### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the Parentage of No. 50560

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UNPUBLISHED OPINION

A Minor Child.
W ORSWICK , J.

— The trial court granted Darin Stone’s petitio n for a major modific at ion of his and Kristina Gilliam’s parenting plan for their three children. Gilliam argues th at the trial court abused its discretion by (1) admitting impermissible hearsay, (2) declining to apply a spoli at ion inference against Stone , and (3) granting the major modific at ion to the parenting plan.
We hold th at the trial court did not abuse its discr etion. Accordingly, we affirm.
FACTS Darin Stone and Kristina Gilliam entered into a final parenting plan for th eir three children in September , 2014. Shortly thereafter, the children moved to Germany with Kristina and her husband , Michael Gilliam. 1 By the terms of the parenting plan, Stone was to have the children in Washington for several weeks every summer. However, Stone and Gilliam could not reach an agreement for the summer of 2015, so the children remained in Germany. In April 2016, Stone brought a motion to enforce the parenting plan , and the court granted Stone additional time with the children for the summer of 2016. When the children arrived in Washington in June 2016, they acted different ly , appearing “short tempered, tim id, nervous, and

1 Because Kristina and Michael Gilliam share the same last name, we refer to Michael Gilliam by his first name for clarity. No disrespect is intended. Filed Washington State Court of Appeals Division Two February 20, 2019No. 50560

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flighty.” C lerk’s P apers (CP) at 30. The oldest child, D.J.S, appeared depressed, with low self

esteem and “ tend [ ed ] towards suicide. ” CP at 30. He also bullied his younger siblings. The middle child, C.E.S. , had developed a bed wetti ng problem and would lie about it to avoid “getting in trouble.” CP at 30. The youngest, Z.R.S. , “ would react by melt ing down and crying and/ or fl ying off the handle when discipline d

. ” CP at 30. Approxim at ely one month after the children had arrived in Washington to stay with Stone, all three began making disclosures about domestic violence and abuse th at had occurred in Germany. The children disclosed that Michael had been violent toward the children and toward Gilliam through emotional and physical abuse. Stone sought medical car e and was referred to Jennifer Knight, a licensed mental health counselor. In July 2016, Knight diagnosed all three children with adjustment disorder with anxiety and dysthymia . Addit ionally, she diagnosed D.J.S. with depression. In August 2016, Stone petitioned for a major modific at ion to the parenting plan , requesting to become the custodial parent

. He alleged that the abuse in Gilliam ’ s home in Germany was harmful to the children’ s physical, mental, and emotional health. The matter proceeded to trial.
At the modification trial, w itnesses testified to the above facts. Knight testified th at she had been the clinical therapist for the Stone children following their return from Germ any. Knight had met with each child individually and she st at ed th at the children knew why they were talking with her. All three children recounted several instances of abuse and violence in their home in Germany , including a large fight between Michael and Gilliam when the m ilitary p olice were called . Throughout the ir counseling, the children consistently recounted what hadNo. 50560

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happened in Germany . Further , the children exhibited signs of trauma, fear, and exposure to domestic violence. Knight testified th at children did not appear to be coached in their responses and th at parentific at ion 2 of their mother had occurred. Knight said th at the children’s disclosures about abuse and home environment helped in diagnosing and tre at ing them. Darin and Lori Ston e 3 testified to st at ements they heard during a domestic incident between Michael and Gilliam on January 24, 2016

. Stone was on a Skype call with Gilliam discussing the children’s return to the United St at es. Gilliam was in her vehicle in the driveway whe n Michael came out of the house and began angrily yelling at her , causing Gilliam to cry

. Once Michael went back into the house, Stone and Gilliam discussed her going into the house to make sure the children were okay. The Stones testified th at Gilliam k ept the phone call active when she went back into the house. Stone testified th at Michael was yelling vulgar things and th at he was very angry. Lori noted th at Michael was “enraged” and shouting obscene names at Gilliam while she hysterically cried in fear. 2 V erbatim R eport of P roceedings (VRP) at 262. Michael was yelling things like, “You worthless piece of s**t,” “stupid b** * h”, a nd “I should hit you harder.” CP at 31. The Stones also testified to hearing Gilliam crying and asking Michael to “stop hitting.” CP at 31

. Gilliam objected to the Stones’ s testimony describing Michael’s st at ements they heard over the

2 “Parentification is when children feel like they have to take care of their own parents.” 1 V er batim R eport of P roceedings at 102.

