In the Matter of the Custody of: K.P. And L.P.

• Court: Court of Appeals of Washington
• Decided: October 24, 2023
• Docket: 38680-5
• Status: Unpublished

Opinion

FILED OCTOBER 24, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

IN THE MATTER OF THE CUSTODY ) OF ) No. 38680-5-III ) K.P. AND L.P. ) UNPUBLISHED OPINION ) ) ) FEARING, C.J. — Linda Harris appeals decisions entered by the superior court

during a process by which the court terminated Harris’ custody of her grandchildren. The

superior court returned custody to the mother, Angela Lockridge. We affirm the superior

court.

FACTS

On June 24, 2013, Linda Harris obtained nonparental custody of her two

grandchildren, “Kyle” and “Lucy,” which are pseudonyms. Harris’ daughter, Angela

Lockridge, the mother of the children, agreed to the nonparental custody order because of

her drug addiction and crimes. Lockridge was scheduled to serve a jail sentence. The

children’s father, Robert Greenamyer, was incarcerated as a sex offender. The

nonparental custody order prohibited Lockridge or Greenamyer from contacting the

children, except that Lockridge could visit with the children depending on her

compliance with counselling and drug testing. No. 38680-5-III, In re Custody of K.P. & L.P.

More than four years later, and on February 9, 2018, the nonparental custody order

was modified based on agreement between Linda Harris and Angela Lockridge. The

agreed parenting plan lacked specifics. The plan ordered Lockridge to complete a

parenting assessment, drug and alcohol assessment, anger management course, and

random urinalysis tests. A narrative attachment to the plan stated:

(1) The parenting assessment is to provide a plan of reconciliation and reunification of (2) Angela and her children, [Kyle] and [Lucy]. This would begin with supervised visits, (3) and upon successful completion would move to unsupervised visits.

Clerk’s Papers (CP) at 829.

PROCEDURE

On June 14, 2021, Angela Lockridge filed a petition to terminate the nonparental

custody order.

Linda Harris, acting without counsel, filed numerous narrative declarations in

opposition to Lockridge’s petition. In these declarations, Harris asserted that Kyle and

Lucy should be appointed attorneys. In an August 5, 2021 hearing, Commissioner

Jacquelyn High-Edward ruled that the governing statute did not allow for appointment of

counsel for Kyle and Lucy pursuant to a motion to terminate a guardianship.

Nevertheless, on August 8, 2021, Kyle and Lucy filed motions, written in Harris’

2 No. 38680-5-III, In re Custody of K.P. & L.P.

handwriting, for the appointment of attorneys. Superior Court Commissioner Pro Tem

Gregory Hicks approved appointment of attorneys for both children.

In an August 13, 2021 order, Commissioner High-Edward vacated the attorney

appointments and sanctioned Linda Harris $500 for seeking attorneys in an ex parte

hearing before a commissioner not assigned to the case and in violation of her August 5

ruling. Commissioner High-Edward also ordered that Angela Lockridge should have

residential time with the children during weekends, that Lockridge and Harris should

engage in joint decision making for the children, and that Lockridge and the children

should engage in counseling. The court commissioner also appointed a guardian ad litem

(GAL) for the case.

In an August 18, 2021 motion, Linda Harris requested to vacate the August 13

order under CR 60 and to overturn the $500 sanction. On September 16, 2021,

Commissioner High-Edward filed an order addressing Harris’ motion. The

commissioner found that Harris had no legal or factual basis to bring the CR 60 motion

because CR 60 provides for relief only from final judgments, orders, or proceedings, and

Harris sought relief from an interlocutory order. The commissioner also found a lack of

factual basis to overturn the order, partly because evidence presented in a de facto

parentage action formerly advanced but later dismissed by Harris showed that Angela

Lockridge had been enjoying overnight visitation with her children before issuance of the

August 13 order. The commissioner refused to overturn the August 13 sanction.

3 No. 38680-5-III, In re Custody of K.P. & L.P.

Commissioner High-Edward wrote in the September 16 order:

that Ms. Harris continues to file declarations well over the page limits established by local rule (LSPR 94.04(h)(6)) as well as continues to include extensive child hearsay despite recognizing that it is not admissible. She also continues to act in bad faith by secretly having the children present during the last hearing, refusing to give Ms. Lockridge the zoom information so [Lucy] could participate in her acting classes, refuses to acknowledge Ms. Lockridge as the children’s mother, refusing to sign the GAL [guardian ad litem] order, filing a petition to change the children’s last names to the father’s last name in violation of joint decision making, and exposing the children to their father who is a convicted sex offender and who has no contact under the non-parental custody action.

CP at 480. While citing CR 11 and Harris’ bad faith, the commissioner sanctioned Harris

$750.

Linda Harris hired counsel. Harris, through counsel, moved a Superior Court

judge to revise Commissioner High-Edward’s September 16 order. She argued that the

motion to vacate should have been reinterpreted as a motion to revise, asked to overturn

sanctions and fee awards, and requested a finding that Angela Lockridge’s petition to

terminate nonparental custody was void. In separate orders, Superior Court Judge John

Cooney denied the motion to revise and motion to dismiss. Judge Cooney deemed that

the uniform guardianship, conservatorship, and other protective arrangements act (UGA)

did not incorporate the adequate cause standard required before proceeding to trial on a

modification petition.

On January 24, 2022, Linda Harris moved to revisit the appointment of the

guardian ad litem. In the motion, Harris argued that the guardian ad litem had since

4 No. 38680-5-III, In re Custody of K.P. & L.P.

become involved in another case in which Harris’ counsel represented an opposing party.

Harris claimed the guardian ad litem possessed a conflict of interest in Harris’ case. The

motion also again requested attorneys for the children. In an April 12, 2022 order,

Commissioner High-Edward found that Harris filed the motion in bad faith and with the

intent to intimidate the GAL and delay the guardian’s investigation. The commissioner

further explained:

The court finds Ms. Harris’ and Mr. Mason’s motion to revisit the GAL based on the fact that Ms. Paxton [the GAL] appeared on a case in which [counsel] Mr. Mason also appeared to be frivolous, intransigent and intended to delay and intimidate the GAL investigation. Ms. Harris filed this motion on January 21, 2022 and did not have it heard until March 30, 2022. During that time, no action on the investigation occurred. Further, Mr. Mason provided no authority that Ms. Paxton appearing on a completely unrelated case . . . caused any type of conflict or appearance of unfairness where there was no relationship between the parties. It befuddles the court’s mind, and Mr. Mason provided no legal authority, on how such a situation would create a conflict or create an appearance of fairness issue for the GAL or Ms. Harris. The court finds that Ms. Harris’ motion was intended to, and did, delay Ms. Paxton’s investigation in the case.

CP at 953-54 (footnote omitted).

In the April 12, 2022 order, Commissioner High-Edward also faulted Linda Harris

for rearguing the issue of attorneys for the children when the commissioner had

previously ruled on that question. The commissioner found that Harris had most likely

submitted, caused, or encouraged declarations by Kyle and Lucy in support of the

motion, in violation of a local court rule. Commissioner High-Edward found that the last

5 No. 38680-5-III, In re Custody of K.P. & L.P.

sanction for $750 was insufficient to stop Harris’ bad faith and intransigence. Thus, the

commissioner sanctioned Harris $5,000 for her intransigence, bringing frivolous motions,

and acting in bad faith.

Meanwhile, Angela Lockridge brought two motions for contempt against Linda

Harris, the first filed on April 4, 2022 and the second on April 11, 2022. The motions

asserted that Harris disobeyed the August 13, 2021 residential scheduling order.

According to Lockridge, Harris prevented her from visiting Lucy or Kyle on the

weekend. The motions asserted that Harris first precluded visitation with the children on

the weekend of February 18, 2022. In response, Harris asserted that Lockridge possessed

“unclean hands” because Lockridge posted a message on social media about Harris that

violated a provision of the August 13 order. Commissioner High-Edward held that Harris

had violated the August 13 order by denying Lockridge parenting time and ordered

Harris to pay Lockridge a $500 money judgment.

In a petition for instructions, the children’s GAL recommended the trial court

appoint attorneys for Kyle and Lucy. Linda Harris filed a motion repeating the request

for the children to be given attorneys. Court Commissioner Jeremy Schmidt denied

appointment of counsel. Commissioner Schmidt concluded that appointment of counsel

for the children was not in their best interests because it would unnecessarily draw them

into the litigation between mother and grandmother.

6 No. 38680-5-III, In re Custody of K.P. & L.P.

The parties participated in a two-day bench trial before now-Judge Jacquelyn

High-Edward. Following trial, the court terminated the minor guardianship. The court

also entered a restraining order prohibiting Linda Harris from contacting the children

outside of limited supervised contact.

LAW AND ANALYSIS

Linda Harris forwards thirty assignments of error, but fails to dedicate any legal

argument to support most of these assignments of error. This court does not consider

assignments of error unsupported by argument or authority. In re Marriage of Angelo,

142 Wn. App. 622, 628 n.3, 175 P.3d 1096 (2008). We respond to those arguments

advanced in the body of Harris’ brief.

Adequate Cause Hearing

Washington law previously permitted a nonparent to gain and retain custody over

a child, whose parents could not properly care for the child, under a nonparental custody

act. Because of concerns over the constitutionality of the nonparental act arrangement,

particularly the act’s standards to terminate nonparental custody, the Washington

Legislature, in 2019, repealed the act and adopted the uniform guardianship,

conservatorship, and other protective arrangements act. In this appeal, we must address

the bridge between the two acts.

Linda Harris argues that the trial court followed an improper procedure when

evaluating Angela Lockridge’s petition to terminate the minor guardianship. Harris

7 No. 38680-5-III, In re Custody of K.P. & L.P.

asserts that, because the guardianship arose under a prior statutory scheme, the court

should have adhered to that now-repealed scheme. Specifically, Harris claims the trial

court should have required Lockridge to file a petition for “adequate cause” required

under the nonparental custody act.

When Linda Harris obtained custody of Kyle and Lucy in 2013, former chapter

26.10 RCW, “Nonparental Actions for Child Custody,” governed the relationship

between Harris and the children. By the time Angela Lockridge filed her petition to

terminate the custodial relationship, chapter 11.130 RCW, the “Uniform Guardianship,

Conservatorship, and Other Protective Arrangements Act,” (UGA) controlled the

relationship. See also LAWS OF 2019, ch. 437; LAWS OF 2020, ch. 312. Correspondingly,

the legal term “nonparental custody” has been replaced with the term “guardianship.”

The former act imposed an “adequate cause” requirement on any party seeking to

modify a nonparental custody order. Two provisions created this adequate cause

requirement. The first provision lay within the former act itself. Former RCW 26.10.200

(1987), repealed by LAWS OF 2019, ch. 437, § 801. The second provision directed courts

to apply chapter 26.09 RCW when reviewing a petition to modify a child’s residence,

which chapter governs dissolution of marriage proceedings. Former RCW 26.10.190

(2000), repealed by LAWS OF 2019, ch. 437, § 801. The pertinent code sections under

both chapters carried nearly identical language. Compare RCW 26.09.270 with former

RCW 26.10.200 (1987). Under both code sections, a party seeking to modify a

8 No. 38680-5-III, In re Custody of K.P. & L.P.

nonparental custody decree needed to submit “an affidavit setting forth facts supporting

the requested order or modification.” The trial court needed to deny a motion to modify

unless it found “adequate cause for hearing the motion . . . established by the affidavits.”

RCW 26.09.270; former RCW 26.10.200 (1987).

The UGA never mentions “adequate cause.” The only relevant language in the

UGA states that: “If a petition is filed under RCW 11.130.190 [as an initial petition for

appointment of guardian for a minor], the court shall schedule a hearing.”

RCW 11.130.195(1) (emphasis added). This language facially eschews any threshold

finding of adequate cause. The separate code section governing modifications and

terminations of guardianship orders says nothing about a court scheduling a hearing for

motions brought under that section. RCW 11.130.240. Nevertheless, RCW 26.09.270, a

section of the marital dissolution chapter, requiring a finding of adequate cause when a

party seeks to modify a custody decree or parenting plan, remains in effect. Thus, one

might reasonably conclude that the “adequate cause” procedure remains in force

whenever a guardianship order is accompanied by a custody decree or parenting plan and

a petitioner seeks to modify the custody decree or parenting plan.

Linda Harris’ assignment of error that complains about the trial court’s failure to

find adequate cause before allowing a full trial raises both a procedural and substantive

question. Procedurally, does the UGA still require a petitioner to support a request for

modification with an affidavit setting forth supporting facts? Substantively, must a

9 No. 38680-5-III, In re Custody of K.P. & L.P.

petitioner forward different facts under the UGA than he or she would have forwarded

under the former act? We chose, however, to ignore the questions.

Even if we imposed a requirement on the trial court to find “adequate cause”

before proceeding to a trial on a petition for modification or termination of a

guardianship, Harris would not be entitled to relief. The trial court necessarily found

adequate cause to terminate the guardianship when it terminated the guardianship after

conducting a trial. Angela Lockridge could have appealed a denial of her petition based

on lack of adequate cause, but Harris held no corresponding right to appeal an affirmative

finding of adequate cause. A threshold finding of adequate cause would not constitute a

final, appealable decision resolving the merits of the case under RAP 2.2(a)(1). Neither

would a finding of adequate cause be prejudicial to the final termination decision under

RAP 2.4(b) because the court held a full hearing on the question of termination and based

the ruling on the outcome of that hearing. This case proceeded to a full trial, and the

court made decisions following that trial.

Adequate Cause Substance

Linda Harris also posits a distinction between the UGA’s and the repealed

nonparental custody act’s test for effecting a modification or termination of nonparental

custody. We disagree because the UGA formally adopted nonstatutory requirements

imposed onto the former act by this court, such that the test under either statute would be

essentially the same.

10 No. 38680-5-III, In re Custody of K.P. & L.P.

In some of the final appellate decisions analyzing the former nonparental custody

act, this court ruled that the constitutional right to parent necessitated changes to the

statutory test for modification of a nonparental custody order. Under the repealed act, a

parent seeking to modify a nonparental custody order needed to show “a substantial

change . . . 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 interest

of the child.” RCW 26.09.260(1) (emphasis added). Addressing this deficiency in the

twilight of the former act’s life, this court held:

Since RCW 26.10.190 clearly contemplates that a parent may seek to modify a nonparental custody order, due process requires that he or she be given a meaningful opportunity to do so. The factual basis for a nonparental custody order is a finding that the parent is unfit or a detriment to the child. A parent has no meaningful opportunity to regain custody of his or her child if that parent is precluded from showing there is no longer a factual basis for the order. We conclude that RCW 26.10.190, which applies the requirement of RCW 26.09.260(1) to modification of nonparental custody proceedings, violates due process insofar as it limits the change in circumstances to that of the child or the nonmoving party. Consistent with this conclusion, we also hold unconstitutional the requirement of RCW 26.10.190 that the modification be in the best interests of the child. The law presumes that a fit parent will act in the best interest of his or her child. Troxel [v. Granville], 530 U.S. [57,] 68-69, 120 S. Ct. 2054, 47 L. Ed. 2d 49 (2000)]. Thus, just as [In re Custody of Shields, 157 Wn.2d 126 (2006)] held that it is unconstitutional for a court to infringe on the parent-child relationship by making an initial custody determination based on a best interests analysis, it is similarly unconstitutional for a court to deny a modification on that basis.

11 No. 38680-5-III, In re Custody of K.P. & L.P.

In re Custody of S.M., 9 Wn. App. 2d 325, 337-38, 444 P.3d 637 (2019) (alterations

added). Our decision in Flaggard v. Hocking, 13 Wn. App. 2d 252, 259-60, 463 P.3d

775 (2020) followed the ruling in Custody of S.M.

In adopting the UGA, Washington’s legislature addressed the constitutional

deficiency recognized in S.M. and Flaggard. Under the UGA:

Guardianship under this chapter for a minor terminates: .... (b) When the court finds that the basis in RCW 11.130.185 for appointment of a guardian no longer exists, unless the court finds that: (i) Termination of the guardianship would be harmful to the minor; and (ii) The minor’s interest in the continuation of the guardianship outweighs the interest of any parent of the minor in restoration of the parent’s right to make decisions for the minor.

