IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 73933-6-1

DIVISION ONE

UNPUBLISHED OPlNgJN

3

!

In the Matter of the Marriage of

LISA MERE CONKLIN, n/k/a/

CHRISTENSEN,

Respondent,

v.

NICHOLAS FREDERICK CONKLIN,

Appellant.

v£> c:

FILED: November 9, 2Q15

Appelwick, J. — Conklin appeals the trial court's order modifying the

parenting plan for his son, D.C. Substantial evidence supports a finding that a

substantial change of circumstances in D.C.'s life had occurred. Substantial

evidence supports the changes in the residential schedule and the restrictions on

Conklin's role in D.C.'s life. The modified parenting plan is in the best interests of

D.C. We affirm.

FACTS

Lisa Christensen and Nicholas Conklin were married in February 2008.

They had a child together, D.C. Lisa and Nicholas1 separated in January 2009

1 We refer to the parties by their first names for clarity. No disrespect is

intended.

o-
No. 73933-6-1/2

when D.C. was about one and a half years old. Lisa filed for dissolution after a

very short marriage. In June 2009, the parties obtained a temporary parenting

plan. D.C. resided with his mother a majority of the time under the temporary

parenting plan. The temporary parenting plan afforded Nicholas visitation with

D.C. every other weekend.

The temporary parenting plan was in effect until D.C. turned three. D.C. hit

all ofthe expected physical, emotional, and developmental milestones during this

time. D.C. was a happy, healthy child with a pleasant demeanor, not showing

violent tendencies. And, D.C. was potty trained.

The permanent parenting plan went into effect December 30, 2010. The

permanent parenting plan was a "50/50" parenting plan. D.C. was to spend one

weekwith his mother and the nextwith hisfather. Major decisions regarding D.C.'s

education, nonemergency health care, and religious upbringing were to be made

jointly.

Despite the provision for joint decision making, Lisa and Nicholas were

unable to reach a joint decision about which school D.C. should attend for

kindergarten. The court had to resolve the dispute.

D.C. began to exhibit behavioral problems. D.C. struggled behaviorally in

daycare. D.C. was aggressive, he hid under tables in fear after getting in trouble,

he threw toys, and he hit teachers and other kids. And, D.C.'s potty training

reverted such that he was soiling himself frequently.

Lisa worked with D.C.'s school to try to improve D.C.'s behavior. Nicholas

would not assist in implementing any strategies to help improve D.C.'s behavior.
No. 73933-6-1/3

Because of the disputes between Lisa and Nicholas, and because of D.C.'s bad

behavior, Lisa sought to begin coparent counseling with Nicholas. Nicholas did

not voluntarily engage in the coparenting process and dodged Lisa's attempts to

talk about going to counseling. Lisa asked the court to order coparent counseling.

On July 24, 2012, the court ordered that Lisa, Lisa's current husband, Nicholas,

and D.C. participate in coparent counseling to address D.C.'s behavioral issues,

to reduce conflict, and improve communications between the parties. They began

coparent counseling in November 2012 during D.C.'s kindergarten year.

D.C. was suspended several times in kindergarten for being violent to

children and destroying school property. Reports from his kindergarten teacher

were that D.C. was unable to recover from having a bad day, he hit kids on the

playground, he hit teachers, he tooktoysfrom other kids, and he continued to wet

himself. His kindergarten teacher concluded that D.C. was abnormal for a boy his

age.

Lisa tried many strategies to improve D.C.'s behavior. She had him tested

for ADHD (attention deficit hyperactivity disorder), took D.C. to appointments with

his primary care physician, took D.C. for behavioral assessment at Seattle

Children's Hospital, and attended parent-teacher conferences.

Nicholas continued to resist coparent counseling. Nicholas resisted all

potential strategies to improve D.C.'s behavior. Nicholas withheld information in

coparenting sessions. And, D.C.'s negative behavior continued. As a result, the

coparenting counselor, Dr. Alysa Ruddell, wrote a letter on April 30, 2013,

suggesting that D.C. should have more stability in his home life. She suggested
No. 73933-6-1/4

that D.C. reside with only Lisa for six weeks, with only visits with Nicholas. She

also suggested that D.C. begin counseling with a child therapist. Nicholas

opposed the idea of D.C. beginning individual counseling.

