IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting Plan of No. 84216-1-I
NICHOLAS J. DARNELL, DIVISION ONE
Appellant, and UNPUBLISHED OPINION
HOLLY STOCKTON,
Respondent.
SMITH, C.J. — Nicholas Darnell and Holly Stockton are parents to seven-
year-old L.G.D. The parties’ parenting plan provided that Darnell would be the
parent with whom L.G.D. resided with the majority of the time until she reached
school age, at which point Stockton would become that parent. Despite the
parenting plan, L.G.D. continued to live primarily with Darnell even after she
reached school age. In August 2020, soon after L.G.D. started kindergarten,
Darnell moved to modify the parenting plan so that L.G.D. would continue to
reside with him the majority of the time. Darnell claimed that Stockton was
unable to provide a safe environment for L.G.D. and that Stockton was incapable
of caring for L.G.D. In September 2020, the court entered a temporary parenting
plan that kept L.G.D. residing with Darnell for the majority of the time.
In the court’s final order on the petition to modify, the court found that
Stockton had overly involved L.G.D. in the litigation, that she had not stayed
current with L.G.D.’s education or health care or consistently exercised her No. 84216-1-I/2
residential time, and that she continues to fixate on Darnell. The court also found
that there had been a substantial change in circumstances, that the original
parenting plan was harmful to L.G.D., that the harm in modifying the original plan
was outweighed by the advantages of a new plan, and that a new plan would be
in L.G.D.’s best interest. Despite these findings, the court reinstituted much of
the original residential plan, keeping Stockton as the parent with whom L.G.D.
would reside with the majority of the time. The court also made changes to the
parties’ summer and holiday schedules, decision-making authority, and conflict
resolution procedures.
On appeal, Darnell contends that the court abused its discretion because
the new parenting plan is contrary to L.G.D.’s best interests and to RCW
26.09.260. We agree that the new parenting plan is not supported by the court’s
findings and is inconsistent with RCW 26.09.260 and reverse.
FACTS
Nicholas Darnell and Holly Stockton began dating in early 2012 and
separated in early 2015. L.G.D. was born in September 2014.
The parties had a tumultuous relationship involving substance abuse,
mental health issues, and mutual allegations of domestic violence and
harassment. Between 2015 and 2016, both parties sought anti-harassment
orders and domestic violence protection orders against the other. In February
and April 2016, Stockton was charged with two violations of the anti-harassment
order. The court ordered two separate competency evaluations in relation to the
harassment order violation charges.
2 No. 84216-1-I/3
In August 2016, the parties entered into an agreed parenting plan. The
parenting plan provided that the parties would have joint decision-making over
L.G.D.’s school and health care and that any disputes would be resolved by an
agreed upon counselor. The residential schedule provided that Darnell would be
the parent with whom L.G.D. resided with the majority of the time until she
reached school age, at which point Stockton would become that parent. While
L.G.D. was residing with Darnell the majority of the time, she would reside with
Stockton every other week from Thursday evening to Sunday evening, and every
Saturday from 8:00 a.m. to 8:00 p.m. After L.G.D. started kindergarten, she
would reside with Stockton for the majority of the time, living with Stockton during
the week and with Darnell every weekend from Friday after school until Monday
morning. Darnell agreed to take full responsibility for the cost of dispute
resolution and for all transportation until Stockton obtained a driver’s license and
car.
In early 2017, law enforcement contacted Child Protective Services (CPS)
to report that Stockton had spent the night in a hotel room with L.G.D. and a
registered sex offender. Stockton claimed the individual had given her a false
name and that she did not know about the sex offense. Stockton ended the
relationship and the CPS report was later dismissed.
In May 2017, Stockton requested a welfare check on L.G.D., asserting
that L.G.D. had bruising on her stomach, arms, and legs. Police examined
L.G.D. that same day and found no bruising on her body. In late 2017, Darnell
called the police to report harassing e-mails from Stockton. No action was taken.
