IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Marriage of: No. 68424-8-1 Co

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NEHA WAS CHANDOLA, DIVISION ONE

Respondent,

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MANJUL VARN CHANDOLA, i UNPUBLISHED

Appellant. i FILED: Mav 13. 2013

Cox, J. — Primarily at issue in this appeal is the trial court's discretionary

authority to impose restrictions in the parenting plan between Manjul Varn

Chandola (Varn) and NehaVyas Chandola (Neha).1 The trial court'sfindings of

fact are supported by substantial evidence and support the conclusions of law

that restrictions are proper. Moreover, there is no evidence that the trial court

based its decision on an improper basis. Finally, there is no showing of any

denial of either due process or equal protection. We affirm.

Varn and Neha were married in 1998. They lived with Varn's parents in

Arizona until they moved to the Seattle area in 2002. They are both attorneys.

1We adopt the naming conventions of the partiesfor clarity.
No. 68424-8-1/2

They have one young daughter, P.R.C., who was born in November 2008.

Both sets of her grandparents lived with the family at their house in Kent during

different periods of time and helped care for her.

In February 2011, Neha commenced this dissolution proceeding. Neha

told Varn that P.R.C. complained of vaginal pain and that Neha was concerned

about the possibility of sexual abuse. Varn agreed to Neha's request for a

temporary order requiring supervision during his visits.

A court-appointed parenting evaluator, Dr. Jennifer Wheeler, concluded

that there was insufficient evidence to indicate that Varn engaged in behavior

that would be consistent with sexual abuse. The supervised visitation was lifted

in December 2011, after mediation.

A seven-day bench trial took place in 2012. The central issue at trial was

the residential schedule and requested restrictions in the parenting plan. A

number of witnesses testified, including the parties, family members, friends of

the family, and P.R.C.'s doctor. Two parenting evaluators, one on behalf of each

party, also testified.

Based on the evidence and controlling law, the trial court ordered

restrictions and a residential schedule with three different stages to promote the

best interests of the child. The first stage consists of two visits with Varn every

week with one of those visits being an overnight visit every week. In the second

and third stages, P.R.C.'s time with Varn will increase, if Varn meets certain

conditions.

Varn appeals.
No. 68424-8-1/3

PARENTING PLAN

Varn argues that the trial court's restrictions in the parenting plan were not

supported by the findings. We disagree.

An appellate court will not retry the facts on appeal and will accept the trial

court's findings of fact as verities ifthey are supported by substantial evidence in

the record.2 "Substantial evidence is thatwhich issufficient to persuade a fairminded person of the truth of the matter asserted."3 This court does not review

the trial court's credibility determinations, nor does it weigh conflicting evidence.4

Decisions concerning the provisions of a parenting plan are reviewed for

abuse of discretion.5 "Atrial court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds or untenable reasons."6

"Acourt'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 ifthe 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."7

* In re Marriage of Thomas. 63 Wn. App. 658, 660, 821 P.2d 1227 (1991).

3In re Marriage of Katare. 175Wn.2d 23, 35, 283 P.3d 546 (2012), certdenied. 133 S. Ct. 889, 184 L Ed. 2d 661 (2013).

4In re Marriage of Rich. 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).

5 In re Marriage of Littlefield. 133Wn.2d 39, 46, 940 P.2d 1362 (1997).

6jd, at 46-47.

7 Id. at 47.
No. 68424-8-1/4

This court's review of whether the trial court's conclusions of law flow from

its findings is de novo.8

Adverse Effect on the Child's Best Interest

Varn argues that there were insufficient findings and no substantial

evidence to justify restrictions under RCW 26.09.191 (3)(g). We disagree.

RCW 26.09.191 (3)(g) is a discretionary provision that permits a trial court

to limit the terms of a parenting plan.9 This discretionary authority ofthe court is

conditioned on the existence of specific factors or conduct that the court

expressly finds adverse to the best interests ofthe child.10 "Imposing such

restrictions 'require[s] more than the normal... hardships which predictably

result from a dissolution of marriage.'"11

Here, the trial court found that Neha had established by a preponderance

of the evidence that restrictions under RCW 26.09.191 (3)(g) should be included

in the parenting plan. More specifically, the court made the following finding,

which is supported by substantial evidence:

The court finds that the father's parenting history has had an

adverse effect on the child's best interests pursuant to RCW

26.09.191 (3)(g). See Memorandum [Findings on Trial entered this

date and incorporated by reference.1121

8Watson v. Dep't of Labor&Indus.. 133 Wn. App. 903, 909,138 P.3d 177

(2006).

