IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of )

No. 78294-1-I

CHRISTINA MARIA QUINTANAR, )

n/k/a ROBERTS, ) DIVISION ONE

Appellant, ) UNPUBLISHED OPINION

)

and

GREGORIO QUINTANAR,

) FILED: December 16, 2019

Respondent.

LEACH, J. — Christina Roberts appeals the trial court’s decision to change

the primary residence of her son, M.Q. Roberts challenges several findings of

fact. She also asserts that the court exceeded its authority, abused its discretion,

made incorrect evidence decisions, and violated her right of procedural due

process when it modified the parenting plan. Finally, she contends that a biased

guardian ad litem (GAL) tainted the court’s decision.

Substantial evidence supports the challenged findings. The trial court had

authority to retain jurisdiction for a year to review the efficacy of its initial decision

and, within that year, to implement a major modification. Because the court

found grounds for a major modification and appropriately balanced the impact of
No.78294-1-1/2

relocation on M.Q. against the harm of not relocating him, it did not abuse its

discretion when it changed M.Q.’s primary residence. The trial court did not

abuse its discretion in applying the missing witness rule, in making

determinations about the weight of evidence, or in refusing to consider a letter

sent directly to the court. Because Roberts had notice that the court had

reserved making a final decision about changing M.Q.’s primary residence and

intended to conduct a review hearing before making a final decision, the trial

court did not violate Roberts’s right to procedural due process. She also fails to

establish that the GAL was biased. We affirm.

FACTS1

Gregorio Quintanar and Christina Roberts divorced in 2009. They had

one child, three-year-old M.Q. At that time, they agreed to a final parenting plan

assigning primary residential time to Roberts. From 2009 to mid-2014, the

parties did not follow the plan but agreed on scheduling M.Q.’s residential time

with each parent. Sometime after the divorce, Deforest Brown, Roberts’s current

fiancé, began living with her.

At the time, Quintanar served in the Army. In June 2014, the military

ordered him to relocate to Alaska. After Quintanar and his girlfriend, Joann

1 This section is based, in part, on the trial court’s uncontested findings.

Unchallenged findings are verities on appeal. Estate of Nelson v. Dep’t of Labor

& Indus., 175 Wn. App. 718, 723, 308 P.3d 686 (2013). We include challenged

findings only as a description of the trial court’s actions.

-2-
No. 78294-1-I /3

Hazard, moved to Alaska, he and Roberts were unable to work together to parent

M.Q. Quintanar and Hazard married in 2016. In 2017, Quintanar retired from the

Army. He accepted a civilian job with an Alaskan communications company.

In November 2014, Roberts filed a petition requesting a minor modification

in the parenting plan under ROW 26.09.260(5)(a) and (5)(b). She alleged that

Quintanar’s move to Alaska made it difficult to follow the existing plan. Quintanar

did not object but reserved the right to amend his answer. In late December, the

court found Roberts in contempt because she failed to make M.Q. available

during Quintanar’s residential time. The court adopted a temporary parenting

plan that allocated M.Q.’s residential time with each parent during Quintanar’s

local, adjacent, and remote postings.

In May 2015, the court again found Roberts in contempt for failing to make

M.Q. available to Quintanar during his residential time. In August 2015,

Quintanar amended his answer to Roberts’s petition to include a counterpetition

requesting a major modification of the parenting plan under ROW 26.09.260(1),

(2)(c), and (2)(d). He requested a temporary parenting plan placing M.Q.’s

primary residence with him. The court appointed Cynthia Bemis as GAL. The

parties stipulated to adequate cause for a trial on Quintanar’s major modification

request.

-3-
No. 78294-1-1/4

In late 2015, as a result of a misunderstanding about Roberts’s payment

of Bemis’s retainer, the court commissioner struck Roberts’s pleadings and

granted Quintanar ex parte relief, modifying the parenting plan and placing

M.Q.’s primary residential time with him. The same day, Quintanar picked M.Q.

up from school and moved him to Alaska. The court later vacated the default

relief and entered a temporary parenting plan that restored M.Q.’s primary

residence to Roberts.

In early March 2016, Quintanar asked the court to modify the temporary

parenting plan and appoint a GAL for M.Q. The court modified the plan to allow

video phone calls, discharged Bemis as GAL, and appointed Margaret Fowler as

GAL. The court also reinstated Roberts’s stricken pleadings.

The court held a trial in May 2017. Neither Brown nor Hazard testified.

The court applied the missing witness rule to Brown because he did not testify. It

did not apply the rule to Hazard, who was absent because of a work-related

event. The court explained that Hazard did not seem to the court “to be central

to this case as was . . . Brown [g]iven his history and the fact that he

automatically brings [RCW 26.09].191 factors to the petitioner’s side.”

The trial court found grounds for both a minor and major modification of

the parenting plan. It made extensive findings. It summarized much of its

decision in these paragraphs:

-4-
No. 78294-1-1/5

The Court has considered the factors in RCW 26.09.260. The

Court finds, based upon facts and circumstances that have arisen

since the divorce decree and parenting plan entered in 2009, that a

substantial change has occurred in the circumstances of the child

and Ms. Roberts. The Court finds that modification is in the best

interests of [M.Q.], and is necessary to serve his best interests.

The Court has found limiting factors with regarding to Ms. Roberts

under RCW 26.09.191 that did not exist in 2009, that she has been

found in contempt of court twice in the past three years, and that

the level of conflict she and Mr. Brown engage in, particularly with

[M.Q.J present, is detrimental to his mental and/or emotional health.

The Court is not convinced this detrimental behavior has ceased on

the part of Ms. Roberts and Mr. Brown.

Nevertheless, the Court is not, at this time, transferring the primary

residence of [M.Q.] due to concerns that the negative impact of

uprooting the child from his home and social system would

outweigh the benefit to him at this time. However, the court is

reserving ruling on whether the child’s living situation with petitioner

is so harmful to his physical, mental, or emotional health that it

would be better for him to move to Alaska with his father.

