In Re Parenting and Support of Sml

173 P.3d 967
CourtCourt of Appeals of Washington
DecidedDecember 4, 2007
Docket35142-1-II
StatusPublished
Cited by5 cases

This text of 173 P.3d 967 (In Re Parenting and Support of Sml) 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 Parenting and Support of Sml, 173 P.3d 967 (Wash. Ct. App. 2007).

Opinion

173 P.3d 967 (2007)

In re the Parenting and Support of SML, Child.
Kassie S. DUGGER, Petitioner,
v.
Theodore R. LOPEZ, Respondent.

No. 35142-1-II.

Court of Appeals of Washington, Division 2.

December 4, 2007.

*968 Matthew Jeffrey Bellmer, Attorney at Law, Tacoma, WA, for Petitioner.

Theodore Robert Lopez (Appearing Pro Se), Spanaway, WA.

VAN DEREN, A.C.J.

¶ 1 Kassie Dugger appeals the trial court's award of primary residential time with SML,[1] her minor daughter, to Theodore Lopez, SML's father. She argues that the trial court abused its discretion by not appointing a guardian ad litem (GAL) for SML and by ordering a parenting plan that was not in SML's best interests. We hold that, absent circumstances raising concern for the child's welfare and safety, the trial court is not required to appoint a GAL for the child in an action under chapter 26.26 RCW solely to establish a parenting plan between acknowledged, legal parents. We affirm.

¶ 2 Kassie Dugger, 28 years old,[2] and Theodore Lopez, 46 years old,[3] are the parents of a daughter, SML, 7 years old.[4] Dugger and Lopez were never married, but Lopez acknowledged paternity of SML when she was born. In 2001, when Dugger and Lopez ended their relationship, SML primarily resided with Lopez. In 2005, day care costs became prohibitively high for Lopez; Dugger began physically caring for SML on a regular basis.

¶ 3 When SML reached school age, Dugger wanted her to attend the same school in her neighborhood that her other two children attended. Originally, Dugger and Lopez agreed that SML would attend school in Dugger's neighborhood with the stipulation that Dugger would pick her up from Lopez's home before school and return her after school.[5] Later, Dugger changed her mind and had SML stay with her during the week and with Lopez during the weekends.[6]

¶ 4 In 2006, Dugger and Lopez filed separate petitions under chapter 26.26 RCW to establish a parenting plan for SML in which each asked to be designated as her primary residential parent. Both sought ex parte restraining orders and custody of SML before the initial show cause hearing. Lopez requested that a GAL be appointed for SML at the show cause hearing.

¶ 5 At the show cause hearing, the trial court refused to appoint a GAL for SML and ordered a temporary parenting plan in which Dugger had custody of SML during the school week, but Lopez would have custody of her during the weekends. SML's custody *969 over the summers and holidays was split fairly evenly.

¶ 6 Twelve days before the scheduled trial on the final parenting plan, Dugger moved to continue the trial because (1) she wanted a GAL appointed to determine SML's best interests, (2) "[d]ue to lack of discovery," and (3) "[l]ack of [k]nowledge or experience of [l]ocal [l]aws and [r]ules of the court." Clerk's Papers (CP) at 35.

¶ 7 The trial court heard the motion for the continuance on the day of trial.

THE COURT: So you want a parenting investigator appointed?
MS. DUGGER: If the two of us cannot agree, and that seems to be what it is, that we cannot agree, so that's the only—
THE COURT: No, I mean, that's the basis for the continuance?
MS. DUGGER: Yeah, is due to the fact that we cannot agree, and therefore I feel a guardian ad litem probably needs to be appointed so that way you're not the one having to decide whether she goes with her dad or she goes with me or it doesn't draw out this trial as being—you know, us fighting back and forth.
THE COURT: Do you have $750 to pay the clerk today—
MS. DUGGER: No.
THE COURT:—for the parenting investigator to be appointed? MS. DUGGER: No.
MR. LOPEZ: Nor I, sir.
THE COURT: Do you have that?
MR. LOPEZ: No, sir. I'm supporting two families. I'm supporting my daughter at my house, and now with the garnishment I'm supporting my daughter at her house. I cannot afford that, no, sir.

Report of Proceedings (RP) (Feb. 14, 2007) at 11-12. After asking about the garnishment of Lopez's wages, medical care, and any other persons living in their households, the court took a recess and then denied the motion for the continuance.

I don't see any way that either of you can pay for a guardian ad litem, and while I think that it would be helpful in this case, under the local rule, it requires that you split the cost and pay money into the clerk's office before the guardian ad litem is appointed, and I don't know of any guardian ad litems that will do it pro se, or excuse me, pro bono,[[7]] so I'm going to go ahead and take testimony from each of you. I probably won't be able to rule today and I'll probably want more information from each of you.

RP (Feb. 14, 2007) at 20. Essentially, the dispute over the parenting plan centered around which of the parents would have SML during the school week.

¶ 8 The trial court reviewed the court file and heard testimony from Dugger and Lopez. Dugger testified that she is currently married to an electrician,[8] was previously married twice, and is a stay-at-home mother. She has two older children from other relationships who reside with her. She and her husband own their own home and, when SML resides with her, SML shares a room with Dugger's other minor daughter.

¶ 9 The trial court also considered evidence that Dugger was referred to Child Protective Services (CPS). She experienced complications with the birth of her first child and was given pain medication. Her aunt became worried that she was addicted to the pain medication and reported her to CPS. After a few visits the case was closed, but Dugger did not recall whether the referral was "founded or unfounded or inconclusive." RP (Feb. 14, 2006) at 24.

¶ 10 Other evidence showed that Dugger filed a domestic violence report against an individual in 1998, was charged with operating a motor vehicle without an operator's license or insurance, and pleaded guilty to reckless burning in January 2003. From *970 2002 to August 2004, her other two children resided with her parents in Indiana because of her pending criminal case and fear of a possible jail sentence. The children returned to her care after she pleaded guilty to reckless burning, but was not incarcerated.

¶ 11 Lopez testified that he is currently an assistant manager at Wal-Mart, where he works approximately 50 to 52 hours per week on a schedule that varies from week to week. He lives in a rented four-bedroom home with his fiancée, her minor daughter, his adult brother, and SML. Lopez's fiancée is a department manager at Wal-Mart and works regular weekday hours. When SML is with Lopez during his workweek he takes her to day care in the morning, day care puts her on the bus to school, and she is bussed back to day care after school.

¶ 12 Lopez alleged in his proposed parenting plan that he had "concerns about long-term emotional or physical impairment on the mother's part which interferes with the performance of parenting functions and the abusive use of conflict by the parent which creates a danger of serious damage to the child's psychological development." RP (Feb. 14, 2006) at 37. He based the allegations on his belief that Dugger was saying disparaging things about him to SML and asking her to choose sides between her father and her mother.

¶ 13 Dugger alleged that Lopez was taking similar actions.

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