9 Katare. 175 Wn.2d at 36.

10 Id,

11 jd, (alteration in original) (quoting Littlefield. 133Wn.2d at 55).

12 Clerk's Papers at 80.
No. 68424-8-1/5

The Memorandum Findings on Trial, which the trial court expressly

incorporated into the above, identified the factors and conduct of Varn that

the court found adverse to the best interests of the child:

Prior to separation the father consistently engaged in a

pattern of interaction with [P.R.C] which while loving, caring,

affectionate, enriching in an entertainment sense, and nurturing in

some respects, nonetheless lacked, in concerning degree,

objectivity with respect to her heaithy development. The

father was unwilling or unable to establish boundaries,

routines, schedules, and structure. He discouraged

exploration and independence. Varn may best be described

prior to separation as a doting father but ineffective parent. This is

not an entirely unusual situation but he also actively undermined

the mother's efforts to provide these essential parenting

components resulting in an imbalance that appears to have

had adverse consequences for the child. The court is unable to

conclude that it was the father's design to undermine the mother

but the consequences for the child are the same. It is telling that

subsequent to separation the child's behavior repertoire increased

dramatically .... As more than one lay witness observed since

separation "[P.R.C] is a changed child, more outgoing, interactive . .,[13]

On appeal, Varn assigns error to five of the trial court's findings regarding

his parenting history. But, he only discusses two of these findings when he

challenges the trial court's determination that he was an "ineffective parent."

Thus, we need only address whether these two findings are supported by

substantial evidence.

First, the trial court found that Varn "discouraged [P.R.C.'s] exploration

and independence." A family friend, Rahul Gupta, testified that it appeared that

Varn did not want P.R.C. to explore and engage with other children and adults.

13 Id. at 92-93 (emphasis added).
No. 68424-8-1/6

A neighbor, Carol Johnston, testified that Varn would hold P.R.C. a lot and would

not let her get down and play. Another family friend, Anjulie Ganti, described

Varn as a "hovering" parent who was "always" holding P.R.C. and not letting her

explore. Gupta also testified that Varn wanted somebody to be in the room with

P.R.C. while she slept, and he refused to use a baby monitor.

Dr.Jennifer Wheeler was the court-appointed parenting evaluator. She

interviewed both parents, the child, and others in preparing her written evaluation

and recommendations to the court. At trial, she testified that Varn's constant

holding of P.R.C. was behavior that appeared to be "more about father's anxiety

about what might happen if he put her down and regulating his own anxiety

versus recognizing what's really best for her in that particular situation." Dr.

Marsha Hedrick, a parenting evaluator that Varn called on his behalf, agreed that

this behavior was problematic in terms of the child's best interests.

This evidence is sufficient to persuade a fair-minded person that Varn

"discouraged [P.R.C.'s] exploration and independence."

Second, the trial court found that Varn was "unwilling or unable to

establish boundaries, routines, schedules, and structure." Dr. Hedrick, who

reviewed Dr. Wheeler's report, testified at trial that Varn appeared to be "overly

permissive in his parenting" regarding P.R.C.'s eating and sleeping.

Neha's mother, Kuldeep , Johnston, and Ganti agreed that Varn did not

set routines or create structure around these activities. For example, they

explained that Varn and his mother would chase P.R.C. around the house

instead of feeding her at a table or in a high chair. Varn testified that he knew
No. 68424-8-1/7

that P.R.C.'s doctor recommended against giving P.R.C. a bottle of milk at night

as she got older, but he would almost never decline P.R.C.'s request for a bottle.

Neha testified that she was not able to implement a bedtime routine for P.R.C.

until September 2010 when Varn and his parents started to leave the house after

dinner.

Dr. Wheeler also testified that Varn was "very controlling" with "certain

things" like car seats and baby monitors, but "[w]hen it came to the schedule,

there was sort of this odd lack of structure and lack of control."

In sum, there is substantial evidence in this record to support the findings

that Varn "discouraged [P.R.C.'s] exploration and independence" and that Varn

was "unwilling or unable to establish boundaries, routines, schedules, and

structure."

