FILED
SEPTEMBER 1, 2026
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 Parenting and Support ) No. 39885-4-III of: )
)
S.L.B. ) UNPUBLISHED OPINION
MURPHY, J. — Joshua Burnette appeals from the trial court’s entry of the final parenting plan following a bench trial relative to the child he shares with Ryleigh Brown. Burnette assigns error based on his arguments that the trial court: (1) abused its discretion by limiting his ability to present his case, (2) improperly relied on false statements, (3) failed to consider critical evidence, (4) abused its discretion by ordering unwarranted assessments, and (5) failed to address an alleged conflict of interest involving Brown’s counsel. We disagree and affirm.
FACTS
Burnette and Brown are parents to S.L.B. (S.B.). They separated, and Brown filed a petition for entry of a parenting plan in October 2021. Brown hired the law firm of Robert R. Cossey & Associates, P.S. to represent her. Burnette responded to the petition, asking the court to deny the proposed parenting plan and submitting his proposed plan.
In re Parenting & Support of S.L.B.
In March 2022, the court entered a temporary parenting plan that placed limitations on Burnette due to findings of a history of child abuse and domestic violence, as well as a long-term problem with substance abuse. At the time, Burnette was represented by Douglas Hughes. The temporary parenting plan limited Burnette’s supervised residential time with S.B. to two days a week. Burnette was ordered to undergo a domestic violence perpetrator evaluation and substance abuse evaluation. Burnette was ordered to provide advance notice to Brown’s counsel so collateral information could be given to the evaluators. The temporary parenting plan provided that if Burnette did not complete the evaluations or treatment recommendations, then visitation would be “suspended until further order of the court or agreement of the parties.” Clerk’s Papers at 147.
During the pendency of the case, Hughes withdrew as Burnette’s counsel with Jason Nelson appearing. Nelson subsequently withdrew, with Briana Gieri appearing as counsel. A discovered conflict thereafter resulted in Gieri withdrawing as counsel, and Burnette proceeded pro se for the duration of the case.
The matter proceeded to trial on June 12, 2023. From the outset, the court stated, “We have one day scheduled for us, which means we have about five-and-a-half hours total testimony time. So what I do is, I divide that equally between the two of you. So you
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In re Parenting & Support of S.L.B. each have about two hours and 25—two hours and 15 minutes.” Verbatim Rep. of Proc. (VRP) at 7.
Burnette, Brown, and Burnette’s mother testified at trial. Burnette introduced, or attempted to introduce, (1) physical evidence including photographs of alleged bruising and cuts that purportedly occurred during Brown’s time with S.B., (2) documentation of Brown’s former boyfriend’s criminal history, including domestic violence convictions and probation violations, (3) physical evidence of Brown’s alleged perjury in a different case related to Burnette’s parenting of a child from a prior relationship, and (4) drug test results to rebut allegations of substance abuse.
The presentation of evidence concluded, and the parties were directed to return on June 23, 2023, for the ruling. The trial court started its ruling by detailing credibility determinations. The trial court articulated Burnette’s credibility was questionable based on contradictory testimony and evidence. The trial court determined Burnette’s mother was also not credible based on “vague, contradictory, and conveniently confused” testimony. VRP at 280. Additionally, the trial court found Brown to be “willing to lie under oath,” which did raise questions on her credibility. VRP at 282.
The trial court modified the parenting plan by restricting Burnette’s residential time and imposing requirements for completing various assessments. Based on the presented evidence and credibility determinations, the trial court found a history of child
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In re Parenting & Support of S.L.B. abuse, domestic violence, and chemical dependency that affected Burnette’s ability to parent S.B. The trial court also found Burnette sold illegal drugs, engaged in abusive use of conflict, and parented S.B. unsupervised, contrary to an earlier order of the court. The parenting limitations modified Burnette’s time with S.B. to every other Saturday and Sunday for four hours. Burnette was directed to obtain chemical dependency and domestic violence evaluations, with the stipulation that the evaluations would be rendered invalid without giving Brown the opportunity to provide collateral information to the evaluators. These evaluations were to be obtained within 60 days or Burnette’s visitation would be amended to occur only at a facility under supervision.
