IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON

In the Matterofthe Marriage of 

### ) No. 78294-1-I CHRISTINA MARIAQUINTANAR, 

### ) 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### ) UNPUBLISHED OPINION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 assertsthatthe courtexceeded its authority, abused its discretion, made incorrect evidence decisions, and violated her right of procedural due processwhen 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. Thetrial court had authorityto retainjurisdiction forayearto reviewthe efficacy ofits initial decision and, within that year, to implement a major modification. Because the court found grounds fora major modification and appropriately balanced the impact ofNo.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 notviolate Roberts’s rightto procedural due process. She also fails to establish thatthe GALwas biased. Weaffirm. FACTS1 Gregorio Quintanar and Christina Roberts divorced in 2009. They had
one child, three-year-old M.Q. Atthattime, they agreed to afinal 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 afterthe 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 onlyas adescription ofthetrial court’s actions. -2-No. 78294-1-I /3

Hazard, moved toAlaska, he and Robertswere unabletoworktogetherto parent M.Q. Quintanarand Hazard married in 2016. In 2017, Quintanar retired from the Army. He accepted acivilianjobwith anAlaskan communications company. In November2014, Robertsfiled a petition requesting a minormodification in the parenting plan under ROW 26.09.260(5)(a) and (5)(b). She alleged that Quintanar’s movetoAlaska made itdifficulttofollowthe existing plan. Quintanar did notobject but reserved the rightto 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 May2015, the courtagain found Roberts in contemptforfailing to make M.Q. available to Quintanar during his residential time. In August 2015, Quintanar amended his answerto Roberts’s petition to include a counterpetition requesting a major modification ofthe parenting plan under ROW26.09.260(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 causeforatrial on Quintanar’s major modification request.

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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 residenceto Roberts. In early March 2016, Quintanar asked the court to modify the temporary parenting plan and appoint a GALfor M.Q. The court modified the plan to allow video phone calls, discharged Bemis as GAL, and appointed Margaret Fowleras GAL. The courtalso reinstated Roberts’sstricken pleadings. The court held a trial in May 2017. Neither Brown nor Hazard testified. The courtapplied the missing witness ruleto Brown because he did nottestify. 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 [RCW26.09].191 factorstothe 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 inthese 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 sincethe divorce decree and parenting plan entered in 2009, thata substantial change has occurred in the circumstances ofthe 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 RCW26.09.191 that did not exist in 2009, thatshe 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, particularlywith [M.Q.J present, is detrimental to his mental and/oremotional health. The Court is notconvinced this detrimental behavior has ceased on the partofMs. Robertsand Mr. Brown. Nevertheless, the Court is not, atthis 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 whetherthe child’s living situation with petitioner is so harmful to his physical, mental, or emotional health that it would be betterforhim to movetoAlaskawith hisfather. 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 herto “[ajttend at least 10 hours of parenting classes focused on parenting children of divorce and the emotional impactofconflict between divorced parents on a child” and “to attend counseling sessions with” M.Q.’s Washington-based therapist,

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Charles Bartlett, and M.Q. Itstated that itwould transferprimary residential time to Quintanarif Robertsfailed tofollowthesetreatment 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 retainsjurisdiction for oneyearto reviewthe efficacyofthis 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 beforethatdate. The court directed the guardian ad litem to report to the court about the parties’ compliancewith its order, the status of M.Q.’s relationship with hisfather, and “thorough information aboutwhether Petitioner’s living situation is harmful to the child’s physical, mental, oremotional 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 fitnessto parent. Neitherpartyappealed. 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

2Thetrial dateswere January 12 and February 12 and 15, 2018. -6-No.78294-1-1/7

missing witness doctrine to Brown and inferred that “Robertsthoughtthat calling Mr. Brown as awitnesswould have been damaging to hercase.” The court incorporated its June 23, 2017, findings of fact and entered additional findings. It reiterated “thatthe 2017 Final Parenting Plan was ‘subject to reviewand changewithout additional findings ofadequate causefor up to one year.” It stated that it found, “based on the evidence presented at trial on January 12, February 12 and 15, 2018, thatthere has been a substantial change in circumstances since entry of the June 23, 2017 Final Parenting Plan warranting further modification ofthe 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 RCW26.09.191(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 determinesthat itis no longerbeneficial.” 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 herprocedural due process rights orabuse its discretion in its evidentiary
orfinal decisions, we affirm.