Varn argues that his discouragement of P.R.C.'s "exploration and

independence" was not a problem at the time of trial. He points to Dr. Wheeler's

testimony that P.R.C. was playing with the visitation supervisor's son.

Nevertheless, the trial court was not convinced by his testimony that the "risks

and hazards of his parenting choices going forward" would continue to improve.

Thus, the trial court made a credibility determination, which this court does not

review.14

Varn contends that the professionals who testified at trial thought P.R.C.

had "always been a perfectly happy, healthy child, with normal development." A

fair reading of the entire record, however, shows that Dr. Wheeler,

14 In re Marriage of Rich. 80 Wn. App. at 259.
No. 68424-8-1/8

notwithstanding this observation, believed that parental behavior merited

restrictions. Thus, this argument fails.

Varn argues that Drs. Wheeler and Hedrick did not have "any concerns

about Varn's parenting [that] rose to a level requiring restrictions." This is

inaccurate.

The record reflects that Dr. Hedrick criticized Dr. Wheeler's report for

failing to tie her concerns about Varn to a basis for restrictions. But at trial Dr.

Wheeler testified that while restrictions were not justified based on domestic

violence, sexual abuse, or emotional impairment, she believed that Varn's

"abusive use of conflict" was a different basis for restrictions. Dr. Wheeler

admitted in her testimony that her written report did not "do an adequate job of

connecting the dots between what [her] concerns were and the limitations to the

schedule that [she was] recommending." But her testimony at trial was clear:

My authority for my opinion is that the personality traits that

I've been describing all morning in my opinion, the risk to [P.R.C]

of those traits is ongoing conflict that is essentially emotionally

abusive to her. And I do think that until those traits are better

regulated and [Varn is] able to interact with [P.R.C] in a way that

does not perpetuate this conflict and parent in a way that does not

continue to inflame this conflict, I do think that father is vulnerable

to engaging in abusive use of conflict. That supports generally why

I am limiting his residential schedule relative to what you just

referred to as the normal, typical kind ofrecommendation.115'

In any event, it is the ultimate responsibility of the court, not the experts, to

determine whether restrictions are required. The court did so here on the basis

15 Report of Proceedings (Jan. 31, 2012) at 305-06.

8
No. 68424-8-1/9

of all the evidence, including the testimony of both parenting evaluators. There

was no error in this respect.

Varn argues that it is common for parents to have different styles of

parenting, and courts must tolerate these different styles. He contends that the

trial court was "imposing [its] own preference regarding parenting style" because

his parenting style did not result in any "demonstrable harm" to P.R.C. This

argument ignores the record.

As discussed previously in this opinion, the findings of fact regarding

Varn's parenting history are supported by substantial evidence. Moreover, the

findings support the conclusion that his parenting had an adverse effect on

P.R.C.'s best interests. Thus, the trial court was properly acting under the

provisions of governing law, not imposing its own parenting style preference.

Varn argues that "[t]o illustrate the concern about imposing restrictions

without a sufficient showing of harm, one could easily make arguments for

restrictions against Neha as readily as Judge Doerty did against Varn." The

premise of this argument is incorrect.

We have already identified the adverse effect that Varn's actions had on

the child. In contrast, there is no showing that restrictions against Neha should

have been imposed. As Drs. Wheeler and Hedrick testified, they did not have

any serious concerns about Neha's parenting that would rise to the level of

requiring restrictions.

Finally, Varn argues that "the due process clause prohibits imposing

restrictions under RCW 26.09.191 without a showing that they are necessary to
No. 68424-8-1/10

avoid an identified harm to the child." Hecites Troxel v. Granville16 to support

this assertion.

But as Varn acknowledges, this court has already rejected a similar

argument in In re Marriage of Katare.17 There, this court explained thatTroxel

does "not support [the father's] argument that a parenting plan that complies with

the statutory requirements to promote the best interests of the children raises an

issue of constitutional magnitude or violates a parent's constitutional rights."18

Thus, this argument is not persuasive.

As noted above, Varn also assigned error to two other findings of fact.

The first is that Varn "lacked, in concerning degree, objectivity with respect to

[P.R.C.'s] healthy development." The second is that Varn "actively undermined

the mother's efforts to provide these essential parenting components resulting in

an imbalance that appears to have had adverse consequences for the child."

