IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 73933-6-1 DIVISION ONE 

### UNPUBLISHED OPlNgJN 3
! Inthe Matter ofthe Marriage of LISA MERE CONKLIN, n/k/a/ CHRISTENSEN, Respondent,

v. NICHOLAS FREDERICK CONKLIN, Appellant. v£> c: 

### FILED: November9, 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 inthe 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
1We 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 halfyears 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 otherweekend. 

### The temporaryparenting plan was in effectuntil D.C. turned three. D.C. hit 

### all ofthe expectedphysical, emotional, anddevelopmental milestones during this time. D.C. was a happy, healthy child with a pleasant demeanor, notshowing violent tendencies. And, D.C. was potty trained. 

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

### permanentparenting plan was a "50/50" parenting plan. D.C. was to spend one weekwithhismotherand the nextwithhisfather. Majordecisions 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 toexhibitbehavioral problems. D.C. struggled behaviorally in 

## daycare. D.C. was aggressive, he hid undertables infearaftergetting introuble, he threw toys, and he hit teachers and other kids. And, D.C.'s potty training reverted such that he was soiling himselffrequently. 

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

### would not assistin implementing any strategies tohelp 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 courtto ordercoparent 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 hitteachers, he tooktoysfrom otherkids, and hecontinued to wet himself. His kindergarten teacher concluded thatD.C. was abnormalfor a boyhis
age. 

### Lisa tried many strategies to improve D.C.'sbehavior. She had him tested 

### forADHD (attention deficit hyperactivity disorder), tookD.C. to appointments with 

### his primary care physician, took D.C. for behavioral assessment at Seattle Children's Hospital, and attended parent-teacherconferences. Nicholas continued to resist coparent counseling. Nicholas resisted all 

### potential strategies to improve D.C.'sbehavior. Nicholas withheld information in coparentingsessions. 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 morestability in his home life. She suggestedNo. 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. Itstated 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 behaviorand thatotherinterventions 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 stablewith 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 formodification of the parenting plan, Lisabecame concerned that Nicholas had sexually abused D.C. On May 31, 2013, D.C. had a 

### verybad day atschool. D.C. bitachild so hard, itmade the otherchild bleed, and he ran away when stafftried totalk to him. Later thatday, 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. makingNo. 73933-6-1/5
his statements. Later that night, Lisa contacted the police and called Child Protective Services (CPS). 

### Lisafiled an ex parte restraining order against Nicholas on June 4, 2013. She asked for a restraining order until Nicholas completed a forensic interviewand 

### asked for an investigation by a GuardianAd Litem (GAL). The trial court entered
a temporary restraining orderthat 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 petertomy peter." And, D.C. defined "peter" as the"private parthe goes pee out of." 

### TheKentPolice Departmentultimatelydeclinedtoprosecute, becauseitdid 

### not have enough evidence. D.C. was five at thetime and was unabletoexpand in more detail. And, Nicholas declined to take a polygraph test during the 

### investigation. CPS ultimatelyclosedthecase, becauseitwas concernedthatLisa was coaching D.C. by asking him questions about potential sexual abuseand 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. Afterthat incident, D.C. made three additionaldisclosures of sexual abuse. He made one disclosure at the YMCA. He claimed that his cousin had sexually 

### abused him and thathis parents refused to intercede. And, he madetwo otherNo. 73933-6-1/6
disclosures ofsexual abuse to his licensed familytherapist, 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 concludedthat D.C.'sbehaviorswere consistent with children who have been the victims of sexual abuse. 

### D.C. startedfirstgrade in September2013,after about three months of nocontactwith Nicholas. At the beginning of the school year, D.C.'sbehavior 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 longerthrewfits, and hewas ableto gethiswork 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. OnJuly 11, 2014, thetrialcourtorderedthatthe parenting plan bemodified because of a substantial change ofcircumstances and because the modification was in the bestinterests of the child. The trial courtentered findings supporting its 

### decisionbased 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 aNo. 73933-6-1/7 psychosexual evaluationwithin 90 days, including a polygraph evaluation. Itstated that Nicholas could voluntarily undergo a plethysmograph, but thatthe courtwould 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, ifthe 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 childsupport. Nicholas moved for reconsideration on both July 21, 2014 and September 