3 No. 84216-1-I/4
In August 2019, CPS screened in1 a complaint about Darnell and his new
wife, Liisa Seitz’s, alleged drug use and discipline of their children. The family
was referred to a Family Assessment Response due to the volume of complaints
rather than the severity of a single complaint. A few months later, Darnell again
reported that Stockton continued to text him repeatedly despite his requests that
she stop.2 Officers did not believe the incident constituted harassment.
In August 2020, Darnell petitioned to modify the parties’ parenting plan.
Darnell asserted that Stockton was unable to provide a safe environment for
L.G.D., “either psychologically, emotionally, or physically” and requested that he
remain the parent with whom L.G.D. resided the majority of the time. Darnell
alleged that Stockton “talks relentlessly to [L.G.D.] about [him] in very negative
terms,” puts a “huge emotional burden” on L.G.D., and tries to “alienate” him from
L.G.D. He also claimed that Stockton had “never had a stable home” and
instead “lived at Mary’s [P]lace or shelters throughout the Seattle area.” Finally,
Darnell noted that Stockton “still does not have a driver’s license and she cannot
transport [L.G.D.]”
In September 2020, the court found adequate cause for a modification and
issued a temporary parenting plan, in which L.G.D. continued to reside with
Darnell the majority of the time. The temporary plan granted Darnell sole
1 When a report is “screened in,” CPS conducts an investigation based on the allegations. 2 In his briefing on appeal, Darnell contends that police cited Stockton for
two counts of domestic violence telephone harassment in response to his complaint. But the testimony Darnell cites in support of this assertion relates to an incident in 2016, not this particular 2019 incident.
4 No. 84216-1-I/5
decision-making authority for L.G.D.’s school, health care, childcare, and
extracurricular activities. The temporary parenting plan also directed Stockton to
undergo a forensic psychological evaluation and to comply with all treatment
recommendations.
In the meantime, a Court Appointed Special Advocate (CASA), Beth
Edwards, conducted an evaluation and opined that L.G.D. “would benefit from
more time with Mr. Darnell” and that “Ms. Stockton should have [L.G.D.] for two
days a week.” Edwards also noted that Stockton, who resides in Bellevue, “does
not have a driver’s license” and that L.G.D. was attending school in Renton,
where Darnell lived. Edwards recommended that it was in L.G.D.’s best interest
“to live primarily with the father (and not change the child’s current primary
residential parent).”
The parties proceeded to trial in April 2022. The court heard testimony
from both parents, the CASA, several friends and family members, an Issaquah
police officer, and Stockton’s work supervisor.
In its final order, the court found that there had been a substantial change
in circumstances, that the 2016 parenting plan was harmful to L.G.D., that the
harm in changing the 2016 parenting plan was outweighed by the potential
benefits of a new plan, and that a new parenting plan was in L.G.D.’s best
interest. The court also made numerous findings about Stockton’s parental and
personal troubles, including that her fixation on Darnell resulted in a toxic
coparenting dynamic; that this toxicity caused emotional harm to L.G.D.; that
Stockton’s mental health was concerning; that she was “notably, and seriously
5 No. 84216-1-I/6
combative during her testimony;” and that her mental health “can get in the way
of her ability to parent.” The court did not make similar findings about Darnell.
Instead, it noted that the 2016 parenting plan did not afford L.G.D. “a reasonable
amount of time with Mr. Darnell who is also a fit parent to whom she is bonded
and has spent most of her childhood living with.” It also found that “[d]isrupting
contact between [L.G.D.] and her father will cause harm to [L.G.D.]”.
Despite these findings, the court’s new parenting plan mirrored much of
the 2016 parenting plan and kept Stockton as the parent with whom L.G.D. would
reside with for a majority of the time. The court also ordered that Darnell would
have sole decision-making authority over L.G.D.’s health care and schooling due
to its concerns about Stockton. Finally, the court noted that if the parties’
employment schedules or geographic proximity changed to permit a more equal
residential schedule, then the residential provisions would automatically change
to permit a 50-50 schedule. Darnell appealed.