Varn fails to support these assignments of error with any argument or

persuasive authority. Thus, we need not address them.19

Restrictions

Varn argues that the restrictions in the parenting plan were not supported

by the findings. Specifically, he challenges three restrictions in the parenting

16 530 U.S. 57, 120 S. Ct. 2054, 147 L Ed. 2d 49 (2000).

17 125 Wn. App. 813, 105 P.3d 44 (2004).

18 ]d, at 823.

19 See State v. Johnson. 119 Wn.2d 167,171, 829 P.2d 1082 (1992).

10
No. 68424-8-1/11

plan. None of his challenges are meritorious. All of the restrictions are

reasonably calculated to address identified harm to the child.

"A trial court wields broad discretion when fashioning a permanent

parenting plan."20 But this discretion is guided by several provisions of the

Parenting Act of 1987, including RCW 26.09.191, which sets "forth factors which

require or permit limitations upon a parent's involvementwith the child."21 A

primary concern in establishing parenting plans is that parenting arrangements

serve the best interests of the child.22 This court has held that "[a]ny limitations

or restrictions imposed must be reasonably calculated to address the identified

harm."23

The first challenged restriction is the limit on Varn's time with P.R.C,

which is approximately 30 hours a week. Under the court's plan, this visitation

was scheduled to increase in length over three stages ifVarn continued to

comply with certain requirements. This time restriction was supported by the trial

court's Memorandum Findings on Trial:

While it is cause for optimism that Varn has agreed to

parenting plan provisions that recognize the importance of

"[P.R.C.'s] set schedule for meal times, bed times, wake up times

etc.", his testimony failed to persuade this court that he appreciated

the down side of his approach before separation or the risks and

hazards of his parenting choices going forward. This assessment

of his testimony is consistent with Dr. Wheeler's concerns about his

20 Katare. 175 Wn.2dat35.

21 ]d, at 36.

22 See RCW 26.09.002.

23 Katare. 125Wn. App. at 826.

11
No. 68424-8-1/12

difficulties with integrating data inconsistent with his view of reality.

It is therefore necessary to impose such restrictions as may best be

anticipated [to] assure the mother's parenting is not diluted by the

father. Certainly a "fifty/fifty" parenting plan would not accomplish

this.t24]

The time restriction in the residential schedule was a reasonable way to address

Varn's unwillingness or inabilityto establish boundaries, routines, schedules, and

structure; and help him develop objectivity with respect to P.R.C.'s development.

Varn argues that the evidence shows that he was "the primary parent

during much of P.R.C.'s life," and this fact does not support the time restriction.

But at trial, there was conflicting evidence whether Varn was the primary parent,

and the trial court did not make a finding as to this fact. In any event, such a

finding would not obviate the need for this restriction, given this record.

The second challenged restriction was that P.R.C. sleep in her own room

at Varn's house unless the case manager recommends otherwise. This

restriction was also supported by the trial court's findings which were, in turn,

supported by testimony at trial.

In the Memorandum Findings on Trial, the trial court found that Varn was

"unwilling or unable to establish boundaries, routines, schedules, and structure,"

which included P.R.C.'s sleeping routine. At trial, several witnesses' testimony

supported this finding. They testified that Varn interfered with P.R.C.'s sleeping

schedule by being in the same room as P.R.C. Neha testified that she felt like

P.R.C. was not getting enough sleep because Varn would hold her in the middle

of the night. Neha went on to explain:

24 Clerk's Papers at 93.

12
No. 68424-8-1/13

sometimes children have to be soothed to go back to bed, but he

would just randomly pick her up. At2 in the morning, he's holding

her.... And Ifelt that the co-sleeping was more disruptive and it

wasn't healthy for her because she's not sleeping through the

night.1251

She also testified that Varn would show P.R.C. videos on the Internet until 1

a.m., which kept her from sleeping. Ganti's testimony corroborated this

statement.

Several witnesses also testified to other interruptions of P.R.C.'s sleep.

Ganti observed Varn's mom staying in the room while P.R.C. was sleeping. And,

though Ganti offered the family a baby monitor to use while P.R.C. slept, she did

not see the Chandolas use it. Johnston testified that P.R.C. often seemed

"cranky and tired." Dr. Wheeler testified that she would support a restriction that

would require that P.R.C. sleep in her own room if the parent trainer supported

this restriction.

In contrast, Varn testified that P.R.C. had a difficult time sleeping. He

asserts that she would go to sleep around 9 p.m. and then wake up again at 11

p.m., midnight, or 1 a.m. He testified itwas his responsibility to help her get back

to sleep, and he would use different noises including music from Internet videos

to help her sleep.