3 Because Darin and Lori Stone share the same last name, we refer to Lori Stone by her first name for clarity. No disrespect is intended.No. 50560

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phone as hearsay , but the trial court overruled these objections , ruling that the statements were excite d utterances

. Gilliam also testified. She acknowledged the phone call she made to Stone in her car , but contended th at she ended the call before entering her house to speak with Michael. She also admitted th at this call took place the same day th at the m ilitary p olice were called to the Gilliam home. Gilliam moved for a spoli at ion inference against Stone regarding the call

. Gilliam argued th at she contended the Skype call on January 24, 2016 was brief, while the Stones testified the call lasted closer to an hour. Gilliam argued th at although Stone preserved a screenshot of other Skype logs, he did not screenshot this Skype call log . If he had , the n the record would be clear that the call did not occur as the Stones testified. The trial court denied the motion. At the conclusion of trial, the trial court entered findings of fact and conclusions of law. The trial court made findings consistent wit h the facts stated above and also concluded that there had been a substantial change in the children’s situation and that the requested change wa s in the ch ildren’s best interest. The trial court found that Michael emotionally and physically abused the ch ildren, that the children were exposed to domestic violence, and that Gilliam failed to protect her children. Accordingly, the trial court granted the major modification and determined Stone to be the primary residential parent. Gilliam appeals.
ANALYSIS
I. H EARSAY Gilliam argues th at the trial court improperly allowed Knight to testify regarding the children’s statements about domestic abuse in the home and the Stones to testify about Michael ’ sNo. 50560

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statements

. Specifically, Gilliam argues th at Knight’s testimony did not meet the hearsay exception for st at ements made for the purposes of medical diagnosis and tre at ment , and the Stones’s testimony regarding Michael’s statements during a domestic violence incident in Germany did not meet the hearsay exceptio n for excited utterances. We hold that the testimony was admissible

. “‘Hearsay’ is a st at ement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the m at ter asserted.” ER 801(c). Hearsay is inadmissible unless it falls under an exception or exclusion to the hearsay rule. ER
802 . Two such hearsay exceptions are st at ements made for purposes of medical diagnosis or
tre at ment and excited utterances. We review a trial court’s evident iary rulings for an abuse of discretion

. Maytown Sand & Gravel, LLC v. Thurston C oun ty , 191 Wn.2d 392, 437, 423 P.3d
223 (2018)

. A trial court abuses its d iscretion only where no reasonable person would take the view adopted by the trial court. Brundridge v. Fluor Fed. Servs., Inc. , 164 Wn.2d 432, 450, 191 P.3d 879 (2008).
A. St at ements for Purposes of Medical Diagnosis or Tre at ment Gilliam argues th at the trial court erred when it allowed Knight to “testify as to what the
children stated in the ir session s as it relates to issues outside the scope of medical diagnosis.” Br. of Appellant at 8 (emphasis omitted)

. We disagree because the children’s statements were used for medical diagnosis

. H earsay s t at ements are not excluded when “ made for purp oses of medical diagnosis or
tre at ment and describing medical history, or past or present symptoms, pain, sens at ions, or the inception or general character of the cause or external sources thereof insofar as reasonablyNo. 50560

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pertinent to diagnosis or tre at ment.” ER 803(a)(4). For ER 803(a)(4) purposes, “medical” applies to both physical and mental health, including therapy for abuse. In re Dependency of
M.P. , 76 Wn. App. 87, 92