The court entered a final parenting plan modifying the original 2009

parenting plan but maintaining primary residence with Roberts. The plan

included increased residential time allocated to Quintanar and also placed

limitations on Roberts and Brown. It required that Roberts “work to actively

promote a positive relationship between” Quintanar and M.Q. It ordered her to

“[ajttend at least 10 hours of parenting classes focused on parenting children of

divorce and the emotional impact of conflict between divorced parents on a child”

and “to attend counseling sessions with” M.Q.’s Washington-based therapist,

-5-
No. 78294-1-I /6

Charles Bartlett, and M.Q. It stated that it would transfer primary residential time

to Quintanar if Roberts failed to follow these treatment requirements.

The parenting plan contained a review provision:

This plan is subject to review and change without additional

findings of adequate cause for up to one year from today’s date.

Any violation of a provision of this order by Petitioner will be

adequate cause for modification. This Court retains jurisdiction for

one year to review the efficacy of this order.

A Review Hearing is set for January 12, 2018 at 9:00 am. The

Guardian Ad Litem Report is due to the parties and the court two

weeks before that date.

The court directed the guardian ad litem to report to the court about the

parties’ compliance with its order, the status of M.Q.’s relationship with his father,

and “thorough information about whether Petitioner’s living situation is harmful to

the child’s physical, mental, or emotional health, to include thorough background

checks and investigation of De Forest Brown or anyone else living in the home,

interviews of neighbors, and other collateral sources.” The court also directed

the guardian ad litem to provide additional information about Hazard and her

fitness to parent.

Neither party appealed.

The court held a three-day review hearing starting on January 12, 2018.2

Hazard testified, but Brown did not. In its analysis, the court again applied the

2 The trial dates were January 12 and February 12 and 15, 2018.

-6-
No.78294-1-1/7

missing witness doctrine to Brown and inferred that “Roberts thought that calling

Mr. Brown as a witness would have been damaging to her case.”

The court incorporated its June 23, 2017, findings of fact and entered

additional findings. It reiterated “that the 2017 Final Parenting Plan was ‘subject

to review and change without additional findings of adequate cause for up to one

year.” It stated that it found, “based on the evidence presented at trial on

January 12, February 12 and 15, 2018, that there has been a substantial change

in circumstances since entry of the June 23, 2017 Final Parenting Plan

warranting further modification of the parenting plan.” The court entered a final

parenting plan modifying the 2017 plan and placing M.Q.’s primary residence

with Quintanar. It maintained limitations on Roberts under RCW 26.09.191(2)(a),

(2)(b), and (3) based on its concerns about Brown. The court ordered Quintanar

to “continue to attend therapy with [M.Q.] until such time as the therapist

determines that it is no longer beneficial.”

Roberts appeals.

ANALYSIS

Roberts contends the trial court should not have adopted the March 16,

2018, order and parenting plan changing M.Q.’s primary residence from her

home to Quintanar’s. Because substantial evidence supports the trial court’s

findings, the trial court did not exceed its authority, and the trial court did not

-7-
No. 78294-1-I / 8

violate her procedural due process rights or abuse its discretion in its evidentiary

or final decisions, we affirm.

Substantial Evidence Sugports the Findings

Roberts assigns error to various findings of facts made by the trial court on

June 23, 2017, and March 16, 2018.~

This court reviews the record to decide if substantial evidence supports a

trial court’s findings of fact.4 Substantial evidence exists when the record

includes enough evidence to persuade a fair-minded, rational person of the truth

of the finding.5 “Appellate courts do not hear or weigh evidence, find facts, or

substitute their opinions for those of the trier-of-fact.”6 An appellate court accepts

unchallenged findings as true on appeal.7

First, Roberts challenges findings stating that Roberts and Brown

disrupted M.Q.’s relationship with Quintanar, that they fostered the idea that

~ She highlighted most of the challenged findings in the appendix to her

opening brief. She addresses a subset of the highlighted findings as well as

nonhighlighted findings in the body of her brief.

~ Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102

Wn. App. 422, 425, 10 P.3d 417 (2000).

~ In re Marriage of Spreen, 107 Wn. App. 341, 346, 28 P.3d 769 (2001)

(citing Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)).

6 Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d

266 (2009) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 572,

343 P.2d 183 (1959)).

~ Nelson, 175 Wn. App. at 723.

-8-
No. 78294-1-1/9

Brown was more important than Quintanar, and that Brown ‘has caused serious

damage” to M.Q.’s relationship with Quintanar.

The court made unchallenged findings describing Roberts withholding

M.Q. from Quintanar and interfering with their relationship. For example, it found

that “Christina Roberts has kept the other parent away from [M.Q.j for a long

time, without good reason.” It also found that she had not “followed the court’s

parenting/custody order. A court found her in contempt for disobeying the parenting

schedule more than once in three years.” It summarized testimony that described

an incident when Roberts swore at Quintanar in front of M.Q.

The court also made unchallenged findings describing Brown actively

interfering in the relationship between Quintanar and M.Q. For example, Brown

encouraged {M.Q.) to spy on Mr. Quintanar and his wife. . . . Brown

affirmed [M.Q.]’s spying behaviors by sending reply texts which

stated “good job” as related to a photograph of a package of

cigarettes in Ms. Hazard’s car and “Merry Christmas” in response to

a text containing a photograph of Ms. Hazard and her former

husband.

Finally, the court made unchallenged findings describing M.Q. as distant

from his father after they were separated for long periods of time and detailing his

expression of negative feelings against his father. For example,

After father’s day in June 2014, Mr. Quintanar did not see [M.Q.]

until spring break 2015. The Court finds that Mr. Quintanar called

and left messages attempting to contact [M.Q.] through Ms.

Roberts, but these calls were never returned. Mr. Quintanar was

next able to see [M.Q.] after a court order, but their relationship was

-9-
No. 78294-1-I /10

somewhat strained. The Court finds that prior to June 2014, Mr.

