IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
) In re the Parentage of: ) No. 75718-1-1 T.J.(dob: 10/12/11) and ) I.J. (dob: 12/29/12), ) DIVISION ONE ) Minor Children. ) ) ANDREA ANTHONY, ) UNPUBLISHED crl c cDfl-ri ) -n V'„- Respondent, ) FILED: July 31, 2017 GO
) (J)r'n "PP v. ) r- - e5 ) • c5)
AWAN JOHNSON, ) C?,
) Appellant. ) )
Cox, J. — Awan Johnson challenges the trial court's modifications to a
parenting plan. The trial court had jurisdiction to order these modifications and
did not abuse its discretion in doing so. The trial court did not abuse its
discretion in admitting expert testimony concerning a forensic psychological
evaluation of Johnson. We affirm and award appellate attorney fees to Andrea
Anthony, subject to her compliance with RAP 18.1(d).
Anthony and Johnson shared an intimate relationship for four years. They
had two children in that time, T.J. and I.J. Johnson also had an older child, G.R.
from a prior relationship.
After her relationship with Johnson ended, Anthony petitioned to establish
a parenting plan. The two agreed to a plan under which they shared decision- No. 75718-1-1/2
making authority. The plan's residential schedule limited Johnson's residential
time, but that time would increase based on his compliance with certain
conditions.
Soon after the order on the agreed plan was entered, T.J. started
behaving aggressively at home and in school. Johnson suggested that T.J. stay
overnight with him, knowing the prospect frightened him. T.J.'s behavior
worsened and became sexual. It appeared that sexual interactions between
G.R. and T.J. may have triggered this behavioral change. Johnson refused to
cooperate with Anthony and intervene with either child. Concerned, Anthony
then petitioned to modify the parenting plan.
The matter eventually went to trial. The trial court, in its final order, made
findings of domestic violence and refusal to perform parenting functions as to
Johnson. The court also found the absence of emotional ties between Johnson
and his children. Based on these findings, it entered a final parenting plan
restricting Johnson's residential time to phased in visitations under supervision.
It also imposed upon him several therapeutic education requirements. It required
that Johnson keep T.J. and I.J. away from G.R. And it transferred substantial
decision-making, jointly held before, to Anthony's sole authority.
Johnson appeals.
SCOPE OF MODIFICATIONS
Johnson argues that the major modifications to the parenting plan should
be vacated because the trial court lacked jurisdiction to order them. We
disagree.
2 No. 75718-1-1/3
We first note that the trial court indisputably had subject matter
jurisdiction.1 Johnson's argument is directed to the trial court's authority to order
these specific modifications, not its subject matter jurisdiction to do so.
A trial court's authority to modify a parenting plan is strictly controlled by
statute.2 RCW 26.09.260 provides several grounds on which a trial court may
order such a modification.
RCW 26.09.260(1) authorizes a trial court to order major modifications to
a parenting plan when a substantial change has occurred in the circumstances of
either the child or the nonmoving party. The modification must also be in, and
necessary to serve, the child's best interests.3 The court may order modifications
to the residential schedule when it finds one of the circumstances in RCW
26.09.260(2) present. These include when "[t]he child's present environment is
detrimental to the child's physical, mental, or emotional health and the harm likely
to be caused by the change of environment is outweighed by the advantage of a
change to the child."
Under RCW 26.09.260(5), a trial court may order minor modifications to
the residential schedule, absent a RCW 26.09.260 circumstance, if a substantial
change has occurred. A minor modification is one that affects no more than 24
days in a calendar year. Because modifications under this subsection are called
I See WASH. CONST. art. 4,§ 6.
2 In re Marriage of McDevitt, 181 Wn. App. 765, 769, 326 P.3d 865(2014).
3 RCW 26.09.260(1).
4 RCW 26.09.260(2)(c).
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minor, limited in scope, and require a lesser showing, while modifications under
RCW 26.09.260(1) are not called minor, are not limited, and require a greater
showing, the latter may properly be called major.
Other subsections of the statute permit the trial court to make certain
modifications without a showing of substantial change. Under RCW
26.09.260(4), the trial court may reduce contact between the child and the
"parent with whom the child does not reside a majority of the time." To do so, it
must find that the modification would serve the child's best interests based on the
criteria in RCW 26.09.191. These criteria include, amongst others, "a substantial
refusal to perform parenting functions," "neglect or substantial nonperformance of
parenting functions," and "[s]uch other factors or conduct as the court expressly
finds adverse to the best interests of the child."5
RCW 26.09.260(10) allows the trial court to modify nonresidential portions
of the parenting plan without considering the RCW 26.09.260(2) circumstances
so long as a substantial change has occurred and the adjustment would serve
the child's best interests.
We review for abuse of discretion parenting plan modifications.6 That
discretion is notably broad in matters of child welfare.7 Unchallenged findings
are verities on appea1.5
5 RCW 26.09.191(1),(3)(a),(g).
6 In re Marriacie of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).
7 Id.
8 Choi v. Sung, 154 Wn. App. 303, 313, 225 P.3d 425 (2010).
4 No. 75718-1-1/5
Here, Anthony's petition asserted the proper statutory grounds for both
major and minor modifications. At paragraph 2.8, she cites RCW 26.09.260(1)
and (2). She alleges that a substantial change had occurred and as a
consequence, the "children's environment under the custody decree/parenting
plan/residential schedule is detrimental to the children's physical, mental[,] or
emotional health." On this basis, she argued that a modification would be in the
children's best interest. As just discussed, this standard and these subsections
provide the grounds for a major modification.
At paragraph 2.9, Anthony alleges that the residential schedule should be
modified because a reduction of Johnson's residential time would serve the
children's best interests. She cites RCW 26.09.260(4) or(8) in support. A trial
court acting under RCW 26.09.260(4) must consider the criteria in RCW
26.09.191. Anthony identifies three of those criteria in this paragraph.
Paragraph 2.10 alleges grounds for a minor modification as acknowledged
by Johnson and in accordance with RCW 26.09.260(5).
Lastly, paragraph 2.12 alleges that the nonresidential provisions of the
parenting plan should be adjusted because of a substantial change of
circumstance and the best interests of the child. This paragraph cites and is in
accordance with RCW 26.09.260(10).
Johnson argued in closing below that Anthony was only asking for the
minor modification indicated in paragraph 2.10, and thus the trial court could not
order a major modification. The trial court properly disagreed. It described this
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paragraph as "an alternate pleading rather than the sole basis for what was being
done." A plain reading of the record shows this to be true.
Johnson further argues that, irrespective of its statutory authority, the trial
court lacked "'jurisdiction to grant relief beyond that sought in the complaint.'"9
This argument is not persuasive.
Johnson relies for this contention on In re Marriage of Leslie.19 In that
case, Barbara Jean Hartman had petitioned for divorce from Charles Leslie.11
Her petition did not ask for medical expenses.12 But she subsequently petitioned
to modify the dissolution decree to require Leslie pay for their child's orthodontic
care.13 The trial court granted this petition.14 Leslie then moved for relief from
this new requirement.15 The trial court denied his motion and he appealed.16
9 OpeningBrief of Appellant at 10 (quoting In re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013(1989)).
19 112 Wn.2d 612, 772 P.2d 1013(1989).
11 Id. at 614.
12 Id.
13 Id.
14 Id. at 615.
15 Id. at 616.
16 Id.
6 No. 75718-1-1/7
The supreme court reversed, holding that "a court has no jurisdiction to
grant relief beyond that sought in the complaint. To grant such relief without
notice and an opportunity to be heard denies procedural due process."17
But here, the petition gave Johnson notice. And Johnson had the
opportunity to be heard throughout the litigation below. Thus this case is
distinguishable.
Johnson also relies on In re Marriage of Shryock.18 In that case, the trial
court denied one parent's petition to modify the parenting plan, finding no
substantial change had occurred and thus the statutory criteria for modification
were not met.19 But it adopted a parenting plan proposed by the other parent.2°
The court of appeals reversed the adoption of this proposed plan.21 It held
that the trial court had abused its discretion for entering such an order despite
"finding there were no statutory reasons justifying modification."22
Here, there were sufficient statutory reasons to justify the petition as
discussed earlier in this opinion. Thus, this case is distinguishable.
17 Id. at 617.
18 76 Wn. App. 848, 850, 888 P.2d 750 (1995).
19 Id. at 849-50. 20 id.
21 Id. at 849.
22 Id. at 851.
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DR. GARY WIEDER'S TESTIMONY
Johnson also argues that the trial court abused its discretion in
considering testimony from Dr. Wieder because the testimony was based on
improperly disclosed information. We disagree.
Johnson argues that Dr. Marsha Hedrick inappropriately disclosed his
psychological evaluation to Dr. Wieder and that Dr. Wieder inappropriately
disclosed this information to the court, all in violation of statute and regulation.
He contends that such disclosures were illegal without his written consent.
Johnson relies for this argument upon Washington's Uniform Health Care
Information Act at chapter 70.02 RCW,WAC 246-924-445, and HIPAA. None of
these support his position.
We seek, in construing a statute, to ascertain and carry out the
legislature's intent.23 We do so primarily by reading the plain meaning of the
statutory language.24
Within the Uniform Health Care Information Act, RCW 70.02.020(1)
prohibits health care providers from disclosing "health care information about a
patient to any other person without the patient's written authorization."
Elsewhere, this chapter defines "[h]eaIth care information" as information
"that identifies or can readily be associated with the identity of a patient and
23 Thorpe v. Inslee, 188 Wn.2d 282, 289, 393 P.3d 1231, 1234(2017). •
24 Id.
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directly relates to the patient's health care."25 "Health care" is "any care, service,
or procedure provided by a health care provider" either to "diagnose, treat, or
maintain a patient's physical or mental condition" or that "affects the structure or
any function of the human body."26 A person who "receives or has received
health care" is a "[p]atient."27
Public policy, as expressed by the legislature, dictates "that a patient's
interest in the proper use and disclosure of the patient's health care information
survives even when the information is held by persons other than health care
providers."28
WAC 246-924-445 establishes "minimum standards for conducting
parenting evaluations." Subsection (10) sets such standards for the written
records psychologists must maintain in the course of such examinations. These
include "[c]ourt order or signed consent from all parties to conduct the evaluation"
and "[a]ppropriate court order or signed authorizations for release of
information."29
Lastly, HIPAA is an expansive federal statute governing the maintenance
and transfer of healthcare information.30
25 RCW 70.02.010(16).
26 RCW 70.02.010(14)(a)(b).
27 RCW 70.02.010(31).
25 RCW 70.02.005(4). 29 WAC 246-924-445(10)(a)(c).
39 Pub. L. 104-191, Aug. 21, 1996, 110 Stat. 1936.
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Johnson's argument concerns whether trial court properly admitted Dr.
Wieder's testimony in spite of these alleged legal barriers. We review for abuse
of discretion the trial court's admission of testimony. And we will not reverse
unless the error prejudiced the result below.
Here, the court ordered that Johnson "promptly undergo a complete
psychological evaluation[] with Dr. Hedrick" based upon the GAL's
recommendation. It further ordered that Dr. Hedrick would conduct the
evaluation as "she deems appropriate."
According to Dr. Hedrick's evaluation, an informed consent form was
provided to Johnson. This form explained "that the examination was not therapy,
and that forensic evaluations are not confidential and not covered by therapist-
patient privilege."31 It also explained that its "focus is to generate legally relevant
hypotheses and provide information to the court."32 According to Dr. Hedrick,
Johnson "indicated that he understood and agreed to the above by signing the
necessary consent form."33
Anthony's forensic psychologist, Dr. Wieder, testified that he had reviewed
Dr. Hedrick's psychological evaluation. He questioned Dr. Hedrick's conclusion
that Johnson's clinical scales were not elevated beyond the normal range. He
independently analyzed the evaluation based on his expertise. He concluded
31 Trial Exhibit 31 at 493.
32 Id.
33 Id.
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that Johnson's profile was associated with angry outbursts and violence, raising
concerns about the children's well-being.
Upon cross-examination, Dr. Wieder testified that he could not recall how
he had obtained the evaluation but could "dig up" the answer if the court
required. Neither party nor the court made such a request.
The authorities just discussed did not bar Dr. Hedrick from disclosing
Johnson's evaluation to Dr. Wieder. Nor did they bar Dr. Wieder from testifying
based on his review of that evaluation.
First, the informed consent form Johnson signed shows that he
understood the evaluation was not confidential. Johnson does not explain why
this is insufficient as written authorization for disclosure.
Second, the state law authorities, Washington's Uniform Health Care
Information Act and WAC 246-924-445, do not apply. The Uniform Health Care
Information Act applies to the protection of patients' health care information. As
defined above, health care is a service to "diagnose, treat, or maintain a patient's
physical or mental condition" or that "affects the structure or any function of the
human body."34 One who receives such care is a patient.
But here, the evaluation was for forensic purposes, to "generate legally
relevant hypotheses and provide information to the court."35 It was not for health
34 RCW 70.02.010(14)(a)(b).
35 Trial Exhibit 31 at 493.
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care purposes.36 Thus, Johnson was not a patient in regards to this information.