In order to carry out Dr. Ruddell's recommendation, Lisa filed a petition for

modification of the parenting plan on May 17, 2013. The petition and attached

declaration stated that a 50/50 parenting plan was not appropriate because of

continuing conflict between the parties. It stated that Lisa tried to decrease the

conflict through coparent counseling, but Nicholas has resisted and undermined

the process. It further stated that D.C. was exhibiting disturbing and violent

behavior and that other interventions had already been attempted without success.

And, it highlighted Nicholas's refusal to allow D.C. to participate in individual

counseling. It also highlighted why D.C.'s home life would be more stable with

Lisa than with Nicholas. Lisa requested that the court find adequate cause for

hearing the petition to modify the parenting plan.

After filing the petition for modification of the parenting plan, Lisa became

concerned that Nicholas had sexually abused D.C. On May 31, 2013, D.C. had a

very bad day at school. D.C. bit a child so hard, it made the other child bleed, and

he ran away when stafftried to talk to him. Later that day, at home, Lisa found

D.C. in the bathroom with his finger in his bottom covered with feces. Shortly

thereafter, Lisa asked D.C. why he had been angry at school. And, she asked

D.C. questions about whether Nicholas was sexually abusing him. D.C. made a

disclosure that Nicholas touched him with his penis. Lisa recorded D.C. making
No. 73933-6-1/5

his statements. Later that night, Lisa contacted the police and called Child

Protective Services (CPS).

Lisa filed an ex parte restraining order against Nicholas on June 4, 2013.

She asked for a restraining order until Nicholas completed a forensic interview and

asked for an investigation by a Guardian Ad Litem (GAL). The trial court entered

a temporary restraining order that same day.

In the wake of D.C.'s initial alleged disclosure to his mother, both law

enforcement and CPS investigated the sexual abuse allegations. During an

interview through the Kent Police Department, D.C. stated that Nicholas had

"touched his peter to my peter." And, D.C. defined "peter" as the "private part he

goes pee out of."

The Kent Police Department ultimately declined to prosecute, because it did

not have enough evidence. D.C. was five at the time and was unable to expand

in more detail. And, Nicholas declined to take a polygraph test during the

investigation. CPS ultimately closed the case, because it was concerned that Lisa

was coaching D.C. by asking him questions about potential sexual abuse and by

recording D.C. making the statements. CPS noted that despite its closing the

case, D.C. was safe because he spent his time with mandatory reporters, that

there was a GAL appointed, and that Lisa had already initiated a modification

proceeding regarding the current parenting plan.

After that incident, D.C. made three additional disclosures of sexual abuse.

He made one disclosure at the YMCA. He claimed that his cousin had sexually

abused him and that his parents refused to intercede. And, he made two other
No. 73933-6-1/6

disclosures of sexual abuse to his licensed family therapist, Amy Crook. He made

the first disclosure during his first session with Crook. D.C. said that his father

touched "my peter with his peter." After several more therapy sessions, D.C.

described the abuse in more detail. D.C. stated that Nicholas put his "peter" and

hisfinger inside D.C.'s butt. Crook eventually diagnosed D.C. with posttraumatic

stress disorder(PTSD). And, she concluded that D.C.'sbehaviorswere consistent

with children who have been the victims of sexual abuse.

D.C. started first grade in September 2013, after about three months of nocontact with Nicholas. At the beginning of the school year, D.C.'s behavior had

not improved, and it was still very disruptive. D.C.'s poor behavior continued

through January 2014. Starting in February 2014, D.C.'s behavior in school

improved tremendously. He no longer threw fits, and he was able to get his work

done. While he was still struggling, the degree ofviolence had lessened, and he

was more emotionally stable.

Trial commenced on Lisa's petition to modify the parenting plan in June

2014. On July 11, 2014, the trial court ordered that the parenting plan bemodified

because of a substantial change of circumstances and because the modification

was in the best interests of the child. The trial court entered findings supporting its

decision based both on the sexual abuse allegations and based upon the ongoing

conflict between Lisa and Nicholas.