Quintanar and {M.Q.] had a very positive relationship as shown

through testimony and [M.Q.]’s entries in [his notebook].{8]

Also, the court made an unchallenged finding that M.Q. “wrote ‘Jonni [Hazard]

picks on me, Greg [Quintanar] is OK with it, ‘Die’ and [included a drawing of] both

of them hanging and [M.Q.] standing to the side crying,” and that he “wrote a

song called ‘Let me be’ expressing his desire to be with his mom and Mr. Brown.”

So substantial evidence supports the findings that Roberts and Brown

negatively interfered with M.Q.’s relationship with Quintanar.

Second, Roberts challenges the court’s findings that conflict arising from

Roberts’s and Brown’s behavior endangered M.Q.’s emotional safety and was

harmful to his health. She also challenges the findings stating that Brown was

M.Q.’s “primary father figure” in Roberts’s home but was not an appropriate

father-figure, had “engaged in inappropriate and harmful conduct in front of”

M.Q., and that Roberts’s choice to live with Brown created a harmful environment

for M.Q. She challenges the finding that M.Q. needs a “more conflict-free home.”

The court’s unchallenged findings describe instances of conflict and

volatility that M.Q. experienced as a result of Roberts’s and Brown’s conduct.

For example, it found that Roberts swore at Quintanar in front of M.Q. The court

8 This finding refers to exhibit 129, the notebook, but the parties did not

include this exhibit in the record.

-10-
No. 78294-1-I/li

also found that M.Q. “repeated to a CPS [Child Protective Services] person that

Mr. Brown put dog feces in his face.”

The record includes substantial evidence that in choosing to live with

Brown, Roberts endangered M.Q.’s health. For example, in its 2014

investigation of this incident, CPS reported that Roberts justified Brown’s

mistreatment of M.Q. and that she was “[i]nvolved in harmful relationships.”

The court’s unchallenged findings provide examples of how Brown was an

inappropriate father figure and engaged in “harmful conduct” in front of M.Q.

These findings also demonstrate that M.Q. would do better with less conflict. For

example, one unchallenged finding states that Brown had a “history of Domestic

Violence, [had] recently assaulted another person, [and] had multiple petitions for

anti-harassment filed against him by various different individuals in 2012 and

2013.” In another unchallenged finding, the court states,

[Brown] pulled out of the garage in an SUV type vehicle believed to

belong to Christina Roberts with [M.Q.] sitting in the front seat. As

[the process server] was walking back to her truck, Mr. Brown rolled

down his window and started yelling profanities at [her] over

[M.Q.’s] head. These profanities included terms that are

considered very derogatory toward women. She testified that

[M.Q.] put his head down and covered his ears. Mr. Brown told

[her] that if she ever stepped foot on his property that he would

physically remove her. [She] said she understood and that she just

had documents to serve on Christina. Mr. Brown then made a Uturn in the cul-de-sac and started driving towards [her] at a high

rate of speed, which she estimated to be about 45 miles per hour.

[She] thought Mr. Brown was going to run her down and got in front

—11—
No. 78294-1-I / 12

of her truck to protect herself. {Shej testified that [M.Q.] looked very

shaken up.

So substantial evidence supports the court’s findings that the conflict in

Roberts’s home, particularly that related to Brown’s behavior, was harmful to

M.Q. and that he needed a more conflict-free home.

Third, Roberts challenges the court’s findings stating that there was a

substantial change in circumstances between the 2009 parenting plan and the

2017 trial and its 2017 order and the 2018 hearing reviewing the efficacy of its

order.

In unchallenged findings, the court identified several major changes in

M.Q.’s and Roberts’s circumstances that occurred between 2009 and 2017.

These include

2. The mother has been found in contempt of court twice in the

• pastthreeyears;

3. The mother withheld the child from the father and prevented

contact with the father for a prolonged period of time in 2014;

4. The mother began living with a man named De Forest Brown

who has a history of Domestic Violence, has recently assaulted

another person . . . , has had multiple petitions for anti-harassment

filed against him by various different individuals in 2012 and 2013.

(Emphasis omitted.)

In another unchallenged finding, the court identified

limiting factors with regard to Ms. Roberts under RCW 26.09.191

that did not exist in 2009, that she has been found in contempt of

court twice in the past three years, and that the level of conflict she

-12-
No. 78294-1-I /13

and Mr. Brown engage in, particularly with [M.Q.] present, is

detrimental to his mental and/or emotional health.

The court made unchallenged findings that describe changes in Roberts’s

and M.Q.’s circumstances between the 2017 and 2018 hearings:

2. Dog Feces. [M.Q.] repeated to a CPS person that Mr.

Brown put dog feces in his face.

3. Petition for Anti-Harassment Order. Mr. Brown has had

another petition for an anti-harassment order filed against

him and an order granted.

4. New Person Filing for Anti-Harassment Order. The

person who filed the most recent petition for an antiharassment order is not one of the same persons who

before has filed such a petition against Mr. Brown.

5. Unrelated to Mr. Quintanar. The person now filing the

petition for an anti-harassment order against Mr. Brown is in

no way related to Mr. Quintanar.

11. Spying. Mr. Brown has encouraged {M.Q.] to spy on Mr.

Quintanar and his wife.

12. Affirmation of Spying Behavior. Mr. Brown affirmed

[M.Q.’s] spying behaviors by sending reply texts which

stated “good job” as related to a photograph of a package of

cigarettes in Ms. Hazard’s car and “Merry Christmas” in

response to a text containing a photograph of Ms. Hazard

and her former husband.[9]

~ Some of these findings referred to events that occurred between 2009

and 2017, but the court first learned of them in 2018, such as the CPS report

regarding dog feces. Others refer to new events, such as the new petition for an

antiharassment order against Brown.

-13-
No. 78294-1-I /14

In another unchallenged finding, the court states, “[T] he child’s situation

living primarily with petitioner has worsened” since 2017.

So substantial evidence supports the findings that M.Q. and Roberts

experienced substantial changes in circumstances between 2009 and 2017 and

between 2017 and 2018.