- 93, 882 P.2d 1180 (1994). Accordingly, this hearsay exception includes st at e ments made to social workers and child abuse counselors. Dependency of M.P. , 76 Wn. App. at 92

- 93. For statements to be admissible under ER 803(a)(4) , “ t he declarant’s motive in making the st at ement must be consistent with the purposes of promoting tre at ment, and the content of the st at ement must be of the kind reasonably relied on by the person providing the
tre at ment or diagnosis.” Dependency of M.P. , 76 Wn. App. at 93. In her opening brief , Gilliam does not contest the children’s st at ements’ reliabil ity or
tre at ment motive

. 4 R at her, she argues only th at the st at ements should not have been admitted because they formed the basis of Knight’s nonmedical opinion testimony

. 5 In other words, Gilliam argues that because the statements were used to prove factual allegations other than diagnosis, the trial court erred in allowing them. Here, the child ren’s statements were reasonably pertinent for diagnosis and treatment. Stone took the children to a medical doctor after they began disclosing to him the ab use th at occurred. Th at medical doctor referred the children to Knight , a licensed mental health counselor

. The children knew they were talking to a professional counselor to discuss the abuse

4 In her r eply b rief, Gilliam contests the reliability of the children’s statem ents to Knight for the first time. Because she raises this argument for the first time on reply and the r espondent was not on notice to address it , we decline to consider it. RAP 10.3(c).

5 Gilliam s pecifically argues that Knight impermissibly testified to whether the children were coached to make certain statements, whether parentification occurred, and how much domestic violence took place in the home.No. 50560

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th at had occurred and to assist with moving past the trauma. Knight testified th at the children’s disclosures about abuse and home environment helped in diagnosing and tre at ing them. The therapy sessions’ purpose was to understand and diagnose the results of the abuse and domestic violence as well as to tre at the children’s resulting mental and physical conditions. Further, Gilliam does not contest the children ’ s st at ements’ relia bility or motive for tre at ment. Therefore, the trial court did not abuse its discretion when it admitted the children’s st at ements th at were made to her for the purposes of medical tre at ment or diagnosis. 6
B. Excited Utterances Gilliam next argues th at the trial court abused its discretion when it allowed the Stones to testify about st at ements made by Michael during a domestic violence incident. Specifically, Gilliam contends th at Michael’s st at ements do not meet the definition of the excited utterance exception to hearsay exclusion. We agree that Michael’s statements were not excited utterances, but hold that they were not hearsay bec ause they were not offered for the truth of the matter asserted. Thus, the trial court did not abuse its discretion in admitting them.
An “ excited utterance ” is “[a] st at ement rel at ing to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” ER 803 (a)(2). Gilliam objected to the Stones’ s testimony describing Michael’s st at ements they heard over the phone during a domestic violence event between Michael and Kristina Gilliam. Stone

6 Gilliam does not argue that Knight’s testimony was improper opinion testimony; she argues only tha t the children’s statements should not have been admitted because they formed the basis for testimony that was not a medical diagnosis.No. 50560

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c ontended th at his st at ements were excited utterances. The trial court overruled the hearsay objection, allowing the testimony into evidence as excited utterances

. Here, there is no evidence that Michael was res ponding to a startling event. Although, h e

was enraged and may have caused a startling event, there is no proof Michael was responding to one. Accordingly, Michael’s statements do not meet the excited utterance exception. However,

we may affirm the trial court on any grounds as long as the record is sufficiently developed to fairly consider the ground. RAP 2.5(a). Here, Michael’s screaming at Gilliam is not hearsay at all because his statements were not admitted for the truth of the matter asserted

. The Stones testified that Michael specifically said : What the f**k [ were you ] doing out there?

. . . .

. . . What the f**k [ were you ] doing on the phone with that piece of s**t

.

. . . w hy the f**k would you do that . . . h e’s a piece of s**t , y ou’re the worst mother there is

. . . y ou’re the worst thing that’s ever happened to me and I will be filing for divorce tomorrow and I’m serious this time.

. . .