The trial court also entered the final parenting plan on July 11, 2014. It

stated that D.C. should have no contact with Nicholas until Nicholas satisfied

several requirements. Specifically, the court ordered Nicholas to undergo a
No. 73933-6-1/7

psychosexual evaluation within 90 days, including a polygraph evaluation. Itstated

that Nicholas could voluntarily undergo a plethysmograph, but that the court would

not require one. The court stated that after the psychosexual evaluation is

completed, there would be a review hearing to determine whether contact with

D.C. should be restricted permanently. But, if the court believes contact with

Nicholas should resume, Nicholas should work with a reunification therapist and

Crook to develop a reunification plan with D.C. Because of the modification of the

parenting plan, the trial court also ordered that Nicholas pay child support.

Nicholas moved for reconsideration on both July 21, 2014 and September

8, 2014 arguing, among other things, that Lisa coached D.C. to make the sexual

abuse allegations and that the trial court's decision was not based on concrete

evidence that he abused D.C. The trial court denied both motions. Nicholas

appeals.

DISCUSSION

Nicholas makes several arguments on appeal. He argues that the trial court

erred when it modified the parenting plan. He appears to base this argument on

the fact that there is not substantial evidence in the record supporting a finding of

sexual abuse. Consequently, he asserts that the trial court should have ordered

that he be psychosexually evaluated prior to entering a finding of sexual abuse.

He further argues that the trial court erred when it considered inadmissible

evidence in the modification hearing. And, he contends that his constitutional

rights were violated when he was ordered to undergo a psychosexual evaluation.

Finally, he contends that he is entitled to attorney fees on appeal.
No. 73933-6-1/8

Nicholas first argues generally that the trial court erred when it modified the

original parenting plan. Changes in where children reside a majority of the time

are viewed as highly disruptive to children, and there is a strong presumption in

favor of continuity and against modification. In re Marriage of McDole, 122 Wn.2d

604, 610, 859 P.2d 1239 (1993). Nonetheless, trial courts are given broad

discretion in matters dealing with the welfare of children, jd. Atrial court's decision

will not be reversed on appeal unless the court exercised its discretion in an

untenable or manifestly unreasonable way. jd Parenting plan modifications

require a two-step process that is outlined in RCW 26.09.260 and .270. In re

Marriage of Zigler, 154 Wn. App. 803, 809, 226 P.3d 202 (2010).

I. Adeguate Cause Reguirement for Modification Met

First, a party moving to modify a parenting plan must produce an affidavit

showing adequate cause for modification before the court will permit a full hearing

on the matter. RCW 26.09.270. The information considered by the trial court in

deciding whether a hearing is warranted should be new information that was not

considered in the original parenting plan. Zigler, 154 Wn. App. at 809. The court

shall deny the motion without a hearing unless the affidavit establishes "adequate

cause" to set a hearing. In re Marriage of Lemke. 120 Wn. App. 536, 540, 85 P.3d

966 (2004). At the very minimum, "adequate cause" means evidence sufficientto

support a finding on each fact that the movant must prove in order to modify. Id.

In this case, Lisa's declaration had to support findings (1) that there was a

substantial change in the circumstances of D.C. and/or Nicholas since the entry of

the original parenting plan and that the modification is in D.C.'s best interests and

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No. 73933-6-1/9

(2) that D.C.'s environment under the parenting plan—the split between the two

parents' homes—was detrimental to his physical, mental or emotional health and

the harm likely to be caused by a change in environment was outweighed by the

advantage of a change. RCW 26.09.260(1); RCW 26.09.260(2)(c); see Lemke,

120 Wn. App. at 540-41.

We review a trial court's RCW 26.09.270 adequate cause determination

based on submitted affidavits for abuse of discretion. In re Parentage of Jannot,

149 Wn.2d 123, 126, 65 P.3d 664 (2003).

Lisa filed her petition on May 17, 2013 based on the fact that she and

Nicholas had a continuing conflict, Nicholas refused to engage in coparenting,

Nicholas refused to allow D.C. to begin individual counseling, and that she could

provide a more stable environment for D.C. Lisa included her declaration with the

petition. In it, she described how D.C.'s behavior negatively changed after the

parenting plan was entered in December 2010. She described how she sought to

engage in coparent counseling to work out issues with Nicholas and because of

D.C.'s behavioral issues. She stated that Nicholas resisted and undermined the

counseling and potential individual counseling for D.C. Her declaration outlined

the escalation of D.C.'s bad behavior in the months prior to filing the petition. And,

she stated that their coparenting counselor recommended that D.C. reside with

only Lisa on a trial basis. She stated that Nicholas' resistance to and lack of

cooperation with helping D.C. was preventing her from getting D.C. counseling.