Substantial Evidence Sugportsthe Findings Roberts assigns errortovariousfindings offacts made bythetrial courton June23, 2017, and March 16, 2018.~ This court reviews the record to decide ifsubstantial evidence supports a trial court’s findings of fact.4 Substantial evidence exists when the record includes enough evidence to persuade afair-minded, rational person ofthe truth of the finding.5 “Appellate courts do not hear or weigh evidence, find facts, or substitutetheiropinionsforthose ofthetrier-of-fact.”6 An appellatecourtaccepts unchallenged findings astrue 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 nonhighlightedfindings in the bodyofherbrief.

~ 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, 106Wn.2d 212, 220, 721 P.2d 918 (1986)). 6 Quinn v. Cherry LaneAuto Plaza, Inc., 153Wn. 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, 175Wn. App. at723. -8-No. 78294-1-1/9

Brown was more importantthan Quintanar, and that Brown ‘has caused serious damage”to M.Q.’s relationshipwith Quintanar. The court made unchallenged findings describing Roberts withholding M.Q. from Quintanarand interfering with their relationship. Forexample, itfound 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 courtfound her in contemptfordisobeying the parenting schedule more than once in three years.” It summarized testimonythat described
an incidentwhen Roberts swore atQuintanarin frontofM.Q. The court also made unchallenged findings describing Brown actively interfering in the relationship between Quintanarand M.Q. Forexample, Brown encouraged {M.Q.) to spy on Mr. Quintanarand 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 carand “MerryChristmas” in responseto a text containing a photograph of Ms. Hazard and her former husband. Finally, the court made unchallenged findings describing M.Q. as distant from hisfatheraftertheywere separatedforlong periods oftime and detailing his expression ofnegativefeelings against hisfather. Forexample, After father’s day in June 2014, Mr. Quintanar did not see [M.Q.] until spring break 2015. The Courtfinds that Mr. Quintanar called and left messages attempting to contact [M.Q.] through Ms. Roberts, but these calls were never returned. Mr. Quintanarwas nextableto see [M.Q.] aftera courtorder, buttheir 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 testimonyand [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 OKwith 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 bewith his mom and Mr. Brown.” So substantial evidence supports the findings that Roberts and Brown negatively interferedwith M.Q.’s relationshipwith 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 choiceto livewith Brown created a harmful environment forM.Q. She challengesthefinding 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. Forexample, itfound that Roberts swore atQuintanar in frontof M.Q. The court

8 This finding refers to exhibit 129, the notebook, but the parties did not includethis 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 putdog feces in hisface.” 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 mistreatmentofM.Q. and thatshewas “[i]nvolved in harmful relationships.” The court’s unchallenged findings provide examples ofhow Brown was an inappropriate father figure and engaged in “harmful conduct” in front of M.Q. Thesefindings also demonstratethat M.Q. would do betterwith less conflict. For example, one unchallenged finding states that Brown had a “history of Domestic Violence, [had] recentlyassaulted anotherperson, [and] had multiple petitionsfor anti-harassment filed against him by various different individuals in 2012 and 2013.” In anotherunchallenged finding, the courtstates, [Brown] pulled outofthe garage in an SUVtype vehicle believed to belong to Christina Roberts with [M.Q.] sitting in the front seat. As [the process server] waswalking backto hertruck, 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 thatshejust 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 ofspeed, which she estimated to be about 45 miles per hour. [She] thought Mr. Brown was going to run herdown and got in front —11—No. 78294-1-I / 12
ofhertruckto 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 contactwith thefatherfora prolonged period oftime 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 byvarious 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 courttwice in the pastthreeyears, and thatthe level ofconflictshe -12-No. 78294-1-I/13
and Mr. Brown engage in, particularly with [M.Q.] present, is detrimental to his mental and/oremotional 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 putdog feces in hisface. 3. Petition for Anti-Harassment Order. Mr. Brown has had another petition for an anti-harassment order filed against him and an ordergranted. 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 hasfiled such a petition against Mr. Brown. 5. Unrelated to Mr. Quintanar. The person now filing the petition foran anti-harassment order against Mr. Brown is in noway related to Mr. Quintanar.

11. Spying. Mr. Brown has encouraged {M.Q.] to spyon Mr. Quintanarand hiswife. 12. Affirmation of Spying Behavior. Mr. Brown affirmed [M.Q.’s] spying behaviors by sending reply texts which stated “goodjob” as related to a photograph ofa package of cigarettes in Ms. Hazard’s car and “Merry Christmas” in response to a text containing a photograph of Ms. Hazard and herformerhusband.[9]

~ Some ofthese 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 referto newevents, such as the new petition foran antiharassmentorderagainst Brown. -13-No. 78294-1-I /14

In another unchallenged finding, the court states, “[T] he child’s situation living primarilywith petitioner hasworsened” 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 residencewas 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.