Fourth, Roberts challenges the 2018 finding that a change in residence

was in M.Q.’s best interest.

As discussed above, several unchallenged findings describe excessive

conflict in Roberts’s house, inappropriate conduct by Brown in front of M.Q., and

interference by both Brown and Roberts with M.Q.’s relationship with his father.

In addition, conditions “worsened” between 2017 and 2018.

So substantial evidence supports the trial court’s finding that a change in

primary residence was in M.Q.’s best interest.

Fifth, Roberts challenges several additional findings. She challenges the

finding that ‘[hjistorically, the relationship between the parents post-dissolution

was such that Ms. Roberts dictated how things would work and Mr. Quintanar

acquiesced.” In her testimony, Roberts stated that before 2014, she regularly

offered a schedule for M.Q. to Quintanar, and he accepted. Also, in e-mail

during this time, Roberts often proposed a schedule, and Quintanar agreed.

-14-
No. 78294-1-I /15

Roberts testified that the conflict in residency started when Quintanar “wanted to

revert back to the 2009 schedule.” So substantial evidence supports this finding.

Roberts challenges the finding that “[t]he Court finds that [M.Q.] is very

much afraid of upsetting or in any way disagreeing with his mother.” The GAL

testified that it was possible that M.Q. aligned with Roberts “in part from fear of

her.” So substantial evidence supports this finding.

Roberts challenges the finding that “[o]ne of Ms. Roberts’ neighbors had

property damaged during a conflict with Mr. Brown.” The GAL testified about a

confrontation with Brown and Roberts’s neighbor about his lean-to. In her report,

she described Brown breaking the welcome sign off the wall of the neighbor’s

porch. The neighbors told the GAL that the next day, the roof of the lean-to was

destroyed and the gate lock was cut off. So substantial evidence supports this

finding.

Finally, Roberts challenges the finding that “[ajlthough Ms. Roberts

testified that [M.Q.] was asleep and was unaware of this incident, the Court finds

that the potential for emotional and physical harm is high.” Roberts challenges

the following language from the court’s otherwise unchallenged finding:

On one occasion, Mr. Brown was arrested after the police breached

Ms. Roberts’[sj door because she did not answer. Ms. Roberts

testified that she was in the shower at the time the police arrived,

although she knew they were looking for Mr. Brown. Ms. Roberts

was handcuffed, and Mr. Brown was arrested leaving a neighbor’s

house.

-15-
No. 78294-1-I /16

Given this unchallenged portion of the finding, substantial evidence supports the

trial court’s final sentence stating that the potential for harm was high during such

incidents.

Roberts fails to show that the challenged findings are not supported by

substantial evidence. Instead, she asserts that the court ignored testimony of

conflict at Quintanar’s house and the stress caused by relocating M.Q. abruptly in

December 2015. And she claims the contested findings cannot be “squared with

the court’s finding” that Roberts is a good mother and M.Q. is well adjusted. But

this court reviews findings for substantial evidence and it does not “weigh

evidence, find facts, or substitute [its] opinion[ ] for those of the trier-of-fact.”10

Even if other evidence contradicts it, this court accepts a finding supported by

substantial evidence because credibility determinations are left to the trier of fact

and are not subject to review.11

We conclude that substantial evidence supports the challenged findings.

The Court Did Not Exceed Its Authority

Roberts asserts that the trial court exceeded its authority when it reopened

and reweighed evidence at a review hearing after it had already entered findings

and orders on the petitions to modify residence and the parenting plan following

a full evidentiary hearing.

10 Quinn, 153 Wn. App. at 717 (citing Thorndike, 54 Wn.2d at 572).

~ Statev. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

-16-
No. 78294-1-1/17

This court reviews a challenge to a trial court’s authority de novo.12 Trial

courts receive their power over family law matters from the common law and

statute.13 Their equitable powers give them the authority to defer a final decision

on a parenting plan under RCW 26.09.260 for a limited period of time.14 This is

true whether a court labels the parenting plan temporary or permanent.15

When it adopted the 2017 parenting plan, the court expressly deferred its

final decision about a major modification and change in primary residence. While

it found that a substantial change in circumstances had occurred and found

grounds for a major modification, it stated that it had “concerns about the

mother’s home environment and Mr. Brown’s behavior” and said it planned to

review “the efficacy [of] its order” in January and possibly again in May “to see if

a change is warranted and whether that change is, in fact transfer to Alaska.” It

stated that the parenting plan was “subject to review and change without

additional findings of adequate cause for up to one year” after June 23, 2017. It

scheduled its first review hearing for January 12, 2018.

The court had authority to retain jurisdiction, particularly because it

expressed its intent to review the efficacy of its 2017 order.

12 In re Marriage of Schneider, 173 Wn.2d 353, 358, 268 P.3d 215 (2011).

13 In re Marriage of Possinger, 105 Wn. App. 326, 333, 19 P.3d 1109

(2001).

14 In re Marriage of Adler, 131 Wn. App. 717, 725, 129 P.3d 293 (2006); In

re Marriage of True, 104 Wn. App. 291, 298, 16 P.3d 646 (2000).

15 Possinger, 105 Wn. App. at 337.

-17-
No. 78294-1-I /18

Roberts makes additional assertions to support her argument. None of

these claims have merit.

First, Roberts contends that the court based its decision to impose a major

modification in 2018 on different conditions or new facts and so exceeded the

authority it retained by deferring its ROW 26.09.260 determination in its 2017

order.

The court here determined in its original order that there were grounds for

a major modification. It supported its decision with additional facts, including the

finding of worsening conditions, but it had sufficient grounds to modify the

parenting plan based on its 2017 findings.

Second, Roberts asserts that the court made a finding in its 2017 order

that insufficient evidence” supported a determination that the benefit of removing

M.Q. from her home outweighed the detriment of relocating him and so it could

not find substantial evidence for this finding in 2018. But Roberts misrepresents

what the court said in its 2017 order. Rather than make a finding on whether the

benefit of a change in primary residence outweighed the harm, the court

reserved making this decision until after it had the opportunity to review the

efficacy of a minor modification. In 2018, it revisited this undecided issue and

made a determination that a major modification was in M.Q.’s best interest based

on its 2017 findings and additional evidence. We conclude that the trial court had

-18-
No. 78294-1-I / 19

the authority to make the determination that a change in primary residence was

in M.Q.’s best interest when it reviewed the efficacy of its 2017 order and

parenting plan.

Roberts relies on In re Marriage of Watson,16 where the court modified the

parenting plan based on statutory grounds the petitioning party had not raised.

Because the original petition in Watson alleged as the only grounds for a

modification alleged sexual abuse that was not proved and the parties did not

contemplate or argue other grounds for modification, the trial court lacked

authority to modify the parenting plan or order continuing visitation restrictions in

an amended temporary parenting plan.17 This case is not like Watson. The trial

court below based its decision on the factors the parties raised in their petitions

for modification under RCW 26.09.260 and that were supported by substantial

evidence.

The Trial Court Did Not Abuse Its Discretion By Changing M.Q.’s Primary

Residence

Roberts contends that the trial court abused its discretion by imposing a

major modification and awarding Quintanar primary residence.

This court reviews decisions to modify a parenting plan for abuse of

discretion.18 There is a “strong presumption in favor of custodial continuity and

16 132 Wn. App. 222, 231-33, 130 P.3d 915 (2006).

17 Watson, 132 Wn. App. at 233, 238-39.

18 In re Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202 (2010).

-19-
No. 78294-1-I /20

against modification.’19 But because “trial courts are given broad discretion in

matters dealing with the welfare of children,” this court will not disturb a trial

court’s decision to modify custody and visitation rights unless the trial court

manifestly abused its discretion.2° A trial court manifestly abuses its discretion

when it makes an unreasonable decision or bases its decision on untenable

grounds.21

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.[22~

A trial court is required to “determine[ J and allocate[] the parties’ parental

responsibilities” on the basis of what it finds is in “the best interest of the child.”23

The best interest of a child is served by stability unless a change is “required to

protect the child from physical, mental, or emotional harm.”24

RCW 26.09.187 provides the criteria a trial court uses to establish a

permanent parenting plan. Once a parenting plan is established, a court has

19 In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).

20 McDole, 122 Wn.2d at 610; In re Marriage of Fiorito, 112 Wn. App. 657,

664, 50 P.3d 298 (2002).

21 In re Marriage of Littlefield, 133 Wn. 2d 39, 47, 940 P.2d 1362 (1997)

(citing State v. Rundguist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).

22 Littlefield, 133 Wn.2d at 47 (citing Rundguist, 79 Wn. App. at 793).

23 RCW 26.09.002.

24 RCW 26.09.002.

-20-
No. 78294-1-I /21

authority to modify the plan under RCW 26.09.260. A court may make a major

modification, including a change in the primary residence of a child, if it

concludes that

upon the basis of facts that have arisen since the prior decree or

plan or that were unknown to the court at the time of the prior

decree or plan, that a substantial change has occurred 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 interests of the child.t25~

If a court finds a substantial change in circumstances has occurred, it may

change the residential schedule if it determines that

(c) The child’s present environment is detrimental to the

child’s physical, mental, or emotional health and the harm likely to

be caused by a change of environment is outweighed by the

advantage of a change to the child; or

(d) The court has found the nonmoving parent in contempt of

court at least twice within three years because the parent failed to

comply with the residential time provisions in the court-ordered

parenting plan. [26]

One action that is detrimental to a child’s best interests is “[i]nterference with [a

parent’s] relationship” to that child.27

As discussed above, the trial court made findings that M.Q. and Roberts

experienced substantial changes in circumstances between 2009 and 2017

because she had been the subject of two contempt orders from the court, she

25 RCW 26.09.260(1).

26 RCW 26.09.260(2).

27 In re Marriage of Velickoff, 95 Wn. App. 346, 357, 968 P.2d 20 (1998).

-21 -
No. 78294-1-1/22

withheld M.Q. from Quintanar in 2014, and she entered into a relationship with

Brown. These findings satisfy RCW 26.09.260(1).

The trial court found multiple instances when Roberts and Brown

interfered with M.Q.’s relationship with his father. It also found that the

environment at Roberts’s house risked and was causing emotional and physical

harm to M.Q., particularly through Roberts’s and Brown’s use of conflict. The

trial court explicitly weighed the impact of moving M.Q. against the harm he had

experienced and would experience if he remained in Roberts’s home. With this

analysis, it determined that this harm outweighed the damage a change in

primary residence might inflict. These findings satisfied RCW 26.09.260(2)(c).

Also, the court determined that Roberts was found in contempt of court

“for disobeying the parenting schedule more than once in three years.” This

satisfied RCW 26.09.260(2)(d).

So the court had sufficient grounds and conducted the proper balancing

analysis when it decided to change M.Q.’s primary residence, It did not abuse its

discretion.

Roberts makes several claims to support her argument. None have merit.

First, she contends that the court abused its discretion because it

“erroneously prioritized” M.Q.’s relationship with Quintanar over his best

interests. But here she asks this court to do something it may not do, that is,

-22-
No. 78294-1-I I 23

reweigh evidence.28 And, as discussed above, the court’s grounds for its major

modification were based primarily on its findings that M.Q. was harmed and at

risk of harm in Roberts’s home and that she had withheld M.Q. contrary to law.

They were not based on Quintanar’s relationship with M.Q.

Second, Roberts claims that the court overlooked Quintanar’s role in his

relationship with M.Q. Again, this court does not weigh evidence; it defers to the

trial court about the weight to give evidence.29 And the trial court did address

Quintanar’s role. For example, it said in 2017, “The father’s relationship needs to

improve and be fostered. And obviously he needs to play a role in that as well.”