Finally, she stated that Nicholas' home is very unstable. Nicholas had changed

residences at least three times in the previous year. And, because Nicholas has
No. 73933-6-1/10

to wake up incredibly early for work, D.C.'s sleep schedule was very different at

Nicholas' home than at hers. Lisa also informed the trial court that Nicholas had a

roommate who, at some point, shared a room with D.C. And, she explained that

now D.C. sleeps with Nicholas. She concluded that living with her full time would

provide D.C. more stability and help put him on the right track. On August 5, 2013,

the trial court concluded that adequate cause for hearing Lisa's petition had been

established.

Lisa's declaration clearly outlines substantial changes in circumstances

since the entry of the parenting plan—changes in D.C.'s behavior and changes in

Nicholas' living situation. And, the onset of the split living arrangements coincided

with D.C.'s behavioral difficulties and was detrimental to his emotional health. We

conclude that, based on Lisa's declaration, even before any allegations of sexual

abuse surfaced, the trial court did not abuse its discretion when it made a finding

of adequate cause to warrant a full hearing on the petition for a modification.

II. Requirements for Modification Met

Under the second step of the modification process, if the moving party

establishes adequate cause and the court holds a full hearing, the court may then

modify the existing parenting plan if it finds that (1) a substantial change occurred

in circumstances as they were previously known to the court, (2) the present

arrangement is detrimental to the child's health, (3) modification is in the child's

best interests, and (4) the change will be more helpful than harmful to the child.

RCW 26.09.260(1), (2)(c).

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No. 73933-6-1/11

Here the trial court found that all of the factors were satisfied. By the time

the trial commenced in June 2014, the sexual abuse allegations and evidence had

been brought to the fore. The trial court took into consideration the conflict

between Lisa and Nicholas, that D.C. demonstrated signs of being sexually

abused, and that D.C. has significant emotional and behavioral issues requiring

counseling. But, the trial court predominantly relied on the sexual abuse to satisfy

the four factors required to modify. Thus, Nicholas focuses his arguments on

attacking both the quality and the quantity of the evidence supporting the finding

of sexual abuse.

First, Nicholas makes several arguments challenging the evidence

submitted during the modification hearing. He challenges the specific evidence

ostensibly to support his argument that substantial evidence does not support the

trial court's finding of sexual abuse.

There is no physical evidence of sexual abuse in the record. All of the

evidence related to sexual abuse that surfaced during the modification hearing was

through Lisa's testimonyand the testimonyofcounselors, therapists, and teachers.

Much of that testimony repeated statements D.C. made to them. As such,

Nicholas argues the trial court erred when it admitted hearsay from the family

coparenting counselor, Dr. Ruddell, and "others." And, he argues that the trial

court erred when it considered Lisa's hearsay testimony. But, Nicholas did not

object to the admission of hearsay testimony below. It iswell settled that objections

to evidence cannot be raised for the first time on appeal. RAP 2.5(a); Sepich v.

Dep't of Labor & Indus.. 75 Wn.2d 312, 319, 450 P.2d 940 (1969).

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No. 73933-6-1/12

Nicholas also argues that Lisa and the other witnesses were not credible.

While we will review the trial court's findings of fact for substantial evidence, this

court does not review the trial court's credibility determinations or weigh conflicting

evidence. In re Marriage of Rostrom, 184 Wn. App. 744, 750, 339 P.3d 185 (2014).

As such, any of Nicholas' challenges to the credibility of the witnesses are not

properly before us.

Because Nicholas has not successfully challenged any of the evidence

before the trial court,2 we may consider all of that evidence when determining

whether there was substantial evidence for the trial court to find that all four factors

needed for modification were satisfied (section 2.2 of the trial court's order).3

There was ample evidence at the modification hearing to support the trial

court's findings that a substantial change occurred in circumstances since entry of

the original parenting plan, that the present arrangement was detrimental to D.C.'s

health, that the modification was in D.C.'s best interests, and that a change would

be more helpful than harmful to D.C.

2 Nicholas also argues that the trial court violated his constitutional rights

when it modified his parental rights based upon inadmissible evidence. We need

not address this argument. See Cowiche Canyon Conservancy v. Boslev, 118

Wn.2d 801, 809, 828 P.2d 549 (1992) (declining to consider arguments not

supported by reference to the record or citation to authority).