Given the conflicting testimony of the parties regarding P.R.C.'s sleeping

schedule and the testimony of Dr. Wheeler that supported this restriction, the trial

court was well within its discretion to require P.R.C. sleep in her own room. This

restriction is reasonably related to the identified harm to the child.

25 Report of Proceedings (Feb. 1, 2012) at 411 -12.

13
No. 68424-8-1/14

Varn argues that precluding P.R.C. from sleeping in his room would

actually cause more harm to P.R.C. because she has never slept in her own

room. But as noted above, this requirement is based on Dr. Wheeler's trial

testimony and conditioned on the case manager's recommendation. Moreover, it

could be altered depending on the case manager's observations of P.R.C.'s

progress. Thus, Varn's argument is not persuasive.

The third challenged restriction limited Varn from having his parents

present for more than 20 percent of his time with P.R.C. during stages one and

two of the residential schedule. Again, this restriction was supported by the trial

court's findings:

Varn's opportunities to parent and to learn from the

opportunities must in large part be without the presence of his

parents. The court recognizes that there are several cultural

aspects to the history of the marriage and these may or may not

include the paternal grandparents approach and influence. Or it

may be due to Varn being an only child, or likely a combination of

both. Whatever the antecedents of the extended family dynamic

the so called "team" approach at this time needs to stop. Therefore

Varn's residential time must exclude his parents with occasional

exceptions which may include [P.R.C] visiting her grandparents in

Tucson consistent with the other provisions ofthe plan.[2 ]

The trial court's findings appear to provide two reasons for the restriction on the

involvement of Varn's parents: (1) provide Varn with opportunities to parent, and

(2) improve the "family dynamic."

As discussed above, the trial court found that Varn was "unwilling or

unable to establish boundaries, routines, schedules, and structure," but he was

willing to work on following P.R.C.'s "set schedule for meal times, bed times,

26 Clerk's Papers at 93-94.

14
No. 68424-8-1/15

wake up times, etc" Ensuring that Varn mostly spends time with P.R.C. alone

was a reasonable way to ensure that Varn establishes "boundaries, routines,

schedules, and structure" for P.R.C. while still allowing the grandparents to be

involved in P.R.C.'s life.

Moreover, Drs. Wheeler and Hedrick both testified that they were

concerned about the family dynamic. As noted above, Dr. Wheeler reported that

"[P.R.C] became increasingly aligned with the father and paternal grandparents

and relatively less aligned with the mother and maternal grandparents," which

she described as harmful to P.R.C. Dr. Hedrick testified that the data in Dr.

Wheeler's report made her "suspicious that these in-laws and this father had

made itvery difficult for this mother to have a reasonable relationship with the

child."

Johnston, a neighbor, and , Neha's mother, testified that Varn and his

parents seemed to encourage P.R.C. to choose Varn over Neha.

Again, restricting the amount of time Varn's parents can spend with Varn

and P.R.C. was a reasonable way for the court to change and improve the family

dynamic that had developed.

Varn argues that Dr. Wheeler did not identify any problem with P.R.C.'s

relationship with Varn's parents and recommended that Varn and Neha support

this relationship. While Dr. Wheeler noted in her report that P.R.C.'s relationship

with her grandparents should be supported by her parents, as discussed above,

she also explained that the family dynamic that had developed with Varn and his

parents was harmful to P.R.C. Thus, this argument is not persuasive.

15
No. 68424-8-1/16

Varn argues that any effort to undermine Neha and P.R.C.'s relationship is

no longer a problem because Neha and Varn live separately. Again, this view is

contrary to Dr. Wheeler's recommendation. Thus, this argument fails.

Varn points out that Neha did not request the grandparent restriction.

That is irrelevant. The trial court's duty is to determine whether the child's best

interests require the imposition of restrictions irrespective of whether a party asks

for such restrictions.27 The trial court did so in this case.

In sum, these challenged restrictions were supported by the trial court's

findings and were reasonably calculated to address Varn's parenting history,

which had an adverse effect on P.R.C.'s best interests. The trial court did not

abuse its discretion in imposing these restrictions on Varn in the parenting plan.

UNPROVEN SEXUAL ABUSE ACCUSATIONS

Varn argues that the trial court failed to consider the distorting effects of

the unproven sexual abuse accusations. There is no support in the record for

this argument.