Burnette now appeals.
ANALYSIS
We review parenting plan decisions for an abuse of discretion. In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). “A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). “A court’s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct
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In re Parenting & Support of S.L.B. standard.” Id. at 47. We review a trial court’s findings of fact for substantial evidence, “which is sufficient to persuade a fair-minded person of the truth of the matter asserted.” In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). “The trial court’s credibility findings are not subject to review.” In re Marriage of DewBerry, 115 Wn. App. 351, 362, 62 P.3d 525 (2003). 1. Due process rights and procedural fairness Burnette argues the trial court violated his due process rights by limiting the trial to one day, restricting cross-examination, and preventing full presentation of his case. Burnette fails to establish how his due process rights were violated and fails to cite to any legal authority in support of his request for reversal. We hold the trial court did not violate Burnette’s due process rights.
The trial in this matter was set for one day. From the outset, the trial court informed the parties they had one day to present their evidence. The judge supervised Brown’s and Burnette’s time to ensure it was equal. The trial court managed the proceedings by reminding the parties prior to the lunch break that they had “to be done by 4:30” and they therefore needed to “plan accordingly.” VRP at 120. The judge again addressed the parties at the afternoon break and stated they had “about an hour and 15 minutes left” with “most of that time . . . belong[ing] to Mr. Burnette.” VRP at 190. After the afternoon break, the court noted that they could “go a little bit past 4:30 so that [they]
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In re Parenting & Support of S.L.B. can get Mr. Burnette his time and do a quick, quick closing.” VRP at 191. When he exceeded his allotted time, the court informed Burnette he was over his time, but permitted an additional question. When Burnette then asked to extend his time, the court stated, “[W]e were scheduled to stop. I want to make sure you had equal time. You’re now over equal time, and we need to close. And we have to be done by five.” VRP at 264.
Burnette was afforded the opportunity to present evidence and cross-examine witnesses. The record shows that Burnette presented his version of events, introduced exhibits, and cross-examined witnesses. The limitation on the presentation of evidence was applied evenhandedly and did not deprive Burnette of a meaningful hearing. Burnette has not shown, by raising an issue without supporting authority, that a due process violation occurred when the trial judge gave both parties equal time and followed the schedule determined at the beginning of trial.
Burnette also contends his due process rights were violated when he sought to admit photographs that allegedly showed bruising and cuts on S.B. Brown’s counsel objected based on a lack of foundation. The trial court overruled the objection, admitted the photographs, and ruled the argued basis for the objection went to weight, not admissibility. Burnette has not shown that the trial court did not consider the photographs. His due process rights were not violated.
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In re Parenting & Support of S.L.B.
Burnette also claims a due process violation occurred as a result of the trial court determining documents about Brown’s former boyfriend’s criminal history were inadmissible. Burnette cross-examined Brown about her former relationship, but the trial court did not admit the presented documents and deemed the documents inadmissible because the former boyfriend was not a party to this case and Brown did not have personal knowledge to lay a foundation to authenticate the documents. Authentication or identification is a condition precedent to admissibility. ER 901(a). The trial court did not err when it found the identified evidence inadmissible.
Burnette received a meaningful hearing that complied with due process requirements. 2. Reliance on unsupported or mischaracterized evidence Burnette contends the trial court erred by relying on false and unsupported statements, such as his mother’s testimony that he was a drug dealer. The trial court’s findings regarding Burnette’s drug involvement were based on witness testimony, which included Burnette’s mother’s statements about her concerns over drug sales; she agreed the statements were speculative but offered them as context. Burnette disputes the characterization of “drug dealer,” but this is not a verbatim statement made by the trial court, which instead inferred substance use and sales from the record. Opening Br. of Appellant at 11. Text messages and other evidence provided substantial support for the
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In re Parenting & Support of S.L.B. findings on substance use made by the trial court. The trial court’s credibility assessments, to which we defer, resolved conflicts in evidence in favor of Brown.