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Roberts testified thatthe conflict in residency started when Quintanar “wanted to revert backtothe2009 schedule.” Sosubstantial evidence supportsthisfinding. 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.” Sosubstantial evidence supportsthisfinding. 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 neighborabout 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 GALthatthe nextday, the roofofthe lean-towas 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 ofthis incident, the Courtfinds that the potential for emotional and physical harm is high.” Roberts challenges thefollowing languagefrom the court’s otherwise unchallenged finding: On one occasion, Mr. Brown was arrested afterthe 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 knewthey 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 ofthe finding, substantial evidence supports the trial court’sfinal sentence stating thatthe potential forharm 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 conflictatQuintanar’s house and the stress caused by relocating M.Q. abruptly in December2015. And she claimsthe contested findings cannot be “squared with the court’s finding”that Roberts is a good motherand 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 leftto the trieroffact and are notsubjectto review.11 We concludethatsubstantial evidence supportsthe challenged findings.

The Court Did Not Exceed ItsAuthority Roberts assertsthatthetrial courtexceeded its authoritywhen it reopened and reweighed evidence at a review hearing after it had alreadyentered findings and orders on the petitions to modify residence and the parenting plan following
afull evidentiary hearing.

10 Quinn, 153Wn. App. at717 (citing Thorndike, 54Wn.2d at572).

~ Statev. Camarillo, 115Wn.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 Theirequitable powers give them the authorityto deferafinal decision
on a parenting plan under RCW26.09.260 fora limited period oftime.14 This is truewhethera court labelsthe parenting plan temporary orpermanent.15 When it adopted the 2017 parenting plan, the court expressly deferred its final decision abouta majormodification 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 whetherthat change is, in facttransferto Alaska.” It stated that the parenting plan was “subject to review and change without additional findings ofadequate causefor up to one year” afterJune 23, 2017. It scheduled itsfirst review hearingforJanuary 12, 2018. The court had authority to retain jurisdiction, particularly because it expressed its intentto reviewthe efficacyofits2017 order.

12 In re Marriage ofSchneider, 173Wn.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 ofAdler, 131 Wn. App. 717, 725, 129 P.3d 293 (2006); In re Marriage ofTrue, 104Wn. App. 291, 298, 16 P.3d 646 (2000). 15 Possinger, 105Wn. App. at337. -17-No. 78294-1-I /18

Roberts makes additional assertions to support her argument. None of these claims have merit. First, Roberts contendsthatthe 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 orderthatthere 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 its2017findings. Second, Roberts asserts that the court made a finding in its 2017 order that insufficient evidence” supported a determination thatthe benefitof removing M.Q. from her home outweighed the detriment of relocating him and so it could notfind substantial evidence forthis finding in 2018. But Roberts misrepresents whatthe courtsaid in its 2017 order. Ratherthan make afinding on whetherthe 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 adetermination thata majormodificationwas in M.Q.’s best interest based
on its2017findings and additional evidence. We concludethatthetrial 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 ofWatson,16wherethe 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 authorityto modifythe parenting plan ororder 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. TheTrial Court Did NotAbuse Its Discretion ByChanging M.Q.’s Primary Residence Roberts contends that the trial court abused its discretion by imposing a majormodification and awarding Quintanarprimary 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 132Wn. App. 222, 231-33, 130 P.3d 915 (2006). 17Watson, 132Wn. App. at233, 238-39. 18 In re Marriage ofZigler, 154Wn. 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 meetthe requirements ofthe correctstandard.[22~ Atrial court is required to “determine[

### J and allocate[] the parties’ parental responsibilities” on the basis ofwhat itfinds is in “the best interest ofthe child.”23 The best interest ofa child is served by stability unless a change is “required to protectthe child from physical, mental, oremotional 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 ofMcDole, 122Wn.2d 604, 610, 859 P.2d 1239 (1993). 20 McDole, 122Wn.2d at610; 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 Statev. Rundguist, 79Wn. App. 786, 793, 905 P.2d 922 (1995)). 22 Littlefield, 133Wn.2d at47 (citing Rundguist, 79Wn. App. at793). 23 RCW26.09.002. 24 RCW26.09.002. -20-No. 78294-1-I /21

authority to modifythe 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 concludesthat 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 ofthe child and is necessary to servethe best interests ofthe child.t25~ Ifa courtfinds a substantial change in circumstances has occurred, it may changethe residential schedule ifitdeterminesthat

(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 ofa changetothe child; or (d) The court hasfound the nonmoving parent in contemptof court at least twice within three years because the parentfailed 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”tothatchild.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 oftwo contempt orders from the court, she

