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The Court of Appeals, Division II, recently held that the provisions of a written agreement that usurp a trial court’s statutory duty to review modifications to a parenting plan are invalid. Marriage of Coy, 39690-4-II. The court further rejected the practice of one parent acting as an arbitrator for parenting plan disputes.

Mark and Kristine Coy entered a permanent parenting plan for their two-year-old daughter, in 2002. In 2008, mediation resulted in a handwritten CR 2A to increase residential time for Mr. Coy. The CR 2A provided that, if Mr. Coy complied with a set of added requirements, he would receive additional residential time. The parties assigned Ms. Coy complete discretionary authority to determine whether Mr. Coy complied with the requirements.

After several months, Ms. Coy felt that Mr. Coy had failed to meet these requirements. Mr. Coy sought review in binding arbitration. The arbitrator agreed with Ms. Coy and entered findings of fact and conclusions of law. Mr. Coy moved for de novo review of the arbitrator’s orders in the trial court. The trial court denied the motion, in part because the parties had used “binding arbitration of their own volition.”

At the appeals level, Mr. Coy argued that under statutory provisions and case law, he had the right to a new review by a trial court of any result of a parenting plan dispute resolution process. Ms. Coy asserted that a trial court should only review the arbitrator’s findings and conclusions for whether she had abused her discretion in denying Mr. Coy additional time.

The court did not rule directly on either issue. Instead, it invalidated the CR2A, holding that parties cannot stipulate to a process that eliminates the trial court’s considerations of parenting plan modifications under the best interests of the child standard.

The statute that governs modification of parenting plans, RCW 26.09.260, requires that a trial court consider and make any modifications to a parenting plan based on what is in the best interests of the child. The Court of Appeals held that trial courts cannot delegate this authority for parenting plan modifications, and that any agreement, no matter how minor, “requires an independent inquiry by the trial court.”

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Division III of the Washington State Court of Appeals recently ruled in Scheib v. Crosby that granting protection orders under the Domestic Violence Protection Act (DVPA) are “special proceedings” that do not require the court to apply the civil rules for superior court.

Kourtney Scheib and Christopher Crosby began a relationship in 2009 that resulted in a pregnancy. Ms. Scheib had been residing with Mr. Crosby and his parents when she decided to move in with her own parents instead. When Ms. Scheib was at the bus station, Mr. Crosby repeatedly attempted to talk with her and “trailed after her,” which Ms. Scheib saw as “stalking” and felt frightened.

District court granted a temporary domestic violence protection order against Mr. Crosby, and issued a notice of proceeding. It then granted Mr. Crosby’s request to move the case to superior court.

At superior court, Mr. Crosby requested a continuance to depose Ms. Scheib. The court found that no right existed to depose a witness in a domestic violence protection order proceeding, reasoning that it was not a civil lawsuit where the civil court rules would apply. The court then granted a permanent protection order.

Mr. Crosby appealed, claiming that hearings under the DVPA were not special proceedings and so the superior court should have allowed him to depose Ms. Scheib under civil court rules. The Division III court looked to the statute, chapter 26.5 RCW, to determine what procedural rules applied, and determined that protection orders under DVPA are special proceedings not governed by civil court rules, such as the right to depose.

There is no definition in the court rules that define a special proceeding, so the court looked to case law for guidance. It found that where the legislature enacted a law that created a new proceeding or completely changed the remedy for a situation normally allowed by a civil action, it was a special proceeding.

The court concluded that protection orders under the DVPA are special proceedings, and that while a trial court may allow discovery as it would under civil court rules, such as depositions, it is under the discretion of the trial court. Therefore, the appellate court did not find that the trial court abused its discretion in not allowing Mr. Crosby to depose Ms. Scheib.

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The Washington State Court of Appeals, Div. III, Robinson v. Robinson, no. 27143-9, held recently that a party who is not living in Washington at the time it files a petition for dissolution, and does not have an immediate intent to live in Washington, cannot get divorced in Washington because the court lacks subject matter jurisdiction.

Subject matter jurisdiction refers to the court’s authority to hear a particular case. To have subject matter jurisdiction, the petitioner in a case must be domiciled in Washington. To be domiciled in Washington, the petitioner must 1) actually live in the state, and 2) intend to make their residence their home.

Here, the parties, Douglas and Juraluck Robinson  married in 1998 in Everett, Washington and lived here until 2004, when they sold their house, moved to Connecticut, purchased a home, and enrolled their son in school. The following January, Mr. Robinson filed for divorce in Lincoln Country, listing an address in Everett, WA, and listing his wife’s address in CT on the petition. He then obtained a default divorce.

Ms. Robinson filed for divorce in CT in June 2005, and testified that she was unaware of the proceedings in Washington, claiming that her signature had been forged. In July, Mr. Robinson filed a motion to dismiss in CT based on the decree in WA. In November, Ms. Robinson returned to Washington, and filed a motion to vacate the decree as well as a motion to change venue.