The trial court’s findings that substance abuse affected Burnette’s parenting are supported by substantial evidence even without his mother’s testimony. Brown testified at length to her knowledge of Burnette’s use and sale of drugs. For example, a text message from Burnette to Brown was read into the record stating, “‘[Brown], you’re so funny by saying that. Do you know how much drugs I have done and sold?’” VRP at 38. Brown also testified that Burnette sold drugs at least four days a week.
Burnette’s claim of error fails because there was sufficient evidence presented at trial that Burnette previously sold drugs regardless of the testimony of Burnette’s mother. 3. Failure to consider exculpatory evidence Burnette argues the trial court ignored key evidence: photographs of S.B.’s bruises, Brown’s alleged perjury in a separate litigation, and Brown’s former boyfriend’s criminal history. This assignment of error is similar to Burnette’s first assignment of error. Here, however, he argues the trial court improperly weighed the evidence in favor of Brown, which he claims is not in the best interest of the child.
Parenting decisions must prioritize the child’s best interests under RCW 26.09.002. The photographs were admitted but discounted due to a lack of date stamps and corroboration. The prior sworn testimony of Brown was considered by the
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In re Parenting & Support of S.L.B. trial court but deemed irrelevant or not rising to perjury. The former boyfriend’s criminal history was noted as introduced by Brown but determined to not be dispositive.
Burnette asks this court to reweigh credibility findings and evidence in his favor.
The trial court’s credibility findings are not, however, subject to review. DewBerry, 115 Wn. App. at 362. The fact that the trial court did not find Burnette credible does not mean he is entitled to a new trial. We give great deference to the trial court, and there is no indication that the trial court abused its discretion in weighing the evidence or making credibility determinations. The selective weighing of evidence was within the trial court’s discretion and was supported by substantial evidence. 4. Imposition of assessments Burnette challenges the requirement that he obtain chemical dependency and domestic violence evaluations as being unwarranted. This claim fails because the trial court’s findings and the imposition of the evaluations were supported by substantial evidence.
Burnette has a child with a former partner prior to his relationship with Brown. In that litigation, the parenting plan included limitations on Burnette’s contact with that child, under findings of child abuse, history of domestic violence, and substance abuse. As part of those proceedings, Burnette was ordered to obtain a domestic violence assessment. At trial, he admitted he had not completed the assessment even though years
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In re Parenting & Support of S.L.B. had elapsed since it was ordered. Similarly, although ordered to obtain a domestic violence assessment in this matter, he had not obtained that assessment as of the date of trial.
During his testimony about his relationship with S.B. and the ordered domestic violence assessment, Burnette testified that he has “now come to terms that it’s obviously something [he] need[s] to do.” VRP at 94. Burnette offered the court various conflicting reasons as to why he had not completed the assessment.
In its oral ruling, the trial court noted that a domestic violence evaluation can be imposed for prior domestic violence and child abuse, even if there is no evidence he abused S.B.
The trial court also noted several exhibits that showed Brown potentially suffered domestic abuse, such as a text message that indicated Brown’s arm had been injured by Burnette. Brown stated in the text message, “I should have slapped you for putting your hands on me like that, but I was too afraid you’d kill me or some shit. Please leave me alone. You ruined me. Now let me heal.” VRP at 283. The trial court also gave credence to Brown’s testimony that Burnette called her names, shoved her, and screamed at her, which was consistent with the text messages presented at trial.
The trial court’s order for a domestic violence assessment was supported by substantial evidence. The court did not abuse its discretion in ordering this assessment.
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In re Parenting & Support of S.L.B.
Burnette also challenges the imposition of the chemical dependency assessment.