ANALYSIS
Modification of Parenting Plan
Darnell contends that the court erred as a matter of law by applying
RCW 26.09.187, which governs the establishment of a permanent parenting
plan, rather than RCW 26.09.260, which applies to modifications of a parenting
plan. He argues that the court abused its discretion in issuing the modified
parenting plan because it is contrary to L.G.D.’s best interests. He also
challenges the court’s related conclusion of law that Stockton should be the
6 No. 84216-1-I/7
parent L.G.D. resides with the majority of the time as not being supported by its
findings of fact. We agree.
We review a trial court’s decision on modification of a parenting plan for an
abuse of discretion. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546
(2012). 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 standard.” Littlefield, 133 Wn.2d at 47.
We review findings of fact for substantial evidence, which is a quantum of
evidence sufficient to persuade a rational fair-minded person that the premise is
true. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369
(2003). We do not reweigh evidence or judge witness credibility. In re Marriage
of McNaught, 189 Wn. App. 545, 561, 359 P.3d 811 (2015). We review
conclusions of law de novo. Dickie, 149 Wn.2d at 880.
A trial court’s authority to modify a parenting plan is strictly controlled by
statute. In re Marriage of McDevitt, 181 Wn. App. 765, 769, 326 P.3d 865
(2014). RCW 26.09.260 establishes a strong presumption in favor of custodial
continuity and against modification as custodial changes are viewed as highly
disruptive to children. In re Marriage of MacLaren, 8 Wn. App. 2d 751, 770, 440
7 No. 84216-1-I/8
P.3d 1055 (2019); In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239
(1993). Modification of a parenting plan is a two-step process. RCW 26.09.260-
.270. First, the party seeking modification must produce an affidavit showing
adequate cause for the modification before the court will permit a full hearing.
RCW 26.09.270; In re Marriage of Zigler, 154 Wn. App. 803, 809, 226 P.3d 202
(2010). Once the moving party establishes adequate cause and the court holds
a hearing, the court may then modify the parenting plan if it finds (1) that a
substantial change has occurred in the circumstances of the child or nonmoving
party as they were previously known to the court; and (2) that modification is in
the child’s best interests. RCW 26.09.260(1). The court must retain the
residential schedule established by the original parenting plan unless it finds that
the child’s present environment is detrimental to the child’s health and the
modification will be more helpful than harmful to the child. RCW 26.09.260(2)(c).
The court may also “reduce or restrict contact between the child and the parent
with whom the child does not reside a majority of the time if it finds that the
reduction or restriction would serve and protect the best interests of the child
using the criteria in RCW 26.09.191.” RCW 26.09.260(4). The “present
environment” refers to the custodial environment named in the original parenting
plan. George v. Helliar, 62 Wn. App. 378, 383, 814 P.2d 238 (1991).3
3 We briefly acknowledge, and decline to follow, the definition of “present environment” set out by Division Two of this court in In re Marriage of Ambrose, 67 Wn. App. 103, 834 P.2d 101 (1992). In Ambrose, the court defined “present environment” as “the environment that is being provided to a child by the residential child’s parent or custodian, contemporaneously with the trial court’s consideration of the matter.” 67 Wn. App. at 107. Because parties in a
8 No. 84216-1-I/9
1. Misapplication of RCW 26.09.187
In its findings and conclusions on the final parenting plan, the court stated: In conclusion, several goals emerge for setting a residential schedule in this case, to: (1) hold the parties to their agreements (“b”); (2) make certain [L.G.D.] has close to equal time with each parent (“a”, “c”, “d”, “e”, and “f”); and (3) accommodate each parent’s employment schedule and geographic location (“g” and “h”).
These are the factors found in RCW 26.09.187, which are the criteria for
establishing a permanent parenting plan. In contrast, in modification
proceedings, the court does not “start from scratch” and reconsider the factors in
RCW 26.09.187. Instead, the court must follow the procedures and factors set
out in RCW 26.09.260. Therefore, it was an error of law for the court to consider
the RCW 26.09.187 factors in this case where the parties already had a
permanent parenting plan and were merely seeking to modify that plan.