Third, Roberts contends that the trial court impermissibly applied “a kind of

variation on the ‘friendly parent’ concept.” “Under the ‘friendly parent’ concept,

primary residential placement is awarded to the parent most likely to foster the

child’s relationship with the other parent.”3° A court abuses its discretion when it

employs this concept in making custody determinations.31 The court here did not

employ the friendly parent concept. Placement with Quintanar did not occur

because the trial court believed that he was most likely to foster M.Q.’s

relationship with the opposite parent.

28 Quinn, 153 Wn. App. at 717 (citing Thorndike, 54 Wn.2d at 572).

29 Quinn, 153 Wn. App. at 717 (citing Thorndike, 54 Wn.2d at 572).

30 In re Marriage of Lawrence, 105 Wn. App. 683, 687, 20 P.3d 972

(2001).

31 Lawrence, 105 Wn. App. at 687-88.

-23-
No. 78294-1 -I /24

Fourth, Roberts asserts that the trial court should not have changed

M.Q.’s primary residence because the court made no finding of domestic

violence in Roberts’s home. But, as stated above, the trial court made sufficient

findings supported by substantial evidence to warrant its decision to make a

major modification. Roberts cites no authority that requires the court to find

domestic violence in a child’s current primary residence before ordering a change

in primary residence.

Fifth, Roberts make several assertions about the court’s consideration of

Brown’s impact on M.Q. Roberts suggests the court was biased against Brown

“who receive[d] no credit for the years of love and care he gave M.Q.” She does

not identify anything beyond an adverse result to support her bias claim. And

she again asks this court to evaluate credibility and reweigh evidence. We

repeat that this is not an appellate court’s role. We note that the trial court’s

findings that Brown was “devoted to [M.Q.]” undercuts this claim.

Sixth, Roberts contends that the trial court should not have imposed

restrictions on M.Q.’s residential time with her based upon Brown’s conduct

because it made no findings establishing any connection between this conduct

and harm to M.Q. She asserts that Brown’s conflicts were generally “historical”

“and nearly all occurred outside M.Q.’s environment.” She asserts that M.Q.

“was thriving” in his mother’s home, so Brown could not be harming him.

-24-
No. 78294-1-I I 25

But Brown’s actions were not all historical, and the court identified

instances when Brown’s behavior directly impacted M.Q. For example, M.Q. was

with Brown, lowering his head and covering his ears, when Brown swore and

drove at a process server. And M.Q. reported to CPS that “Brown put dog feces

in his face.” Also, Brown interfered directly with M.Q.’s relationship with

Quintanar, encouraging him when he spied on Hazard. Roberts does not show

the absence of any connection between Brown’s behavior and harm to M.Q.

Seventh, Roberts asserts that the court abused its discretion because it

awarded Quintanar primary residence without finding her an unfit parent.

Roberts has advanced an incorrect requirement for modification. The statute

authorizes a parenting plan modification if the child’s living environment is

‘detrimental.”32 A determination that one parent’s living environment is

“detrimental” under RCW 26.09.260(2)(c) “does not necessarily hinge upon

finding a parent unfit.”33 Also, the court made findings sufficient to support major

modification under ROW 26.09.260(2)(d) because the court found Roberts in

contempt of court twice in three years.

We conclude that the trial court did not abuse its discretion when it

changed M.Q.’s primary residence from Roberts’s home to Quintanar’s home.

32 ROW 26.09.260(2)(c).

~ Velickoff, 95 Wn. App. at 353.

-25-
No.78294-1-1/26

Roberts Does Not Establish That the GAL Was Biased

Roberts contends that the GAL was biased and that her bias influenced

the judge and tainted the proceedings.34

Roberts bases her bias claim on the GAL’s two reports to the court, the

first in 2017 and the second in 2018. But she did not object to Fowler’s

continued service as GAL after the 2017 trial and interim decision. Generally, a

party may raise on appeal only those issues raised at the trial court.35 While an

appellant may raise an issue for the first time on appeal if it involves a manifest

error affecting a constitutional right,36 Roberts does not assert a manifest

constitutional error with respect to this issue.

Also, Roberts fails to establish that the GAL was biased. The court

appointed Fowler to be GAL in 2016. She submitted her first report in March

2017. After the trial in May, the court said in its final order, “Fowler’s report did

not provide much information in summarizing and explaining CPS and police

contacts with Ms. Roberts and Mr. Brown.” In addition there was limited

collateral contact information.” The court directed the GAL to

provide a report to the court about the parties compliance with the

court’s order, the status of the child’s relationship with his father,

and thorough information about whether Petitioner’s living situation

~ Contrary to Quintanar’s assertion, RCW 26.12.175(5) does not apply

here.

~ RAP 2.5(a).

36 RAP 2.5(a).

-26-
No.78294-1-1/27

is harmful to the child’s physical, mental, or emotional health, to

include thorough background checks and investigation of De Forest

Brown or anyone else living in the home, interviews of neighbors,

and other collateral sources.

It also directed the GAL to ‘provide additional information about

Respondent’s wife and her fitness to parent.”

The GAL submitted a second report in January 2018. She testified during

the 2018 hearing that she had followed the court’s instruction by focusing on

Brown’s background. She conducted a background check and talked to his

neighbors and members of his extended family. In her report, she did not

distinguish between legal actions he initiated, those directed at him, and those

ultimately dismissed. She also talked to Roberts’s coworker, counselors working

with M.Q. in Alaska and Washington, and Roberts’s family. She did not speak to

all potential collateral contacts.

Roberts’s primary basis for her bias claim is that the GAL narrowly

focused on investigating Brown. But the court’s June 2017 order directed the

GAL to focus on Brown. So Roberts’s assertion of bias directed at the GAL’s

focus fails.