3 Nicholas also contends that there is not substantial evidence in the record

supporting the finding in section 2.1 of the trial court's order modifying the

parenting plan. Section 2.1 states that the trial court had jurisdiction over the

proceeding, because the court had previously entered a parenting plan in the

matter and retained jurisdiction. The trial court previously entered a parenting plan

in this matter and that parenting plan is in the record. Therefore, there is

substantial evidence in the record to support that finding.

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No. 73933-6-1/13

First, there was testimony that D.C.'s behavior changed dramatically since

the entry of the permanent parenting plan. Lisa testified that prior to the entry of

the parenting plan, D.C. was a happy child with a pleasant demeanor. Lisa testified

that D.C.'s potty training reverted after the entry of the parenting plan and that D.C.

became more aggressive. D.C.'s teachers described D.C. as violent and

aggressive to other children. One teacher testified that D.C. destroyed school

property. . And, there was testimony that D.C.'s behavior improved significantly

when he had no contact with his father. Lisa testified that D.C.'s behavior is

"increasingly monumentally better." D.C.'s first grade teacher testified that D.C.

has improved both academically and behaviorally since she first started teaching

him. Specifically, she testified that D.C. does not throw fits anymore. It is also

worth noting that during the period of no contact with Nicholas, D.C. told Crook he

hates his father.

Secondly, there was testimony in the record that Nicholas was unwilling to

address D.C.'s behavioral problems. Lisa testified that Nicholas would not

voluntarily participate in coparenting counseling. She further testified that Nicholas

refused to talk about D.C.'s needs and was never involved in implementing any

decisions designed to improve D.C.'s behavior. Dr. Ruddell testified that Nicholas

would not cooperate in coparent counseling. One of D.C.'s teachers testified that

Nicholas constantly made excuses for D.C.'s behavior.

Moreover, there was testimony to support the trial court's finding of sexual

abuse. Crook testified that D.C made very specific and explicit disclosures to her

that Nicholas had sexually abused him. And, she concluded that D.C.'s aggressive

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No. 73933-6-1/14

behavior was consistent with the behavior of other sexually abused children. She

diagnosed D.C. with PTSD. She has worked with 20-25 children who have

confirmed experiences of sexual abuse. Even without any other evidence in the

record,4 the statements D.C. made to Crook combined with Crook's professional

opinion, constitutes substantial evidence to support the trial court's finding of

sexual abuse.

Because there was substantial evidence to support a finding of sexual

abuse, the trial court did not err when it entered its findings in section 2.2 of the

parenting plan. Even disregarding the evidence of sexual abuse, the evidence of

D.C.'s behavioral changes and Nicholas's unwillingness to cooperate would be

sufficient to satisfy the factors necessary for the modification of the residential

schedule and decision making elements of the parenting plan.

III. Other Errors During the Hearing

Nicholas argues that the trial court made two other errors during the

modification hearing. First he argues that the trial court erred by testifying in

violation of ER 605, ER 602, and ER 702. And, he argues that the trial court erred

when it applied the incorrect standard to RCW 26.09.260 modifications.5

4 Nicholas cites the GAL's preliminary report as evidence that there should

not have been a finding of sexual abuse. The GAL's preliminary report was not

admitted at trial. And, the GAL did not testify at trial. But, even if the GAL's

preliminary report were admitted at trial, Crook's testimony still constitutes

substantial evidence to justify a finding ofsexual abuse. This court does not weigh

conflicting evidence on appeal. Rostrom, 184 Wn. App. at 750.

5 Nicholas also assigns error to the trial court's modification of his child

support obligation subsequent to modifying the final parenting plan. But, Nicholas

does not provide any argument or authority to support this assignment of error. As

such, we do not consider it. See Emerson v. Weilep. 126 Wn. App. 930, 939-40,

110 P.35 214 (2005).

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No. 73933-6-1/15

A. Trial Court Testimony

Nicholas argues that the trial court erred, because it stated that the

allegations are false in only four percent of sexual abuse cases. He argues that

the trial court cannot testify as an expert pursuant to ER 602, ER 605, and ER 702.

And, he claims that the trial court had no evidence supporting its "testimony."

Nicholas provides no additional argument, authority, or citation to the record to

support his assertion.