We note, too, that the court erred by prioritizing permanency and by
conflating continuity with permanency. At trial, the court noted that “permanency
is what’s in the children’s best interest.” And in its findings and conclusions, the
court opined that “finality in parenting plans is vital” and that “[j]ust like in
dependency matters, the public policy underlying family law matters centers on
modification proceeding are attempting to modify their permanent parenting plan, a more logical definition of “present environment” is the residential schedule called for in the permanent parenting plan. See, e.g., George v. Helliar, 62 Wn. App. 378, 383, 814 P.2d 238 (1991) (“By necessity, ‘present environment’ in that context refers to the custodial environment named in the original custody decree. To conclude otherwise would improperly shift the burden of proof in modification proceedings to the nonmoving party.” (internal citation omitted)). We caution that a different definition of “present environment” could lead to confusion in modification proceedings, particularly if the parties are following a temporary parenting plan (or not abiding by any parenting plan at all).
9 No. 84216-1-I/10
permanency.” These statements are contrary to the policy goals set forth in
chapter 26.09 RCW, which prioritizes children’s wellbeing and continuity. The
policy section of the chapter provides the best interests of the child are “served
by a parenting arrangement that best maintains a child’s emotional growth,
health and stability, and physical care.” RCW 26.09.002. It also emphasizes the
importance of maintaining “the existing pattern of interaction between a parent
and child” and notes that it should be altered only “to the extent necessitated by
the changed relationship of the parents or as required to protect the child from
physical, mental, or emotional harm.” RCW 26.09.002. These goals are
distinctly different from those of dependency proceedings, which aim to preserve
the family unit and to protect a child’s right to “a safe, stable, and permanent
home.” RCW 13.34.020.
2. Modified Parenting Plan and Challenged Conclusions of Law
Darnell asserts that the court’s conclusion that Stockton should be the
parent L.G.D. resides with the majority of the time is not supported by the court’s
findings of fact.4 We agree.
As discussed, the court found that there had been a substantial change in
circumstances, that the custodial environment had deteriorated, that the 2016
parenting plan was harmful to L.G.D., that the advantages of a new parenting
4 Darnell also challenges the court’s conclusion that if the parties’ employment schedules of geographic proximity ever change to permit more equal time during the school schedule, then the residential schedule will automatically change to a 50-50 schedule. Because Darnell does not devote any section of his brief to discussing this challenged conclusion, we decline to address it. See State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (“This court will not consider claims insufficiently argued by the parties.”).
10 No. 84216-1-I/11
plan outweighed the harms, and that a new parenting plan was in L.G.D.’s best
interests.
The court also found that the “co-parenting dynamic is toxic” and “causing
emotional harm [to L.G.D.]” and that “[t]he toxicity has the potential to cause even
greater harm to [L.G.D.] as her trials and tribulations grow more consequential
with age.” The court then found that it was “more likely than not [that] (a) Ms.
Stockton has overly involved [L.G.D.] in this litigation, (b) Ms. Stockton had not
stayed current with [L.G.D.]’s education and health care or consistently exercised
her parenting time with [L.G.D.], and (c) Ms. Stockton continues to blame
Mr. Darnell for every problem.”
In its findings on L.G.D.’s present environment, the court noted that the
custodial environment had deteriorated, that joint decision-making was
“impossible,” and that the parties’ original parenting plan “does not afford [L.G.D.]
a reasonable amount with Mr. Darnell who is also a fit parent to whom she is
bonded and has spent most of her childhood living with.”
The court also made findings as to each parent. As to Darnell, it found
that he is a self-admitted daily marijuana user but that a finding for substance
abuse was not warranted. As to Stockton, it found that her mental health was
“concerning” and noted that the forensic psychological evaluation contained
questions about her “tendency towards outbursts of verbal aggression, rigidness,
compulsiveness, and potential ADHD features, which were fully present at trial.”
It also found that Stockton was “notably, and seriously combative during her
testimony” and that “[i]n considering all the evidence, Mr. Darnell ha[d] met his
11 No. 84216-1-I/12
burden to show [Stockton’s] mental heath can get in the way of her ability to
parent.” On that note, the court found that Stockton’s tendency for “[s]tress
overload and low coping skills create a real danger or risk of harm to [L.G.D.]”
and that “[a] finding for an emotional or physical problem is warranted.”