Burnette claims that he provided evidence of “clean drug tests” and “a hair follicle test.” Opening Br. of Appellant at 13. He asserts that the order for him to obtain a chemical dependency assessment is unwarranted because there was insufficient evidence presented at trial of Burnette’s drug use. Although Burnette provided evidence of a negative hair follicle drug test from 2020, and evidence from negative urinalysis tests taken in April and May 2022, there was also evidence of urinalysis tests taken in 2021 with a positive result for cannabis and in 2022, with a positive result for amphetamine. Burnette claimed he had a prescription for Adderall to account for the positive amphetamine result; however, the evidence suggested his prescription was expired at the time he tested positive for amphetamine.
At trial, Burnette admitted to telling Brown he had ingested “psychedelics and pounds of blow and a pound of Molly” but claimed this was “just sarcasm.” VRP at 38. When asked if he would be willing to take a drug test on the day of trial, Burnette refused. In addition, Brown presented evidence that a baggie of cocaine was left in Burnette’s vehicle’s cupholder next to his children. Furthermore, Brown testified she used drugs with Burnette on multiple occasions, stating they used “[c]oke, molly, ecstasy, triple stocks. I don’t know if that’s the same thing, I think it’s ecstasy. Crack, because we smoked coke.” VRP at 149. Evidence was also presented that Burnette used drugs in the
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In re Parenting & Support of S.L.B. house while the children were home. By Burnette’s own admission, he used cocaine within a year of the trial.
Regardless of any negative drug test results admitted at trial, sufficient evidence was presented that Burnette has a long history of substance abuse. The evidence supported the trial court’s ruling that Burnette obtain a chemical dependency assessment. 5. Conflict of interest Burnette claims Brown’s counsel had a conflict under RPC 1.9 due to a prior consultation he had with the firm. We disagree.
Under RPC 1.9(a), a lawyer who previously represented a client in a matter shall not later represent another person in the same or a substantially related matter if the new client’s interests are materially adverse to those of the former client. A consultation may create an attorney-client relationship if the client subjectively believes such a relationship existed. Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997). Burnette has the burden of establishing he had an attorney-client relationship with Robert Cossey & Associates, P.S., the firm that represented Brown. Id. at 844.
At trial, Burnette raised the issue of a conflict of interest, claiming he had a consultation with Robert Cossey. Brown’s attorney responded, arguing their firm conducted a conflict check, and no consultation with Burnette regarding this matter was flagged.
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In re Parenting & Support of S.L.B.
Burnette presented no evidence at the trial court level to support his claim that he had a consultation with Robert Cossey. Burnette alleged he had documentation to support his claim, but with nothing presented, there was nothing for the trial court to consider. Likewise, on appeal, Burnette fails to provide evidence of a conflict. Instead, without authority, Burnette says that he previously had a consultation with Robert Cossey and the trial court failed to address this. He fails to provide proof of the consultation or any consultation that rose to a conflict of interest. Absent a showing of an actual conflict or harm, Burnette failed to meet his burden of establishing an attorney-client relationship existed between himself and the Robert Cossey & Associates, P.S. firm.
ATTORNEY FEES
Brown requests fees under RAP 18.1 asserting that Burnette is intransigent as he (1) did not cite any legal authority, (2) blatantly misrepresented the findings of the trial court, (3) inappropriately presented arguments based on credibility, (4) falsely claimed that the trial court ignored evidence that the trial court explicitly made findings on in its oral ruling, and (5) pursued this appeal for the purpose of causing Brown to incur more attorney’s fees.
In response, Burnette argues his appeal raises substantive constitutional and evidentiary issues supported by both law and fact. He claims fees are not warranted when the appeal is made in good faith.
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In re Parenting & Support of S.L.B.
An appeal is frivolous if no debatable issues are presented and the appeal has no chance of success. Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009). Burnette’s claims, although unsuccessful, raised substantive issues. Moreover, Brown did not file a financial affidavit as required by RCW 26.09.140 and RAP 18.1(c). We therefore deny the request for fees.
Affirmed.
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.
Murphy, J.
WE CONCUR:
Lawrence-Berrey, J. Hill, J.