### 8, 2014arguing, among otherthings, thatLisa 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 

### Nicholasmakes several arguments onappeal. Hearguesthat the trial court erred when itmodified the parenting plan. He appears to base this argument on the fact that there is not substantial evidence inthe 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 wereviolated when he was ordered to undergo a psychosexualevaluation. Finally, he contends that he is entitled to attorney fees on appeal.No. 73933-6-1/8
Nicholas first argues generally thatthe trial court erred when itmodified 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 ofcontinuity and against modification. Inre Marriage of McDole, 122Wn.2d 604, 610, 859 P.2d 1239 (1993). Nonetheless, trial courts are given broad discretion inmatters dealing withthe welfare ofchildren, 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 ofZigler, 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 

### showingadequate causeformodification before the courtwill 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, 154Wn. App. at 809. The court shall deny the motion without a hearing unless the affidavit establishes "adequate cause" to seta hearing. In re Marriage ofLemke. 120Wn. App. 536, 540, 85 P.3d 966 (2004). At the veryminimum, "adequate cause" means evidence sufficientto support a finding on each fact that the movant must prove inorderto modify. Id. In this case, Lisa's declaration had to supportfindings (1) that there was a 

### substantial change in the circumstances ofD.C. and/or Nicholas since the entry of the original parenting plan and that the modification is in D.C.'s best interests and

8No. 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 ofdiscretion. In re Parentage ofJannot, 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 amore stableenvironmentfor D.C. Lisa included herdeclaration withthe 

### petition. In it, she described how D.C.'s behavior negatively changed after the parenting plan was enteredin December2010. Shedescribed how she soughtto 

### engage in coparent counseling towork out issueswith Nicholas and because of D.C.'s behavioral issues. She stated that Nicholas resisted and undermined the 

### counseling andpotential individual counseling for D.C. Her declaration outlined the escalation of D.C.'s bad behaviorinthe months prior tofiling the petition. And, 

### she stated that theircoparenting 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 herfrom getting D.C. counseling. 

### Finally, she stated that Nicholas' home isvery unstable. Nicholas had changed residences at leastthree times in the previous year. And, because Nicholas hasNo. 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 herfull 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 onsetof the splitliving 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 ofsexual abuse surfaced, the trial court did not abuse its discretion when itmade a finding 

### ofadequate 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, ifthe moving party establishes adequate cause and the court holds a full hearing, the court may then 

### modify the existing parenting planifitfinds 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).

10No. 73933-6-1/11
Here the trial court found that all ofthe factors were satisfied. Bythe time the trial commenced inJune 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 thatsurfaced 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 ofhearsaytestimonybelow. Itiswell 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).

11No. 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 offact for substantial evidence, this courtdoes not review the trial court's credibility determinations orweigh conflicting evidence. Inre Marriage ofRostrom, 184Wn. 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 whetherthere was substantial evidence for the trial courtto find that all fourfactors 

### needed formodification 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'sfindings that a substantial change occurredin circumstances since entry of the original parenting plan, that the present arrangement was detrimental to D.C.'s health, thatthe 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 matterand retainedjurisdiction. The trial court previously entered a parenting plan in this matter and that parenting plan is in the record. Therefore, there is substantial evidence inthe record to supportthatfinding.

12No. 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 happychild with a pleasantdemeanor. Lisa testified that D.C.'s pottytraining reverted afterthe entry ofthe 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 firststarted teaching 

### him. Specifically, she testified that D.C. does not throw fits anymore. It is also worth noting that during the period of no contactwith 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 

### voluntarilyparticipate incoparenting counseling. Shefurther 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 incoparent counseling. One of D.C.'s teachers testified that Nicholas constantly made excuses for D.C.'s behavior. Moreover, there was testimony to supportthe trial court's finding ofsexual abuse. Crooktestified that D.C made very specific and explicitdisclosures to her 

### thatNicholas had sexually abused him. And, she concludedthatD.C.'s aggressive

13No. 73933-6-1/14
behaviorwas consistentwith the behavior ofother 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 itentered its findings in section 2.2 ofthe 

### parenting plan. Even disregarding the evidence ofsexual 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 ofthe 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 thatthe trial courterred 

### whenit applied the incorrect standard to RCW26.09.260modifications.5 4Nicholas cites the GAL's preliminary report as evidence thatthere 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 ifthe GAL's 

### preliminary report were admitted at trial, Crook's testimony still constitutes substantial evidenceto justify afinding ofsexual abuse. This courtdoes not weigh conflictingevidence on appeal. Rostrom, 184 Wn. App. at 750. 