Ifsexual abuse accusations are proven, the trial court is "required to

restrict [a parent's] residential time and to eliminate the mandatory alternative

dispute resolution and mutual decision-making provisions of the parenting

plan."28 But if the sexual abuse accusations are unproven, the trial court still has

discretion under RCW 26.09.191 (3)(d) to place restrictions or limitations on a

27 See Katare. 175 Wn.2d at 35-36.

28 Watson. 132Wn. App. at 232 (citing RCW 26.09.191 (1)(b), (2)(a)(ii)).

16
No. 68424-8-1/17

parent if the evidence supports a finding that the parent's "involvement or

conduct" has an adverse effect on the child's best interests.29

There is nothing in this record to show that the restrictions here were

imposed based on sexual abuse. Rather, they were imposed based on other

documented harm to the child's best interests.

Varn primarily relieson In re the Marriage ofWatson30 to support his

argument. There, Division Two concluded that "the trial court exceeded its

authority and abused its discretion in limiting [a father's] visitation after finding

that the sexual abuse allegations were unprove[n]."31 In that case, the mother

obtained a protection order against the father alleging that the father had sexually

abused theirdaughter after a final parenting plan was in place.32 At first the

father had no contact with his daughter and then he had two hours of

professionally supervised visits for overtwo years.33 After finding that the

allegations were unproven, the court did not reinstate the parent's original

parenting plan but added more restrictions on the father's visitation under RCW

26.09.191 {3){6).M

29 Id,

30 132Wn. App. 222>, 130 P.3d 915 (2006)

31 Watson. 132Wn. App. at 225.

32 Id,at 226.

33 id.

34 Id. at 228.

17
No. 68424-8-1/18

Division Two acknowledged that the mother did not ask for restrictions

under RCW 26.09.191, and thus, the issue was not properly before the court.35

But, Division Two concluded that substantial evidence did not support the trial

court's decision to restrict visitation under RCW 26.09.191 (3)(d):

The court found that conflict between the parents escalated

following the entry of the parenting plan, but there are no findings

indicating that [the father] caused the conflict. The court also found

that [the daughter] had a subjective perception of sexual abuse and

visitation anxiety but not that [the father] caused it.

On the contrary, the evidence shows only that [the father] did

the "most parenting he could" under the restrictive conditions

available to him. In the absence of substantial evidence

establishing a nexus between [the father's] "involvement or

conduct" and the impairment of his emotional ties with [the

daughter], the trial court erred in imposing visitation restrictions

under RCW 26.09.191 (3)(d).[36]

Division Two explained that the sole basis for the requested restriction was the

sexual abuse allegations, and most of the litigation focused on whether the

sexual abuse actually occurred.37 The record in thatcase did not support the

finding that emotional ties between the father and daughter were absent or

impaired, which was required for a restriction under RCW 26.09.191 (3)(d).38

In contrast to Watson, here, the trial did not base any part of its decision

on whether Neha's accusations or concerns about sexual abuse were proven.

Instead, the trial court imposed restrictions on the basis that Varn's "parenting

35 id, at 233.

36 id, at 234.

37 id, at 232-33.

38 Id. at 233-34.

18
No. 68424-8-1/19

history has had an adverse effect on the child's best interest," which fell under

the catch-all provision of RCW 26.09.191 (3)(g). Unlike Watson, the trial court

expressly found that Varn was an "ineffective parent" for a variety of reasons

unrelated to sexual abuse. As discussed above, the trial court's findings are

supported by substantial evidence, which in turn support the restrictions and

limitations.

Varn argues that the effect of the accusations was that he had nearly one

year of supervised visitation with P.R.C. leading up to the trial. He contends that

the supervised visitations impacted Dr. Wheeler's observation of Varn, and they

did not allow him the opportunity to show the improvements he was making. He

argues that the trial court should have "disregarded Varn's marginalized status

during the temporary orders ... [and] looked instead to the situation that existed

prior to Neha's accusations." But the trial court's findings demonstrate that it did

just that. The trial court looked at the family situation before the temporary order

and supervised visitation were in place, and it still found that restrictions were

necessary.

Varn also contends that the trial court improperly credited all of P.R.C.'s

improvement to Neha's parenting and did not consider that her improvements

could be developmental. There simply is no support in the record for this

assertion. There is no need to further address this argument.