Rather than show a pattern of bias demonstrated by the record, Roberts

baldly contends that it is “possible to infer” among other things “a closer

relationship to Quintanar’s local and experienced trial counsel” or “implicit bias

against Brown, an African American man living with a white woman in

-27-
No. 78294-1 -I I 28

unincorporated Snohomish County.” She contends that the GAL should have

brought more “‘balance’ to her investigation, given the simple reality that Brown,

because he is African-American, [was] likely to encounter racism in his

community and more likely to have interactions with law enforcement.” Trial

courts make decisions based on evidence. Roberts did not present testimony

from either Brown, persons who interacted with Brown, or neighbors to contradict

the information supplied by the GAL and witnesses who did testify. Inflammatory

accusations and character attacks are not a substitute for evidence.

Also, Roberts asserts that this case is similar to In re Marriage of Black.37

In Black, the Washington Supreme Court concluded that the trial court abused its

discretion because it considered the mother’s sexual orientation in making its

parenting decision.38 It determined that the court inappropriately relied upon the

GAL’s recommendations that were based on the mother’s sexuality.39 It also

determined that the GAL was biased because she made statements about the

mother’s sexuality, for example, referring to homosexuality as a “lifestyle

choice.”4° This case is not like Black. Roberts fails to point to any statements by

the GAL in this case showing explicit bias. She instead contends that the GAL

~~188 Wn.2d 114, 392 P.3d 1041 (2017).

38 Black, 188 Wn.2d at 127.

~ Black, 188 Wn.2d at 132-33.

40 Black, 188 Wn.2d at 133.

-28-
No.78294-1-1/29

ignored information. The trial court heard this argument and did not find it

persuasive. Neither do we.

Finally, Roberts cites to GALR 2, the court rule guiding GALs in fulfilling

their role. She contends that the GAL “conceded she ignored” the mandate

under the rule to maintain “objectivity and the appearance of fairness.”41 But she

misrepresents the GAL’s testimony. The GAL conceded that she did not make a

“balanced, full inquiry” but that she did not think additional investigation would

change her recommendation to the court. Failing to conduct a balanced, full

inquiry is not equivalent to failing to maintain “objectivity and the appearance of

fairness.” Roberts does not establish that the lack of a more robust investigation

by the GAL was the result of bias rather than other factors.42

Roberts has not established that the GAL was biased in her report or

testimony.

The Trial Court Did Not Violate Roberts’s Due Process

Roberts claims that the trial court denied her due process because the

court did not tell her that she had to separate from Brown to avoid a change in

M.Q.’s primary residential placement. This claim proceeds on a false premise—

that the court made its decision because Roberts did not separate from Brown.

41 GALR 2(b).

42 For example, the illness and death of her husband.

-29-
No. 78294-1-I / 30

This court reviews constitutional challenges de novo.43 The Fourteenth

Amendment to the United States Constitution guarantees procedural due

process, which requires that the State provide an individual notice and an

opportunity to be heard when it seeks to deprive a person of a protected

interest.44 A parent’s protected interests include the right to exert control over

and have custody of her child.45

Here, Roberts had notice and an opportunity to be heard before the trial

court changed M.Q.’s primary custody. The court reserved its final decision on

the major modification. It made findings sufficient to support a major

modification, and it said explicitly “that things need to change.” It stated that

Roberts needed “to do better.” And it said, “I certainly have a lot of concerns

about what’s going on” and identified “just way too may red flags with Mr. Brown

to be ignored.”

The trial court did not change M.Q.’s primary residence because Roberts

violated an “unstated condition” that she separate from Brown. The court found

grounds for a major modification in 2017 based on findings of conflict in M.Q.’s

environment and the contempt orders against Roberts. The trial court’s 2018

~ In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015)

(citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)).

~ Mathews v. Eldridqe, 424 U.S. 319, 348, 96 5. Ct. 893, 47 L. Ed. 2d 18

(1976).

~ In re Marriage of Chandola, 180 Wn.2d 632, 646, 327 P.3d 644 (2014)

(quoting In re Custody of Smith, 137 Wn.2d 1, 14-15, 969 P.2d 21(1998)).

-30-
No. 78294-1-I / 31

decision to change M.Q.’s primary residence was based on its 2017 findings, as

well as additional evidence that M.Q.’s environment had worsened and that

Brown and Roberts continued to actively interfere with M.Q.’s relationship with

Quintanar.

The trial court did not violate Roberts’s right to procedural due process

when it implemented the modified parenting plan.

Roberts compares this case to Halsted v. Sallee.46 In Halsted, the trial

court violated a father’s right to due process by restricting his right to travel

without giving him notice it was contemplating doing so.47 In contrast, here,

Roberts had notice of the court’s concern about M.Q.’s environment and the

potential for a major modification. This case is also unlike In re Marriage of

Ebbighausen,48 where the father was not present when the court made custody

determinations. Roberts was present and testified.

Roberts also relies on Watson, where the trial court modified the parenting

plan based on grounds not anticipated by the parties.49 This case is not like

Watson. Here, the trial court based its decision on statutory grounds raised by

Quintanar in his counterpetition for a major modification.

4631 Wn. App. 193, 639 P.2d 877 (1982).

~ Halsted, 31 Wn. App. at 197.

4842 Wn. App. 99, 102, 103-04, 708 P.2d 1220 (1985).

49Watson, 132 Wn.App. at 233.

-31 -
No. 78294-1 -l I 32

Challenges to Evidentiary Decisions

Roberts challenges several evidentiary decisions by the court.

A. Application of the Missing Witness Inference

Roberts asserts that the trial court erred in applying the missing witness

inference to Brown when he failed to testify.

Under the missing witness doctrine, “where evidence which would

properly be part of a case is within the control of the party whose interest it would

naturally be to produce it, and, . . . he fails to do so—the [fact finder] may draw

an inference that it would be unfavorable to him.”5°

A court may apply the missing witness inference to a party if the witness

was competent and “peculiarly available’ to one of the parties.”51 This means

that

there must have been such a community of interest between the

party and the witness, or the party must have so superior an

opportunity for knowledge of a witness, as in ordinary experience

would have made it reasonably probable that the witness would

have been called to testify for such party except for the fact that his

testimony would have been damaging.[52]

~° State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991) (first

alteration in original) (quoting State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185

(1968)), overruled on other grounds by State v. Abdulle, 174 Wn.2d 411, 275

P.3d 1113 (2012).