RCW 11.130.240(1)(b). A court may appoint a guardian for a minor on the basis that

“[t]here is clear and convincing evidence that no parent of the minor is willing or able to

exercise parenting functions.” RCW 11.130.185(c). Thus, a parent seeking to terminate

a guardianship order prevails under the UGA if the parent demonstrates an ability to

exercise parenting functions. These requirements facially satisfy the constitutional test

announced in Custody of S.M. and Flaggard. We detect no meaningful distinction

between the test announced in Custody of S.M. from the test implanted in the UGA.

Furthermore, Linda Harris’ brief does not illuminate why the result of the trial would be

different had the trial court applied the test under Custody of S.M.

12 No. 38680-5-III, In re Custody of K.P. & L.P.

The UGA recognizes the continuing validity of custody orders issued under the

nonparental custody act, chapter 26.10 RCW, but requires orders issued under the former

act to undergo modification “subject to the requirements” of the UGA:

All orders issued under chapter 26.10 RCW [the former act] prior to the effective date of chapter 437, Laws of 2019 [the UGA] remain operative after the effective date of chapter 437, Laws of 2019. After the effective date of chapter 437, Laws of 2019, if an order issued under chapter 26.10 RCW is modified, the modification is subject to the requirements of this chapter.

RCW 11.130.245(2). Linda Harris argues that this statutory language should be

interpreted to require application of the repealed nonparental custody act whenever a

petitioner moves to modify or terminate a guardianship that initially arose under the

former act. We disagree.

Linda Harris’ reading of RCW 11.130.245 contradicts the plain reading of the

statute, requiring “modification . . . subject to the requirements of this chapter.”

RCW 11.130.245(2) (emphasis added). Such language demands that courts apply the

UGA when entertaining a motion to modify or terminate a guardianship that arose under

the former act.

Linda Harris argues such a plain reading renders RCW 11.130.245(2) superfluous

because the UGA already provides a modification process in the neighboring code

section, RCW 11.130.240. Again, we disagree. Section 245(2) is not superfluous

because the legislature could have reasonably seen the need to clarify the test a court

13 No. 38680-5-III, In re Custody of K.P. & L.P.

should apply when reviewing a guardianship that arose under the former act. Section 245

advances a distinct purpose from section 240’s governance of modifications, even if

section 245 directs courts to apply section 240.

Linda Harris also advances a strained reading of RCW 11.130.245(2)’s use of the

term “subject to.” Section 245 requires modification of guardianships that arose under

the former act “subject to the requirements” of the UGA. (Emphasis added.). Harris

argues that we should read “subject to” as requiring application of all UGA provisions

other than the UGA’s modification provisions. We disagree. Because the UGA says that

modifications of preexisting guardianships are “subject to the requirements” of the UGA,

the UGA governs all modification proceedings.

Linda Harris also asserts the “vested right” doctrine in the application of the

nonparental custody act’s “adequate cause” requirement. The general statement of the

doctrine declares:

A vested right, entitled to protection from legislation, must be something more than a mere expectation based upon an anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of property, a demand, or a legal exemption from a demand by another.

Godfrey v. State, 84 Wn.2d 959, 963, 530 P.2d 630 (1975) (emphasis omitted).

We decline application of the vested rights doctrine on two grounds. First,

expectation in the continuance of existing law does not equate to a vested property right.

In re Marriage of MacDonald, 104 Wn.2d 745, 750, 709 P.2d 1196 (1985). Second, the

14 No. 38680-5-III, In re Custody of K.P. & L.P.

guardianship order conferred no property right to Harris, because children are not

property. Sheldon v. Sheldon, 47 Wn.2d 699, 703, 289 P.2d 335 (1955).

Appointment of Attorney for Children

In her brief, Linda Harris repeatedly mentions court commissioner rulings denying

appointment of an attorney for the two children. Thus, Harris may be arguing that the

trial court erred in not appointing attorneys for Kyle and Lucy.