25 RCW26.09.260(1). 26 RCW26.09.260(2). 27 In re Marriage ofVelickoff, 95Wn. App. 346, 357, 968 P.2d 20 (1998). -21

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withheld M.Q. from Quintanar in 2014, and she entered into a relationship with Brown. Thesefindingssatisfy RCW26.09.260(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 explicitlyweighed 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. Thesefindingssatisfied RCW26.09.260(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 RCW26.09.260(2)(d). So the court had sufficient grounds and conducted the proper balancing analysiswhen itdecided to change M.Q.’s primary residence, Itdid notabuse its discretion. Roberts makesseveral claimsto support herargument. 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 I23

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. Theywere not based on Quintanar’s relationship with M.Q. Second, Roberts claims that the court overlooked Quintanar’s role in his relationshipwith M.Q. Again, this courtdoes notweigh evidence; itdefers to the trial court about the weight to give evidence.29 And the trial court did address Quintanar’s role. Forexample, itsaid in 2017, “Thefather’s relationship needsto improve and befostered. And obviouslyhe needsto playa role in thataswell.” Third, Roberts contendsthatthetrial 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 fosterthe child’s relationship with the other parent.”3° A court abuses its discretion when it employsthis concept in making custodydeterminations.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 relationshipwith the opposite parent.

28 Quinn, 153Wn. App. at717 (citing Thorndike, 54Wn.2d at572). 29 Quinn, 153Wn. App. at717 (citing Thorndike, 54Wn.2d at572). 30 In re Marriage of Lawrence, 105 Wn. App. 683, 687, 20 P.3d 972 (2001).31 Lawrence, 105Wn. App. at687-88. -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 domesticviolence 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 courtwas biased against Brown “who receive[d] no creditforthe years oflove 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 findingsthat Brown was “devoted to [M.Q.]” undercutsthis 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. “wasthriving” in his mother’s home, so Brown could not be harming him. -24-No. 78294-1-I I25

But Brown’s actions were not all historical, and the court identified instanceswhen Brown’s behaviordirectly impacted M.Q. Forexample, 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 ofanyconnection between Brown’s behaviorand 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 madefindings sufficientto support major modification under ROW 26.09.260(2)(d) because the court found Roberts in contemptofcourttwice in threeyears. We conclude that the trial court did not abuse its discretion when it changed M.Q.’s primary residencefrom Roberts’s hometo Quintanar’s home.

32 ROW26.09.260(2)(c).

~Velickoff, 95Wn. App. at353.-25-No.78294-1-1/26

Roberts Does Not Establish Thatthe GALWas Biased Roberts contends that the GAL was biased and that her bias influenced thejudge 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 afterthe 2017 trial and interim decision. Generally, a party may raise on appeal onlythose issues raised atthe trial court.35 While an appellant may raise an issue forthe first time on appeal if it involves a manifest
error affecting a constitutional right,36 Roberts does not assert a manifest constitutional errorwith respecttothis 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. Afterthe 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 courtdirected the GALto provide a reportto the court about the parties compliance with the court’s order, the status of the child’s relationship with his father, and thorough information aboutwhether 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 includethorough background checks and investigation of De Forest Brown or anyone else living in the home, interviews of neighbors, and othercollateral sources. It also directed the GAL to ‘provide additional information about Respondent’swife and herfitnessto parent.” The GAL submitted a second report in January2018. Shetestified 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 alsotalked to Roberts’s coworker, counselors working with M.Q. in Alaska and Washington, and Roberts’sfamily. She did notspeakto 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 focusfails. Ratherthan 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 I28

unincorporated Snohomish County.” She contends that the GAL should have brought more “‘balance’ to her investigation, given the simple realitythat 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, personswho interacted with Brown, or neighbors to contradict the information supplied bythe GAL and witnesseswho did testify. Inflammatory accusations and characterattacks are notasubstituteforevidence. Also, Roberts asserts thatthis case is similarto In re Marriage of Black.37 In Black, theWashington Supreme Court concluded thatthetrial courtabused its discretion because it considered the mother’s sexual orientation in making its parenting decision.38 It determined thatthe 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. Robertsfailsto pointto anystatements by the GAL in this case showing explicit bias. She instead contends that the GAL

~~188Wn.2d 114, 392 P.3d 1041 (2017). 38 Black, 188Wn.2d at 127.