In response to Ms. Robinson’s motions, Mr. Robinson filed a declaration that stated: “I do not feel that the venue should be changed…as neither one of us were a resident of Washington state at the time the petition was filed,” and “[a]t no time during the proceedings were we residents of Washington State.” In her declaration, Ms. Robinson also stated that, “we were living in Connecticut…[but] it [has] always been my intention to return to Washington”.

The trial court considered the issue of subject matter jurisdiction, and found that Ms. Robinson had “failed to show sufficient proof that jurisdiction was improper.” On appeal, the court stated that it was Ms. Robinson’s burden to show that the family had changed residence to Connecticut, and that through the facts and testimony it was clear that both Mr. and Ms. Robinson had changed their residence to Connecticut and had not reestablished it in Washington.

The most important aspect of this holding is the distinction between a present and future intent to domicile in Washington in order to establish subject matter jurisdiction. The court found that even though Ms. Robinson was present in Washington during the time of the initial proceedings, and that she did intend to reside in Washington again sometime in the future, her intent was not a present intent. Therefore, neither she nor Mr. Robinson was a resident of Washington at any time during the dissolution proceedings, and thus the court lacked subject matter jurisdiction.

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A new case from Division I, Dependency of D.F.-M, Cause No. 63624-3-I, held that the Interstate Compact on the Placement of Children (“ICPC”) does not apply to a child’s placement with his/her parent.

The Compact establishes the legal framework for placing children from one state in a new home in a different state.  Per the terms of the compact, one state may request another state to accept placement of, or supervise, one of its dependent children.

The sending state must remain financially liable for the child.  The receiving state must certify that the proposed placement is not contrary to the interests of the child.

In this case, the State of Washington, Department of Social & Health Services, DSHS, took the child from the mother and placed him in temporary foster care.  It then filed a dependency petition in juvenile court.  The father, who lives in Oklahoma, responded to the petition and sought custody of the child.

DSHS then requested, per the procedure established by the ICPC, that Oklahoma accept the child for placement with the father.  Oklahoma then did a home study on the father.  The home study found fault with the father.  Oklahoma then refused to accept the child, based on the parenting deficits documented in the home study.

The father then addressed the deficits.  For example, he bought a car seat and took a parenting class.  However, Oklahoma still refused to accept the child.  The juvenile court eventually placed the child in Oklahoma with the father over the objections of Oklahoma and the child’s mother.

The mother appealed, arguing that, under the ICPC, a sending state could not place a child in a receiving state without the receiving state’s permission.  The father asserted that the ICPC did not apply.

The court of appeals affirmed, holding that the ICPC only applied to cases where the child was to be placed in foster care or some arrangement other than placement with a parent.

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The Division II court of appeals held recently that someone accused of domestic violence in a domestic violence protection order proceeding does not have a right to a trial by jury.

In 2008, the wife/mother, Tiffany Blackmon, filed a petition for a domestic violence protection order on her behalf and on behalf of her seven-year-old son against her estranged husband, Brian Blackmon.

The trial court issued a temporary order of protection and set a date for the return hearing.  The parties then continued the date of the return hearing a number of times and Mr. Blackmon filed a jury demand.

The trial court denied Mr. Blackmon’s jury demand.  The appellate court affirmed.  To reach its holding, the court first established that the right to trial by jury enshrined in the state Constitution was limited to those causes of action for which a jury was available when the Constitution was adopted in 1889.

At that time, a jury was available to hear a cause of action sounding in law, but not in equity.  The distinction between law and equity focuses on the relief sought.  Injunctive relief is equitable.  An injunction is a court order prohibiting a party from engaging in a particular behavior.  Most other kinds of relief sound in law.

The court of appeals then reasoned that a domestic violence protection order – which prohibits a party from having contact with the other party – is injunctive in nature and therefore sounds in equity, and therefore the prohibited party does not have a right to a trial by jury.

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A recent termination of parental rights case affirmed the trial court’s conclusion that the mother’s progress towards correcting her parental deficiencies was too little, too late.

In Welfare of A.G., L.S. cause # 27659-7-III consolidated with cause # 27660-1-III, the trial court concluded that “there is little likelihood that conditions will be remedied so that A.G. or L.S. could be returned to their mother in the near future.”
Termination of parental rights is a two-step process. First, the state must show that it has established the six statutory requirements by clear, cogent, and convincing evidence. Second, once those factors have been established, the state must show by a preponderance of the evidence that termination of parental rights is in the best interest of the child.

The six statutory factors are:

1. the child has been found dependent;

2. the court has entered a dispositional order;

3. the child has been removed from the custody of the parent for at least six months;

4. remedial services have been offered and/or provided;

5. there is little likelihood that the conditions will be remedied in the near future; and

6. that continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a permanent and stable home.

The factors at issue in this case were numbers five and six. The court explained that “near future” depends on the age and circumstances of the child, but that a parent’s inability to correct their deficiencies within one year creates a rebuttable presumption that the conditions will not be remedied.
The appellate court held that the trial court’s factual findings supported its conclusion that the state had established elements five and six.

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