either caused by or exacerbated by the stress regarding protecting and providing for her daughter with developmental disabilities." The materials did not include documentation of a medical diagnosis of posttraumatic stress disorder (PTSD) or any other disability. Nevertheless, Dr. Huffer stated that Orr *238needed a disability advocate with her at all times during trial, and Orr required a 30 day continuance to properly evaluate what accommodations were necessary.

¶ 10 On September 16, 2016, Orr filed an addendum to her accommodation request, this time seeking a continuance until December 1, 2016. The majority of this addendum discussed the voluminous discovery that Orr had received from her August 9 subpoenas and the time she needed to adequately review this discovery. Two sentences of that addendum noted that disability accommodations "are still not in place" which had hindered her access to justice and caused her to miss deadlines and procedures. The only accommodation requested by Orr in her previous filing was that an ADA advocate be present during trial. Orr's memorandum did not identify what deadlines or procedures she had missed.

¶ 11 McCann objected to the continuance. On September 23, the trial court again denied the requests for continuance in the September 14 and 16 filings.

¶ 12 Trial commenced on September 26, 2016. Orr made a request for a two week continuance: "I have an attorney who is willing to represent me,... and can do it with a short continuance of two weeks. I do not feel I am prepared or able to represent myself in this matter. I am extremely afraid of cross[-]examining and directly examining Jeff." The trial court denied the request, reasoning,

I understand that request. That request is again denied. You have made that a few times. I understand the reluctance that someone has representing themselves, but you have had an opportunity to obtain an attorney. You have had at least a
couple of attorneys representing you in this matter. I have also had the opportunity to interact with you in court and receive your written material, which is of high quality in advocating your position. So I respect what you are asking for, but that request is denied.[5 ],[6 ]

¶ 13 The issues at trial generally involved the care of the daughter, property division, and maintenance. Orr began her case-in-chief by calling McCann as a witness and examining him at length.

¶ 14 Next, she called Dr. Huffer, who testified by phone. Dr. Huffer testified that she teaches an Americans with disabilities certification course, and she testified about how the parties' child should be accommodated. She did not testify that she had diagnosed Orr with any specific disability, nor that she was competent to do so. On cross-examination she testified that she supplied a "functional evaluation" regarding accommodations necessary for Orr. She did not elaborate on what a functional evaluation means.

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Cite This Page — Counsel Stack

Bluebook (online)
424 P.3d 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mccann-washctapp-2018.