51 Davis, 73 Wn.2d at 276.

52 Davis, 73 Wn.2d at 277.

-32-
No. 78294-1-I /33

The witness must be essential to the case such that his testimony would be not

“merely cumulative, but important and necessary.”53

After the trial in 2017, the court described its missing witness analysis

about Brown and Hazard:

Mr. Brown did not testify as a witness in this case. The Court finds

the explanation provided by Ms. Roberts that she wanted to focus

on [M.Q.] and not Mr. Brown was unsatisfactory. The Court has

found that Mr. Brown is a significant influence in the child’s life.

From all indications, Mr. Brown is competent to testify as a witness.

In this case, there is a very strong community of interest between

Ms. Roberts and her boyfriend/fiancée [sicj, Mr. Brown. There is no

such community of interest with Mr. Quintanar, and in fact, the two

are not on good terms at all. Therefore, Mr. Brown was “peculiarly

available” to Ms. Roberts to be able to be called to testify. The

court infers that Ms. Roberts thought that calling Mr. Brown as a

witness would have been damaging to her case.

Mr. Quintanar’s wife, Joni Hazard, also did not testify. There was

testimony that she was in Alaska for the grand opening of a

restaurant at which she recently obtained employment.

Additionally, she did not seem to be central to this case, contrary to

Mr. Brown. The Court does not see the two missing witnesses in

the same way, and does not find that the missing witness inference

is appropriate with regard to Joni Hazard.

In 2018, following three days of hearings, the court decided to apply the

missing witness inference again, It stated, “Mr. Brown again did not testify.

Again, the court has no opportunity to assess Mr. Brown except as has been

~ Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 347, 109 P.2d 542 (1941)

(quoting 10 RULING CASE LAW Evidence § 33 (1915)).

-33-
No. 78294-I-I / 34

testified about him. The court infers that Ms. Roberts thought that calling Mr.

Brown as a witness would have been damaging to her case.”

In 2017, the court explicitly identified the conditions necessary for applying

the missing witness inference to Brown. Roberts fails to point to evidence that

these conditions changed between 2017 and 2018. So the court did not abuse

its discretion by making the missing witness inference in 2017 or 2018.

Roberts contends that the court ‘fails ever to identify any missing evidence

the missing witness might possess.” She does not cite to any authority that

requires a court to identify exactly what missing evidence the missing witness

might produce. “Where no authorities are cited in support of a proposition, the

court is not required to search out authorities, but may assume that counsel, after

diligent search, has found none.”54 Roberts instead cites to State v.

Dickamore.55 The decision in Dickamore was not based on a failure to identify

missing evidence. Instead, in Dickamore, the trial court properly refused to give

a requested missing witness instruction because the testimony of the uncalled

witness was cumulative of another witness’s testimony.56 Dickamore does not

help her.

~ State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting

Detteer v. Seattle Post-lntelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).

~ 22 Wn. App. 851, 592 P.2d 681 (1979).

56 Dickamore, 22 Wn. App. at 856-57.
No. 78294-1-I I 35

B. Weight Given To Expert Opinions

Roberts claims that the trial court erred because it gave no weight to

expert opinions warning of harm to M.Q. through a change in his primary

residence.57 Roberts asks this court to do what it expressly does not do—weigh

evidence.58 This claim has no merit.

Courts routinely instruct jurors that they are not required to accept an

expert’s opinion.59 The same is true for a judge hearing a bench trial.

C. Consideration of Bartlett’s Letter

Roberts asserts that the court should have considered a letter submitted

by M.Q.’s therapist in Washington that he provided after he testified.6° This court

reviews a trial court’s evidentiary decisions for abuse of discretion.61 A trial court

abuses its discretion when it makes a manifestly unreasonable decision or bases

its decision on untenable grounds.62

~ Roberts assigns error based on this claim but does not address this

challenge in the body of her brief.

58 Quinn, 153 Wn. App. at 717 (citing Thorndike, 54 Wn.2d at 572).

~ 6 WASHINGTON PRAcTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CIvIL 2.10, at 55(7th ed. 2019).

60 Roberts contends in a footnote that “the court refused to consider

[Bartlett’s update], despite having expressly ordered Bartlett to submit a report.”

Bartlett’s e-mail was not a report submitted to the court, so this argument does

not help her.

61 Hollins v. Zbaraschuk, 200 Wn. App. 578, 580, 402 P.3d 907 (2017)

(citing Hoskins v. Reich, 142 Wn. App. 557, 566, 174 P.3d 1250 (2008)), review

denied, 189 Wn.2d 1042 (2018).

62 In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009).

-35-
No. 78294-1 -l /36

Bartlett e-mailed a letter to the trial judge’s law clerk the evening before

the last day of the review hearing and provided copies to counsel. After

Quintanar’s counsel completed his closing argument, Roberts’s counsel referred

to the letter in her closing argument. The court interrupted her to express its

concerns about the letter. Roberts’s counsel then asked, for the first time, that it

be admitted as evidence. Opposing counsel objected. The trial court did not rule

on the letter’s admission, so it did not become part of the record.

Roberts notes the trial court’s refusal to consider the letter in a footnote

but provides no argument or citation to authority supporting her complaint. So

we decline to consider it.

CONCLUSION

We affirm. Substantial evidence supports the trial court’s findings. The

trial court had authority to reserve its decision about modifying M.Q.’s primary

residence. Substantial evidence supports the trial court’s decision to impose a

major modification of the parenting plan. And Roberts does not show that the

GAL was biased in her recommendations.

The court provided Roberts with notice that it was considering changing

M.Q.’s primary residence because of its concerns about her home environment,

particularly with respect to Brown’s presence. So she does not demonstrate that

-36-
No. 78294-1 -l I 37

it denied her procedural due process. And she does not establish that the trial

court abused its discretion when it made several evidentiary decisions.

WE CONCUR:

-37-