Even were it otherwise, Johnson cites no authority holding that evidentiary
exclusion is the proper remedy under these circumstances.37 He argues only
that remedies exist outside the Uniform Health Care Information Act.
Accordingly, the Uniform Health Care Information Act did not govern disclosure
of this information.
WAC 246-924-445 sets standards for the conduct of parenting
evaluations. Johnson cites nothing in the record that indicates Dr. Hedrick
conducted a parenting evaluation. Not only did Dr. Wieder have the necessary
authorization, but the court ordered the evaluation conducted. Thus, even if this
regulation applied, the requirements for possession of a written authorization or
court order permitting disclosure would be met. Dr. Wieder offered to "dig up"
such documents but Johnson never requested therm
Lastly, we need not address Johnson's HIPAA argument. This legislation
is expansive and Johnson's "[p]assing treatment" fails to specify any provision
pertaining to disclosure under these circumstances.38
Nor can Johnson show that any alleged error prejudiced him. The trial
court's extensive findings, unchallenged on appeal, gave sufficient basis for its
36 Id.
87 See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 248, 350 P.3d 647(2015); RAP 10.3(a)(6).
38 Christian v. Tohmeh, 191 Wn. App. 709, 728, 366 P.3d 16 (2015).
12 No. 75718-1-1/13
conclusions and order. Thus, even if the trial court abused its discretion, the
abuse was harmless to the result below.39
Johnson argues in his reply brief that a New York trial court opinion
persuasively suggests that the trial court here abused its discretion in admitting
Dr. Wieder's testimony. This argument is unpersuasive.
In Ochs v. Ochs, the trial court appointed a neutral forensic psychologist to
evaluate both parents in a custody dispute.4° Pretrial, one party requested
copies of the psychologist's notes and raw data.41 The trial court noted that
disclosure of such data might be helpful to the parties.42 But it recognized that it
might also worsen the parties' relationship, endanger the children's welfare, and
extend litigation.43 Thus, the court held that it would permit disclosure only upon
the movant showing "special circumstances, such as a deficiency in the report, a
potential bias(,] or other cause."44
Ochs is not persuasive here. According to a case cited in Anthony's
statement of additional authorities, other New York courts have critically
questioned its reasoning and conclusion.45 Nor does Ochs's reasoning aid
39 See ER 103(a); RAP 2.4(b). 40 193 Misc.2d 502, 503, 749 N.Y.S.2d 650 (2002).
41 Id.
42 Id. at 504.
43 Id. at 507-08.
44 Id. at 510.
45 K.C. v. J.C., 50 Misc.3d 892, 25 N.Y.S.3d 798 (2015).
13 No. 75718-1-1/14
Johnson. That case held that disclosure of such data was in the trial court's
discretion, exercised to safeguard the child's best interests. Johnson fails to
argue that the trial court here abused its discretion somehow in this regard.
Rather, he only argues that the trial court abused its discretion in admitting
testimony which he contends was barred by statute and regulation.
ATTORNEY FEES ON APPEAL
Both parties seek fees on appeal, pursuant to RAP 18.1. Anthony is
entitled to an award of fees, subject to her compliance with RAP 18.1(d).
Johnson is not.
RCW 26.09.140 authorizes us to award fees "after considering the
financial resources of both parties" to one party that has maintained or defended
a proceeding under RCW 26.09.
Here, Johnson does not allege any financial need to justify an award of
fees. Thus, he is not entitled to an award on appeal.
In considering payment for the fees and costs of the GAL,the trial court
found that Anthony "has no ability to pay and [Johnson] has an ability to pay."
The trial court cited an earlier order that calculated Johnson's monthly income at
$11,475.50. It found that Anthony "cannot fund protracted litigation and provide
for her children." She had "stop[ped] working to care for her children because of
this crisis."
Anthony's financial declaration shows the same. Her monthly net income
is $4,427 and she lost several months of work supporting her children. Her
expenses exceed her income and total $7,479. She spends $3,058 of this on the
14 No. 75718-1-1/15
children's expenses, not including groceries. Her total assets amount to $2,000
and she often must rely on gifts and loans from family.
This financial declaration, supported by the trial court's findings, is
sufficient to demonstrate Anthony's comparative financial need. The monthly
expense of supporting herself and her children alone far exceed her monthly
income.
Based on RCW 26.09.140 and her financial need, Anthony is entitled to an
award of fees, subject to her compliance with RAP 18.1(d).
We affirm the orders on appeal. We award Anthony fees on appeal,
subject to her compliance with RAP 18.1(d).