An examination of the record indicates that Nicholas is likely referring to the

trial court's response to Nicholas's assertion that sexual abuse allegations are

often false. During his testimony, Nicholas stated, "This is a very hard thing to deal

with, because I know that this is an ongoing trend in the [cjourt system now that

people are falsely accused." Later, during its ruling, the court commented that

sexual abuse allegations are raised in less than five percent of child custody cases.

And, that it had not heard a case on its docket for two years where there were child

sexual assault allegations in a custody case.

ER 602 and ER 702 relate to the competency of a witness and do not apply

here. ER 605 prohibits a presiding judge at a trial from testifying in that trial as a

witness. Again, the judge was not testifying. The trial court made this statement

in the context of making its ruling. The judge was not serving as a witness or

"testifying." Moreover, to the extent the judge was commenting on his personal

experience in the court system, this was not improper. See Fernando v.

Nieswandt, 87 Wn. App. 103, 108-09, 940 P.2d 1380 (1997) (stating that a trier of

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No. 73933-6-1/16

fact may apply common sense to the facts of a dispute to make a decision as long

as the comments do not evidence bias, prejudice, or other impropriety).

B. Best Interests of the Child

Nicholas also argues that the trial court erred when it applied the "best

interests of the child" standard during the modification hearing. The court's primary

concern, when establishing or modifying parenting plans, is to ensure that the best

interests of the child are met. RCW 26.09.002; RCW 26.09.260(1); In re Marriage

of Stern, 57 Wn. App. 707, 711, 789 P.2d 807 (1990). Nicholas cites to no specific

discussion of how the court's consideration of the best interests of the child was

erroneous, other than the challenges to the adequacy of the evidence addressed

above. We find no error.

IV. Other Errors Related to the Final Order and Final Parenting Plan

Nicholas argues that the trial court erred when it ordered him to undergo a

polygraph and psychosexual evaluation. He also contends that the trial court erred

when it denied him any contact with D.C. Finally, he claims that the trial court

erred when it granted relief beyond what Lisa initially requested in her petition

(termination of visitation rights and findings of sexual abuse).

A. Psychosexual Evaluation and Polygraph

Nicholas argues that the trial court erred when it ordered him to undergo

both a

psychosexual evaluation and a polygraph. The trial court found that Nicholas

should undergo a psychosexual evaluation with a polygraph to determine the risk

of harm should he and D.C. have contact with each other in the future.

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No. 73933-6-1/17

Nicholas first contends that ordering the psychosexual evaluation after

making a finding of sexual abuse is backwards—the evaluation should go first.

But, as discussed above, Crook's testimony combined with D.C.'s behavior

provided the trial court with substantial evidence to enter its finding of sexual

abuse. Crook testified that D.C. stated several times that Nicholas touched him in

a sexually inappropriate manner. The trial court then appropriately ordered

limitations reasonably calculated to address that identified harm. See RCW

26.09.191(2)(m)(i) (stating that the trial court may impose limitations that are

reasonably calculated to protect the child from the sexual abuse or harm that could

result, such as supervised contact between the child and the parent or completion

of relevant counseling or treatment). And, Nicholas provides no authority

indicating that a psychosexual evaluation is necessary before the trial court may

make a finding of sexual abuse.

Nicholas also argues that psychosexual evaluations are unconstitutional.

He cites to In re Marriage of Ricketts, 111 Wn. App. 168, 43 P.3d 1258 (2002) to

support his assertion. In Ricketts, the trial court granted a motion for a

psychosexual evaluation, which included an order for a father's penile

plethysmograph examination. Id at 170-71. The Ricketts court concluded thatthe

trial court abused its discretion when it ordered the father to submit to a

plethysmograph examination, because the record revealed no finding of a

compelling interestthat outweighed the father's liberty interest, jd. at 173.

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No. 73933-6-1/18

Ricketts is distinguishable from this case, because the trial court here

explicitly did not order a plethysmograph. Ricketts does not stand for the

proposition that psychosexual evaluations are generally unconstitutional.

Therefore, Nicholas provides no authority for his assertion that a psychosexual

evaluation, without a plethysmograph, is unconstitutional on these facts.