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

### supportobligationsubsequentto modifying the final parenting plan. But, Nicholas does not provide any argumentor authority to supportthis assignmentof error. As such, we do not consider it. See Emerson v. Weilep. 126 Wn. App. 930, 939-40, 110 P.35 214 (2005).

14No. 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 courtcannottestify as an expertpursuantto 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 ofthe 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 histestimony, Nicholas stated, "This is a very hard thing to deal with, because Iknow that this is an ongoing trend inthe [cjourt system now that 

### people are falsely accused." Later, during its ruling, the court commented that sexual abuse allegations areraised inlessthan five percentofchild custody cases. And, that it had not heard a case on itsdocketfor twoyears wherethere were child sexual assault allegations in a custody case. ER 602 and ER 702 relateto the competency of a witness and do not apply here. ER 605 prohibits a presiding judge at a trial from testifying inthat trial as a witness. Again, thejudge 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

15No. 73933-6-1/16 fact may apply common sense to thefacts of a dispute to make a decision as long
as the comments do not evidence bias, prejudice, or other impropriety). B. Best Interests ofthe Child Nicholas also argues that the trial court erred when it applied the "best interests ofthe child" standard during the modification hearing. The court's primary concern, when establishing or modifying parenting plans, is to ensure thatthe best interests ofthe child are met. RCW 26.09.002; RCW 26.09.260(1); In re Marriage ofStern, 57 Wn. App. 707, 711, 789 P.2d 807 (1990). Nicholas citesto 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 ofthe 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 itordered him to undergo a 

### polygraph and psychosexual evaluation. He also contendsthat thetrial court erred when itdenied 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 ofsexual abuse). A. Psychosexual Evaluation and Polygraph 

### Nicholas argues that the trial court erred when itordered 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.

16No. 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 

### reasonablycalculatedtoprotectthechildfromthe sexual abuse orharmthatcould result, such as supervised contact between the child and the parent orcompletion 

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

### indicating that a psychosexual evaluation is necessarybefore thetrial court may make a finding ofsexual abuse. 

### Nicholas also argues that psychosexual evaluations are unconstitutional. He cites to Inre 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 plethysmographexamination. Idat170-71. TheRickettscourtconcludedthatthe 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 interestthatoutweighed the father'sliberty interest, jd. at 173.

17No. 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. Inso 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 ofthe Court ofAppeals. GR 14.1. Therefore, Nicholas has provided no authority to supporthis assertion thatthetrial court erred when itordered him to take a polygraph inthis context. B. Contact With D.C Nicholas argues thatthe trial court erred when itdenied 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 ofthe 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

18No. 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 Heobserves that Lisa did notamend heroriginal petitionto modify it to include allegations ofsexual abuse. This alleged erroris meritless. Nicholas does notmake any argumentrelated to this fact. Nordoes he provide any relevant 

### authority indicating that the trial court erred when it granted Lisa's relief notwithstanding herfailure 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 ifthe 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 ofthe nonmoving parentagainstthe moving party. While this court has the inherentjurisdiction to award attorneyfees on appeal when a statute

19No. 73933-6-1/20
authorizes attorneyfees inthetrial court, we have no reason to concludethatLisa'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 bythe following considerations: (1) a civil appellant has a 

### rightto 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 ifthere are no debatable issues uponwhich reasonable mindsmight differ, and it is so totally devoid ofmeritthat there was no reasonable possibility of reversal. Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980). 

### Lisaargues the appeal was frivolous, because Crook's testimony is clearly admissible. Consequently, she argues that inlight of D.C.'s disclosures to Crook, 

### any other issues were devoid ofmerit. But, even if Crook's testimony is clearly admissible, Nicholas was still entitled to challenge whether her testimony constituted substantial evidence to supportthe trialcourt's finding ofsexual abuse

20No. 73933-6-1/21
underRAP 2.2. Consequently, Nicholas' appeal was notfrivolous. We deny Lisa's requestfor attorney fees on appeal.
We affirm.

WE CONCUR:

"7 

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