Linda Harris never assigns error to the several rulings denying the appointment.

She also presents little, if any, argument in her brief on this subject. Therefore, we do not

address the merits of the alleged mistake. Under RAP 10.3(a)(4), the appellant must

place in her brief a “separate precise statement” of each error the appellant contends the

trial court committed. Only issues raised in the assignments of error and argued to the

appellate court are considered on appeal. Weyerhaeuser Co. v. Commercial Union

Insurance Co., 142 Wn.2d 654, 693, 15 P.3d 115 (2000).

Contempt Sanctions

Linda Harris argues that the trial court erred in imposing sanctions and in finding

her in contempt. Nevertheless, Harris fails to identify a standard by which we should

evaluate the challenged findings of contempt.

Linda Harris first faults the trial court for imposing sanctions in the September 16,

2021 order. Harris argues that the trial court should have converted her CR 60 motion

into a motion to revise.

15 No. 38680-5-III, In re Custody of K.P. & L.P.

CR 11 sanctions are appropriate when a litigant files a claim for an improper

purpose or if the claim is not grounded in fact or law and the signing litigant failed to

conduct a reasonable inquiry. Kilduff v. San Juan County, 194 Wn.2d 859, 877, 453 P.3d

719 (2019). Harris’ CR 60 motion was inappropriate procedurally because Harris sought

to vacate a temporary order, and CR 60 provides relief only from final orders. CR 60(b).

Linda Harris fails to accompany, with a citation to authority, her contention that

the superior court commissioner could have simply converted the CR 60 motion to a

motion to revisit. If she wanted a revision under RCW 2.24.050, Harris should have

sought relief before a superior court judge and not the commissioner who issued the

original ruling. Finally, the commissioner listed voluminous reasons for finding that

Harris acted in bad faith outside of her CR 60 argument.

Linda Harris also seeks to overturn the commissioner’s September 16, 2021

sanction because the court commissioner purportedly improperly applied the doctrine of

issue preclusion by referencing Harris’ dismissed petition for de facto parentage. The

commissioner did reference Harris’ dismissed de facto parentage action, which action is

not available in the record of this case, when holding that Harris lacked a factual basis to

argue against Angela Lockridge’s weekend parenting time. Harris’ argument more

closely implicates a trial court’s authority to judicially notice facts under ER 201 rather

than issue preclusion. But the record does not show that the trial court’s sanction award

was based, even partially, on judicial notice.

16 No. 38680-5-III, In re Custody of K.P. & L.P.

Linda Harris argues that the trial court improperly imposed sanctions when Harris

sought the appointment of attorneys for the children. The commissioner’s April 12, 2022

sanction found that Harris’ request for attorneys was frivolous when the UGA did not

provide for appointment of attorneys in termination proceedings. Harris advanced the

attorney argument when the commissioner had previously ruled on the question. Having

knowledge of the commissioner’s position, Harris’ reargument of the attorney

appointment issue was frivolous. More importantly, the April 12 sanctions were also

based on numerous other findings that Harris does not contest.

Linda Harris argues that the trial court improperly found her in contempt when she

complied with the weekend residential schedule until February 18, 2022. Nevertheless,

the order mandating Angela Lockridge enjoy weekend residential time with Kyle and

Lucy did not specify an end date prior to February 18, 2022. The order remained in

effect until superseded by another order or final decision. Harris’ initial compliance with

the order does not obviate a contempt finding based on later disobedience.

Finally, Linda Harris argues that Angela Lockridge brought “unclean hands” when

she sought a contempt order against Harris. Harris fails to cite any law supporting an

“unclean hands” argument. This court does not consider arguments unsupported by

citation to legal authority. Stewart v. State, 92 Wn.2d 285, 300, 597 P.2d 101 (1979).

CONCLUSION

We affirm all superior court rulings.

17 No. 38680-5-III, In re Custody of K.P. & L.P.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Fearing, C.J. WE CONCUR:

Lawrence-Berrey, J.

_ Birk, J. 1

1 The Honorable Ian S. Birk is a Court of Appeals, Division One, judge sitting in Division Three pursuant to CAR 21(a).