Nicholas also objects to the polygraph requirement of the psychosexual

evaluation. He supports this assertion by arguing that polygraphs are not

admissible evidence. In so arguing, he cites the unpublished portion of a criminal

case that is factually inapposite. State v. Fisher ,184 Wn. App. 766, 338 P.3d 897

(2014), review granted, 183 Wn.2d 1024 (2015). A party may not cite as an

authority an unpublished opinion of the Court of Appeals. GR 14.1. Therefore,

Nicholas has provided no authority to support his assertion that the trial court erred

when it ordered him to take a polygraph in this context.

B. Contact With D.C

Nicholas argues that the trial court erred when it denied him any contact at

all with

D.C. But, the trial court did not permanently deny Nicholas contact with D.C.

Rather, the trial court stated that before contact could be reestablished Nicholas

must undergo a psychosexual evaluation. The court specifically stated that

depending upon the results of the psychosexual evaluation, the court would

determine ifthere should be therapeutic reunification counseling. Because of the

trial court's finding of sexual abuse, the trial court stated that Nicholas could

resume visitation after demonstrating that he is not a risk to D.C. by undergoing

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No. 73933-6-1/19

the psychosexual evaluation. We conclude this limitation was reasonably

calculated to address the finding of sexual abuse. See RCW 26.09.191 (2)(a);

RCW 26.09.191 (2)(m)(i).

C. Ordering Additional Relief

Nicholas contends that the trial court erred, because Lisa's original petition

to modify the parenting plan did not request the relief the trial court actually

awarded in the final parenting plan—that Nicholas' residential time with the child

shall be limited or restrained completely and that mutual decision making was no

longer required He observes that Lisa did not amend her original petitionto modify

it to include allegations of sexual abuse. This alleged error is meritless. Nicholas

does not make any argument related to this fact. Nor does he provide any relevant

authority indicating that the trial court erred when it granted Lisa's relief

notwithstanding her failure to amend her original petition. Consequently, we do

not review this challenge. See Cowiche Canyon Conservancy v. Boslev, 118

Wn.2d 801, 809, 828 P.2d 549 (1992) (declining to consider arguments not

supported by reference to the record or citation to authority).

V. Attorney Fees

Both parties argue that they are entitled to attorney fees on appeal.

Nicholas argues that he is entitled to attorney fees pursuant to RCW

26.09.260(13). That statute states that if the court finds that a motion to modify a

parenting plan has been brought in bad faith, the court shall assess the attorney

fees and court costs of the nonmoving parent against the moving party. While this

court has the inherent jurisdiction to award attorney fees on appeal when a statute

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No. 73933-6-1/20

authorizes attorney fees in the trial court, we have no reason to conclude that Lisa's

petition to modify was brought in bad faith. See In re Marriage of Clark, 112 Wn.

App. 805, 810, 51 P.3d 135 (2002). Nicholas is not entitled to attorney fees on

appeal.

Lisa argues that she is entitled to attorney fees pursuant to RAP 18.1 and

RCW 4.84.185 for having to defend against a frivolous appeal. No request was

made under chapter 26.09 RCW. Under RAP 18.9, we may award a respondent

attorney fees when a petitioner files a frivolous appeal. Skinner v. Holgate, 141

Wn. App. 840, 858, 173 P.3d 300 (2007). In determining whether an appeal is

frivolous we are guided by the following considerations: (1) a civil appellant has a

right to appeal under RAP 2.2; (2) all doubts as to whether the appeal isfrivolous

should be resolved in favor of the appellant; (3) the record should be considered

as a whole; (4) an appeal that is affirmed simply because the arguments are

rejected is notfrivolous; (5) an appeal isfrivolous if there are no debatable issues

upon which reasonable minds might differ, and it is so totally devoid of merit that

there was no reasonable possibility of reversal. Streater v. White, 26 Wn. App.

430, 434-35, 613 P.2d 187 (1980).

Lisa argues the appeal was frivolous, because Crook's testimony is clearly

admissible. Consequently, she argues that in light of D.C.'s disclosures to Crook,

any other issues were devoid of merit. But, even if Crook's testimony is clearly

admissible, Nicholas was still entitled to challenge whether her testimony

constituted substantial evidence to support the trial court's finding of sexual abuse

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No. 73933-6-1/21

under RAP 2.2. Consequently, Nicholas' appeal was not frivolous. We deny Lisa's

request for attorney fees on appeal.

We affirm.

WE CONCUR:

"7 •IdiM^.fip^

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