Finally, Varn argues that RCW 26.09.002 provides that "the best interests

of the child is ordinarily served when the existing pattern of interaction between a

parent and child is altered" as little as possible. This is a correct statement of the

19
No. 68424-8-1/20

law. But that statute does not overcome the requirements of RCW

26.09.191 (3)(g), which control here.

CULTURAL CONSIDERATIONS

Varn argues that the trial court's restrictions regarding co-sleeping and his

parents' involvement denied his right to substantive due process and equal

protection because the court failed to consider the family's Asian Indian culture.

These arguments have no merit.

The Fourteenth Amendment of the United States Constitution protects the

freedom of "'intimate association,'" which is derived from substantive due process

concepts.39 The United States Supreme Court has recognized thatthe right to

"'intimate association'" protects "'the choices to enter into and maintain certain

intimate human relationships [that] must be secured against undue intrusion by

the State.'"40 These "intimate human relationships" include "the raising and

educating ofone's children"41 and "cohabitation with one's relatives."42

Additionally, RCW 26.09.184(3) provides that a "court may consider the

cultural heritage and religious beliefs of a child" when establishing a permanent

parenting plan. "Moreover, parenting plans are individualized decisions that

39 City of Bremerton v. Widell. 146Wn.2d 561, 575, 51 P.3d 733 (2002)

(quoting Roberts v. United States Javcees. 468 U.S. 609, 618,104 S. Ct. 3244,

82 L Ed. 2d 462 (1984)).

40 id, at 576 (quoting Roberts. 468 U.S. at 617-18).

41 id, (citing Pierce v. Societyof the Sisters of the Holy Names ofJesus

and Mary. 268 U.S. 510, 45 S. Ct. 571, 69 L Ed. 1070 (1925)).

42 id, (citing Moore v. City of E. Cleveland. 431 U.S. 494, 97 S. Ct. 1932,

52 L Ed. 2d 531 (1977)).

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No. 68424-8-1/21

depend upon a wide varietyof factors, including 'culture, family history, the

emotional stability of the parents and children, finances, and any of the other

factors that could bear upon the best interests of the child.'"43

As discussed above, the trial court restricted P.R.C. from sleeping in the

same room as Varn and limited the involvement of Varn's parents. Before

imposing these restrictions, the trial court appeared to take the family's culture

into consideration in establishing the parenting plan. In the Memorandum

Findings on Trial, the trial court recognized that "there are several cultural

aspects to the history of the marriage and these may or may not include the

paternal grandparents approach and influence." The trial court also heard

testimony from Varn and Neha that it was customary in Indian culture for parents

to sleep with their children and to have grandparents live with them and help

provide care.

The trial court did not completely prohibit the paternal grandparents'

involvement or co-sleeping with Neha and thus appears to have considered

these cultural norms. Instead, the trial court put restrictions on Varn because it

found that his approach to these two practices were adverse to P.R.C.'s best

interests. As discussed earlier, a parenting plan that complies with the statutory

requirements to promote the best interests of the child does not raise an issue of

constitutional magnitude or violate a parent's constitutional rights. 44

43 In re the Parentage ofJannot. 149Wn.2d 123,127, 65 P.3d 664 (2003)

(emphasis added) (quoting In re the Parentage of Jannot. 110 Wn. App. 16, 19-

20, 37 P.3d 1265 (2002)).

44 See Katare. 125Wn. App. at 823.

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Varn also argues that the "trial court's rulings on these issues amounted to

national origin discrimination," which violated Varn's right to equal protection. But

Varn fails to cite any authority to support this assertion or provide any other

argument beyond thisstatement. Thus, we need notaddress this argument.45

ATTORNEY FEES

Varn requests an award of attorney fees and costs. Neha did not request

fees. We conclude Varn is not entitled to an award of fees or costs.

RCW 26.09.140 provides for fees on appeal in a dissolution matter.

"Upon any appeal, the appellate court may, in its discretion, order a party to pay

for the cost to the other party of maintaining the appeal and attorneys' fees in

addition to statutory costs."46

We have considered the respective financial declarations that both parties

filed and conclude an award of fees is not warranted.

We affirm the parenting plan. £z?(,J.

WE CONCUR:

<,/A^-/f,Cd stS/AA-fAQe* I

45 See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828

P.2d 549 (1992).

46 RCW 26.09.140.

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