~ Black, 188Wn.2d at 132-33. 40 Black, 188Wn.2d at 133. -28-No.78294-1-1/29

ignored information. The trial court heard this argument and did not find it persuasive. Neitherdowe. 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 underthe ruleto maintain “objectivityand the appearance offairness.”41 Butshe misrepresentsthe GAL’s testimony. The GAL conceded thatshe 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 notestablish thatthe lackofa more robust investigation bythe GALwasthe resultofbias ratherthan otherfactors.42 Roberts has not established that the GAL was biased in her report or testimony. TheTrial Court Did NotViolate Roberts’s Due Process Roberts claims that the trial court denied her due process because the court did not tell herthat she had to separate from Brown to avoid a change in M.Q.’s primary residential placement. This claim proceeds on afalse premise— thatthe courtmade its decision because Roberts did notseparatefrom Brown.

41 GALR 2(b). 42 Forexample, the illness and death ofherhusband. -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 custodyofherchild.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 aboutwhat’s going on” and identified “justwaytoo 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 courtfound 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 CityofRedmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)).

~ Mathewsv. 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 CustodyofSmith, 137Wn.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 fatherwas not present when the court made custody determinations. Robertswas presentand testified. Roberts also relies on Watson, wherethetrial 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 Quintanarin his counterpetition fora majormodification.

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

~ Halsted, 31 Wn. App. at 197. 4842Wn. App. 99, 102, 103-04, 708 P.2d 1220 (1985). 49Watson, 132Wn.App. at233.-31

-No. 78294-1 -l I 32
Challengesto Evidentiary Decisions Roberts challenges several evidentiarydecisions bythe court. A. Application ofthe Missing Witness Inference Roberts asserts that the trial court erred in applying the missing witness inferenceto Brown when hefailed totestify. Under the missing witness doctrine, “where evidence which would properly be partofa case iswithin the control ofthe partywhose interest itwould naturally be to produce it, and,

. . . he fails to do so—the [factfinder] may draw
an inferencethat itwould be unfavorableto him.”5° A court may applythe missing witness inference to a party ifthe 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 totestifyforsuch partyexceptforthefactthat his testimonywould 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, 73Wn.2d at276. 52 Davis, 73Wn.2d at277. -32-No. 78294-1-I /33

The witness must be essential to the case such that his testimony would be not “merelycumulative, but important and necessary.”53 After the trial in 2017, the court described its missing witness analysis about Brown and Hazard: Mr. Brown did nottestify as awitness in this case. The Courtfinds 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 competenttotestifyas awitness. In this case, there is a very strong community of interest between Ms. Roberts and herboyfriend/fiancée [sicj, Mr. Brown. There is no such community of interestwith 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 witnesswould have been damaging to hercase. 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 notseem to be central to this case, contraryto Mr. Brown. The Court does not see the two missing witnesses in the sameway, and does notfind thatthe missing witness inference is appropriatewith regard toJoni 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

~ Wrightv. SafewayStores, Inc., 7Wn.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 awitnesswould have been damaging to hercase.” In 2017, the courtexplicitly identified the conditions necessaryforapplying 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 or2018. Roberts contendsthatthe court ‘fails everto identifyany 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 outauthorities, but mayassumethatcounsel, 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.

~ Statev. Logan, 102Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting Detteerv. Seattle Post-lntelligencer, 60Wn.2d 122, 126, 372 P.2d 193 (1962)).

~ 22Wn. App. 851, 592 P.2d 681 (1979). 56 Dickamore, 22Wn. App. at856-57.No. 78294-1-I I 35

B. WeightGiven To ExpertOpinions 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 courtto do what it expressly does notdo—weigh evidence.58 This claim has no merit. Courts routinely instruct jurors that they are not required to accept an expert’s opinion.59 Thesame istrueforajudge hearing a bench trial. C. Consideration ofBartlett’sLetter Roberts asserts that the court should have considered a letter submitted by M.Q.’stherapist in Washington that he provided after he testified.6° This court reviews atrial court’s evidentiarydecisionsforabuse ofdiscretion.61 Atrial court abuses its discretion when it makes a manifestly unreasonable decision or bases its decision on untenablegrounds.62

~ Roberts assigns error based on this claim but does not address this challenge in the bodyofherbrief. 58 Quinn, 153Wn. App. at717 (citing Thorndike, 54Wn.2d at572).

~ 6 WASHINGTON PRAcTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIvIL2.10, at55(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, 189Wn.2d 1042 (2018). 62 In re Det. ofDuncan, 167Wn.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 aboutthe letter. Roberts’s counsel then asked, forthefirsttime, that it be admitted as evidence. Opposing counsel objected. Thetrial courtdid not rule
on the letter’s admission, so itdid notbecome partofthe 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 declineto considerit. 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 GALwas 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, particularlywith respectto Brown’s presence. So she does notdemonstratethat

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

it denied her procedural due process. And she does not establish that the trial courtabused its discretionwhen itmade several evidentiarydecisions.

WE CONCUR:

-37-