. . . . . . . [ You ] deserved [to be hit]

. . . [ I ] should have hit you harder for being so stupid.

. . . I should have hit you harder.

. . . w orthless

- piece

- of

- s**t mom;

. . . I can’t believe you would give up on your f*****g kids and just send them back to that piece

- of

- s**t dad.

. . . I should hit yo u harder, you deserve that, you’re a stupid b***h, you’re the worst thing that’s ever happened to me

. . . you are the most worthless piece

- of

- s**t mom, I have to do everything for these kids, you do nothing for them. You want to get in other people?

. . . [ H ] ow about Eddie or how about all the other guys that you’ve screwed over the time

—No. 50560

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9 . . . . . . . [ W ] hat are you doing

. . . . Are [ you ] going to post this on Facebook like you do everything else?”
1 VRP (April 17, 2017) at 66

- 68; 2 VRP (April 18, 2017) at 26 2

- 6 4. The significance of Michael’s words is simply that they were spoken, not that they were
true

. Stone was not attempting to prove that Michael thought Gilliam was worthless or stupid, or that he actually should have hit Gilliam harder. Michael’s statements and behavior, including his
rage , screaming , and hitting w ere relevant, not based on the truth of his statements, but because they tended to show that the children witnessed domestic abuse in the home. Because Michael’s

statements w ere not admitted for their truth , the Stones’s testimony regarding the domestic
violence incident was admissible , and Gilliam’s argument fails

. II. S POLI AT ION Gilliam argues th at the trial court erred by declining to impose a spoli at ion inference against Stone for not producing Skype logs from January 24, 2016 at trial. We disagree.

“ Spoli at ion ” is the “intentional destruction of evidence.” Tavai v. Walmart Stores, Inc. , 176 Wn. App. 122, 134, 30 8 P.3d 811 (2013). In determining whether to app ly a spoli at ion inference against a party who destroyed or did not p r e se rve evidence, we consider “the potential importance or relevance of the missing evidence” and “the culpability or fault of the adverse party.” Tavai , 176 Wn. App. at 135. The importa nce of the missing evidence depends on the facts of each case. Tavai , 176 Wn. App. at 135. Regarding culpability, we consider whether the party has an innocent explan at ion for the missing evidence or whether the party’s bad faith or conscious disregard l ed to the loss of theNo. 50560

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evidence. Tavai , 176 Wn. App. at 135. Further, we consider if the party viol at ed some duty to preserve the evidence. Tavai , 176 Wn. App. at 135. However, there is no general duty to preserve evidence and “a party’s negligent failu re to preserve evidence relevant to foreseeable litig at ion is not sanctionable spoli at ion.” Cook v. Tarbert Logging, Inc. , 190 Wn. App. 448, 464, 470, 360 P.3d 855 (2015). We review a trial court’s refusal to apply a spoli at ion inference for an abuse of discretion. Henderson v. Tyrrell , 80 Wn. App. 592, 604, 910 P.2d 522 (1996). Gilliam argues th at because Stone took screenshots of certain texts or call logs but not others , and because he did not provide a reason as to why, then there m ust be a spoli at ion inference. Gilliam does not argue th at Stone had any culpability other than negligence ; r at her, she argues th at negligence alone would allow a spoli at ion inference. She is incorrect , and her argument fails

. See Cook , 190 Wn. App. at 464, 470.
III. M ODIFIC AT ION OF THE P ARENTING P LAN Gilliam argues th at the trial court abused its discretion when it found th at Stone met his burden to modify the final parenting plan because the findings are not supported by substantial evidence

. In this regard , Gilliam argues only th at because the children’s and Michael’s
statements were inadmissible, then the remaining evidence is insufficient to modify the parenting plan. Because we hold th at the trial court did not abuse its discretion when admit ting the disputed evidence , we hold th at substantial evidence supports the trial court’s findings of fact and the findings support the conclusions of law based on the analysis above

. We affirm

.No. 50560

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A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Worswick, P.J. We concur:

Melnick, J.

Sutton, J.