Despite the litany of findings indicating that L.G.D. should reside with
Darnell the majority of the time and the court’s own acknowledgement that the
original residential schedule “contradicts a substantial and impressive consensus
within our case law and statutes about the importance of continuity and stability
in the child’s environment,” the court largely reinstituted the same residential
schedule, altering only the parties’ summer and holiday schedules. The court’s
conclusion that L.G.D. should live the majority of the time with Stockton is not
supported by its numerous findings that Stockton struggles to adequately care for
L.G.D. We also highlight the impracticality of the newly modified residential
schedule: Stockton lives in Bellevue, has neither a driver’s license nor a car, nor
the means to use a ride-share service, and testified that she has no intention of
getting a license and that she cannot transport L.G.D. to school. Instead,
Darnell, who lives in Renton and works during the day, is tasked with arranging
for L.G.D.’s transportation to and from school each day.5 The new parenting plan
also does not provide a deadline for Stockton to obtain a driver’s license or car;
thus, Darnell could remain responsible for arranging L.G.D.’s transportation for
5 It is unclear whether Stockton has enrolled L.G.D. in a school in Bellevue as permitted by the new parenting plan or whether L.G.D. is still enrolled in Renton. Either way, it is unreasonable for Darnell to be solely responsible for transporting L.G.D.
12 No. 84216-1-I/13
the foreseeable future, as he has been for the last several years. Furthermore,
Stockton is now responsible for caring for L.G.D. for five days a week but has no
decision-making authority over her education or health care.
The court’s findings of fact do not support the its conclusion that Stockton
should be the parent with whom L.G.D. resides the majority of the time. And
because the modified parenting plan is manifestly unreasonable, we conclude
that the court abused its discretion in entering the new parenting plan.
RCW 26.09.191 Restrictions
Darnell also asserts that the court erred by failing to conclude that
Stockton uses conflict to the detriment of L.G.D. despite entering several related
findings. We disagree that the court made such findings and remand for the
court to enter findings about Stockton’s abusive use of conflict, any related
conclusions of law, and any further restrictions the court sees necessary.
RCW 26.09.191(3) provides that the court may limit any provision of a
parenting plan if a parent’s involvement or conduct may have an adverse effect
on the child’s best interest. The statute lists several factors that may serve as
the basis for such a limitation, including the abusive use of conflict, long-term
emotional or physical impairment, or any other factors as the court expressly
finds adverse to the best interests of the child. RCW 26.09.191(3).
Here, the court found that “[t]he greatest concern is the history of criminal
charges and protection order proceedings between the parties” and concluded
that “it warrants a finding against both parents under RCW 26.09.19(g) (‘Such
other factors or conduct as the court expressly finds adverse to the best interests
13 No. 84216-1-I/14
of the child.’).”6 The also court restricted Stockton’s decision-making authority,
gave Darnell sole decision-making authority over health care, and limited the
parties’ communication methods accordingly. The court stated that Darnell “will
mostly have sole decision-making over education,” except that Stockton could
enroll L.G.D. in a “local school” of her choosing after L.G.D. completes first
grade.
Contrary to Darnell’s assertion, the court did not make findings about
Stockton’s abusive use of conflict; it merely summarized testimony from trial that
could support such a finding. But because Darnell requested a restriction based
on such a finding, the court should have made a finding as to whether Stockton
engaged in abusive use of conflict. We also note that Darnell requested sole
decision-making authority for childcare and L.G.D.’s extracurricular activities but
that the court failed to address this request.
On remand, the court is directed to enter findings of fact and any related
conclusions of law concerning the allegation of abusive use of conflict, and if it
finds that it exists, determine whether further restrictions are necessary. It should
also rule on Darnell’s request for sole decision-making over childcare and
extracurricular activities.
We reverse and remand for entry of a new parenting plan consistent with
this opinion. We also direct the court to revisit any child support order that was
6Darnell also assigns error to this finding as being unsupported by substantial evidence but does not devote any space in his briefing to explaining this challenge. See Elliott, 114 Wn.2d at 15 (“This court will not consider claims insufficiently argued by the parties.”).
14 No. 84216-1-I/15
entered in light of the fact that L.G.D. will reside with Darnell the majority of the
time.
WE CONCUR: