IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting
and Support of: DIVISION ONE
O
Daniel Rainbow No. 74018-1- O
NATHAN BRASFIELD,
UNPUBLISHED OPINION
Appellant,
en
and co
LAUREN ELIZABETH RAINBOW,
Respondent. FILED: October 17, 2016
Dwyer, J. — Nathan Brasfield appeals four trial court orders: an order
modifying the parenting plan between Brasfield and Lauren Rainbow, an order
entering a permanent parenting plan, an order granting an extension of
Rainbow's existing order of protection against Brasfield, and an orderdenying
Brasfield's motion for partial summary judgment on the matter of attorney fees.
Finding no error, we affirm.
Brasfield and Rainbow met in 2008, began living together in 2009, and
were separated by June 2010. The parties have one child together, Daniel
Rainbow (Danny). After they separated, Brasfield and Rainbow orally agreed to
a parenting plan that provided Brasfield with shared parental responsibility over
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Danny. The oral agreement did not require either party to pay child support to
the other and, in exchange, Rainbow was given exclusive use of a car jointly
owned by the parties. In May 2012, Rainbow obtained a court order for child
support. In June of that year the parties agreed to a formal, temporary parenting
plan that provided Brasfield with shared parental responsibility over Danny.
In April 2014, Rainbow cooperated in an FBI investigation of Brasfield that
ultimately led to his arrest on April 22, 2014. Shortly after Brasfield's arrest, and
at least partially in response to Brasfield's conduct upon learning of her
cooperation with the FBI, Rainbow filed a pro se petition seeking a domestic
violence protection order (DVPO). The DVPO was entered on June 3, 2014.
Rainbow also petitioned for a modification to the parenting plan, seeking to
eliminate the rights to visitation and decision-making previously afforded to
Brasfield. Brasfield, represented by counsel, voluntarily agreed to the entry of
the June 3 DVPO, but later moved for summary judgment seeking a
determination that the incidents supporting issuance of the DVPO did not
constitute domestic violence as a matter of law. The motion, including a request
for an award of attorney fees, was denied.
In December 2014, the trial court appointed a guardian ad litem (GAL) to
represent Danny's interests and investigate specific issues for trial. On March
31, 2015, Brasfield entered a federal court guilty plea to being a felon in
possession of a firearm and was sentenced to 48 months in prison.
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In May 2015, Rainbow filed a petition seeking renewal of the June 2014
DVPO. In anticipation of trial, the court consolidated the petition to renew the
DVPO with the petition to enter a permanent parenting plan.
During trial, the court heard extensive testimony over five days. Rainbow,
Brasfield, Brasfield's parents, the GAL, and various lay witnesses all testified, as
did Rainbow's expert witness, Danny's therapist Jenna Genzale.
After trial, the court entered a number of factual findings and legal
conclusions, ruling that parenting restrictions pursuant to RCW 26.09.1911 were
appropriate. In reaching this conclusion, the court considered—but ultimately
rejected—suggestions made by the GAL, including the GAL's opinion that
Brasfield's parents were appropriate supervisors for Danny and that Danny would
benefit from visitation with his father during Brasfield's incarceration. The
permanent parenting plan entered by the court provides Brasfield no visitation
with Danny during his incarceration, and provides for professionally supervised
visits following his release. The trial court also entered an order renewing the
DVPO, with an expiration date of September 1, 2020. Brasfield appeals.
II
Brasfield challenges the trial court's admission of certain testimony and
exhibits.
We review a trial court's admission of evidence for abuse of discretion.
State v. Maqers, 164Wn.2d174, 181, 189P.3d 126(2008). An error in the
1RCW 26.09.191(1) and (2) requires the trial court to limit mutual decision-making and
residential time if a parent has engaged in domestic violence. Subsection (3) permits the court to
limit any provision ofthe parenting plan if it is in the child's best interests.
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admission of evidence requires reversal when the error is prejudicial. Carnation
Co. v. Hill. 115Wn.2d184, 186, 796 P.2d 416 (1990). An error is prejudicial if it
has a substantial likelihood of affecting the outcome of the case. Hill, 115 Wn.2d
at 186.
However, "[ejrror may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected, and ... a
timely objection or motion to strike is made, stating the specific ground of
objection." ER 103(a)(1). We may decline to review claims of errorwhich were
not raised in the trial court. RAP 2.5(a).
A
Brasfield first asserts that the trial court erred by admitting the expert
testimony of Genzale, a therapist Danny had seen prior to trial. The trial court
erred, Brasfield contends, because the judge never determined that Genzale was
qualified to testify as an expert and because Genzale's testimony was
inadequate given that she had never met Brasfield and never visited the prison in
which he was incarcerated.
"If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise." ER 702. "The facts ordata
in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing." ER
703. In determining whether expert testimony is admissible, trial courts are
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afforded broad discretion and rulings admitting or excluding such testimony will
not be disturbed on appeal absent an abuse of such discretion. In re Marriage of
Katare, 175 Wn.2d 23, 38, 283 P.3d 546 (2012). If the basis for admission of the
evidence is "'fairly debatable,'" we will not disturb the trial court's ruling. Grp.
Health Coop, of Puget Sound. Inc. v. Dep't of Revenue, 106 Wn.2d 391, 398,
722 P.2d 787 (1986) (quoting Walker v. Bangs. 92 Wn.2d 854, 858, 601 P.2d
1279(1979)).
At trial, before offering opinion testimony, Genzale testified to her
qualifications and education. Brasfield then objected to the admission of
Genzale's expert testimony on the ground that he had not received a summary of
her testimony prior to trial. This objection was overruled after the court
determined that Brasfield received a witness list identifying Genzale as an expert
witness and that Brasfield never requested a summary of her opinions. Genzale
then testified that she had diagnosed Danny with generalized anxiety disorder
and that it was her opinion that Danny might be harmed by visits to a prison.
Brasfield never objected to Genzale's qualifications to testify as an expert
regarding a diagnosis of generalized anxiety disorder. Nor did Brasfield object
on the basis that Genzale's testimony was factually premised on a basis not
authorized by ER 703.
On appeal, Brasfield asserts that the trial court erred by never ruling that
Genzale was qualified to testify as an expert. This assertion is without merit.
Brasfield did not object to Genzale's qualifications at trial and, consequently, the
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trial court was never called upon to rule that she was qualified to testify as an
expert.
Brasfield also asserts that Genzale's diagnosis and her opinion that it
would not be in Danny's best interests to visit his father in prison were based on
insufficient facts. This is so, he contends, because Genzale had never met
Brasfield and had never seen the visitation room in the prison where Brasfield is
incarcerated.
Brasfield did not object on this basis at trial. Therefore, we need not
entertain his objection on appeal. Brown v. Labor Ready Nw.. Inc.. 113 Wn. App.
643, 655, 54 P.3d 166 (2002). However, even ifwe did, Brasfield would not
prevail on the merits. Genzale testified that she diagnosed Danny with
generalized anxiety disorder based on 10 to 12 one-hour sessions with him,
providing her with sufficient information on which to base her diagnosis.
Brasfield's present assertions go only to the weight to be given to Genzale's
testimony, not to its admissibility. The trial court was free to credit Genzale's
testimony.
B
Brasfield next asserts that the trial court erred by relying on hearsay
evidence in rendering its findings of fact.
"A trial court's determination that a hearsay exception applies is judged on
an abuse of discretion standard." Magers, 164 Wn.2d at 187. An error in the
admission of evidence requires reversal when the error is prejudicial. Hi]!, 115
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Wn.2d at 186. An error is prejudicial if it has a substantial likelihood of affecting
the outcome of the case. Hill- 115 Wn.2d at 186.
A GAL may properly rely on hearsay evidence when making a
recommendation to the court. In re Guardianship of Stamm. 121 Wn. App. 830,
837, 91 P.3d 126 (2004). However, "[t]he GAL's testimony must not be used as
a vehicle to present and reiterate otherwise inadmissible hearsay." Stamm. 121
Wn. App. at 838.
Brasfield assigns error to the trial court's factual findings that there were
firearms in Brasfield's house that were "unlocked and/or otherwise [unsecured
from Danny" and "loaded guns in a duffle bag on the floor." The first of these
findings—that there were firearms in Brasfield's house that could have been
accessible to Danny—was based on the testimony of Brasfield's father. The
context of the trial court's opinion, however, makes it clear that the court was not
considering opinions expressed by Brasfield's parents for the truth ofthe matter
asserted but, rather, was opining on the suitability of Brasfield's parents as
potential supervisors for Danny. The trial court noted that Brasfield's father was
"surprised" when he learned that his son had firearms in an unlocked closet, but
that he still "does not believe Nate was reckless with Danny's safety." The trial
court found that Brasfield's mother displayed a similar disregard for Danny's
safety, noting that she was "unwilling to accept the undisputed facts about her
son and the dangerous situations to which Danny was persistently exposed."
The trial court found particularly troubling Brasfield's mother's testimony that she
refused to reveal to Rainbow where Brasfield was living because she did not
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want to break her word to her son—testimony that showed that she is "willing to
put her 'word' to her son above the safety and well-being of Danny." The
testimony of Brasfield's parents formed part of the court's determination that they
were unsuitable supervisors and was not inadmissible evidence when considered
for that purpose.
With regard to the trial court's finding that the FBI located "loaded guns in
a duffle bag on the floor," however, the trial court did consider inadmissible
hearsay evidence. As an initial matter, this finding is not supported by the record
before us. Rather, the finding is supported by the FBI report and the GAL report,
neither of which were admitted at trial for the truth of the statements therein.2
The FBI report identified various guns and drug paraphernalia discovered in
Brasfield's home. The GAL report contained hearsay statements regarding what
the FBI found in Brasfield's home. Thus, although the trial court did not admit
either report for the truth of the matters stated therein, its findings relied on those
reports for that purpose.
Nevertheless, there is no possibility that this error affected the outcome of
the case. Substantial evidence supports the trial court's other factual findings
and the facts found amply support the court's conclusions.
Ill
Brasfield next contends that the trial court abused its discretion by
concluding that RCW 26.09.191 restrictions in the permanent parenting plan
2The trial courtadmitted the FBI report into evidence to show Rainbow's motive for
seeking a DVPO and parenting plan, not for the truth of the matters asserted therein.
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No. 74018-1-1/9
were appropriate. This is so, he asserts, because the trial court's finding of
domestic violence, warranting the restrictions in the parenting plan, was not
supported by substantial evidence.
We review a trial court's ruling entering a parenting plan for abuse of
discretion. In re Marriage of Kovacs. 121 Wn.2d 795, 801, 854 P.2d 629 (1993).
A court abuses its discretion if its decision is manifestly unreasonable or based
on untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-
47, 940 P.2d 1362 (1997). A decision is manifestly unreasonable "if it is outside
the range of acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual findings are unsupported
by the record; it is based on untenable reasons if it is based on an incorrect
standard or the facts do not meet the requirements of the correct standard."
Littlefield, 133 Wn.2d at 47. We do not review the trial court's credibility
determinations or weigh conflicting evidence. In re Marriage of Rich. 80 Wn.
App. 252, 259, 907 P.2d 1234 (1996). "Findings offact supported by substantial
evidence, i.e., evidence sufficient to persuade a rational person of the truth of the
premise, will not be disturbed on appeal." State ex rel. J.V.G. v. Van Guilder.
137 Wn. App. 417, 423, 154 P.3d 243 (2007).
A
Brasfield asserts that substantial evidence did not support the trial court's
conclusion that Brasfield's actions toward Rainbow constituted domestic
violence, as defined by statute.
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"Substantial evidence exists so long as a rational trier of fact could find the
necessary facts were shown by a preponderance of the evidence." In re Welfare
ofA.W.. 182 Wn.2d 689, 711, 344 P.3d 1186 (2015). "The fact that the evidence
may be subject to different interpretations does not authorize this court to
substitute its findings for those of the trial court." Peter L. Redburn. Inc. v. Alaska
Airlines. Inc., 20 Wn. App. 315, 318, 579 P.2d 1354 (1978).
In adopting a parenting plan, the trial court must consider a variety of
applicable provisions in the Parenting Act, including RCW 26.09.191, which sets
forth a number of limiting factors that require or permit restrictions of a parent's
actions or involvement with a child. Littlefield. 133 Wn.2d at 52. "[T]he court may
not impose limitations or restrictions in a parenting plan in the absence of
express findings under RCW 26.09.191." In re Marriage of Katare. 125Wn. App.
813, 826, 105 P.3d 44 (2004). "Mere accusations, without proof, are not
sufficient to invoke the restrictions under the statute." In re Marriage of Caven,
136 Wn.2d 800, 809, 966 P.2d 1247 (1998).3
Pursuant to RCW 26.09.191(1) and (2), a trial court is required to limit a
parent's residential time with the children if that parent has engaged in certain
conduct, including having "a history of acts of domestic violence as defined in
RCW 26.50.010(1)."
Domestic violence is defined as:
(a) Physical harm, bodily injury, assault, or the infliction offear of
imminent physical harm, bodily injury or assault, between family or
3Brasfield wrongly contends thatsuch restrictions must be reviewed pursuant to a strict
scrutiny analysis. To the contrary, a parenting plan that "complies with the statutory requirements
to promote the best interests of the children" does not violate either parent's constitutional rights.
Katare, 125Wn. App. at 823 (holding that a strict scrutiny analysis was notappropriate).
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No. 74018-1-1/11
household members; (b) sexual assault of one family or household
member by another; or (c) stalking as defined in RCW 9A.46.110 of
one family or household member by another family or household
member.
RCW 26.50.010(1).
Although "a history of acts of domestic violence" is not defined, the phrase
"was intended to exclude 'isolated, de minimus incidents which could technically
be defined as domestic violence.'" In re Marriage of C.M.C.. 87 Wn. App. 84, 88,
940 P.2d 669 (1997) (quoting 1987 Proposed Parenting Act, Replacing the
Concept of Child Custody, Commentary and Text 29 (1987)), affd, 136 Wn.2d
800, 966P.2d 1247(1998).
At trial, both Rainbow and Brasfield testified as to their personal history
and experiences co-parenting Danny. In her testimony, Rainbow conceded that
Brasfield had never attempted or carried out any actual physical violence against
her or Danny.
Rainbow did testify, however, to several incidences over the course of
their relationship that caused her to fear Brasfield. One such incident occurred
after a heated telephone call between Rainbow and Brasfield, in which Brasfield
demanded that Rainbow drop her demands for child support. Rainbow testified
that Brasfield threatened her and that she had called the police as a result,
stating, "Nate told me, quote, drop the child support or see what's coming to you.
Iresponded, are you threatening me? Nate responded, you figure that out, B-l-
T-C-H. Isaid, Nate you are not allowed to threaten me, I'm going to call the
police." Later that night, Brasfield sent an individual to Rainbow's house to take
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No. 74018-1-1/12
away the car—and all of Rainbow's personal property inside the car—without
Rainbow's knowledge or permission.
Later, Rainbow became aware of a Facebook posting in which Brasfield
had written, "[a]gain, it wasn't Laurens [sic] car. Her interest in it was void the
moment she failed to honor the agreement we had. Considering what she tried
to do, she's lucky that's all I did." (Emphasis added.)
Rainbow also became aware of an e-mail from Brasfield to his mother.
This e-mail included the following statements:
• "I can't parent Danny. I have way too much anger built up towards his
mom, and I don't see it ever going away."
• "If you decide to talk to Lauren, please tell her that Iwill not harm her. Tell
her that I've thought about it many times, and every time Ithink about it, I
have to decide if Danny's better off having a mom or a dad."
• About his sister, Brasfield wrote: "She's betrayed my trust, sent Lauren a
lot of stuff that was never meant for her to see, and quite possibly
provided Lauren with the evidence she needed to get the FBI to raid my
house. At this point, she's dead to me too."
At trial, Rainbow, pro se, questioned Brasfield regarding the incident with the
car:
Q: Do you recall a phone call in which we were discussing child
support in which you told me to drop the child support, or Iwould
see what was coming to me?
A: I don't believe that was the language I used. But I remember
talking to you about child support, demanding that you drop it, and
telling you that if you didn't, that you'd need to return the car.
Q: Okay. You do not recall saying, "see what's coming to you"?
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No. 74018-1-1/13
A: No, I don't.
Q: Okay. Do you remember me asking you if you were threatening
me?
A: Yeah, I do.
Q: Do you remember what your response was?
A: Yeah, I think my response was, "you figure it out".
Throughout the trial, Rainbow testified to her growing and continuing fear
for her life based on her interactions with Brasfield, stating, "[m]y continued fear
of Nate, even though he's in prison at this time, is that he certainly would not
hesitate to send someone over to hurt me," and "I have tried very hard, and it has
resulted in threats, and retaliation, and . . . now I have a fear for my life when it
comes to Nate Brasfield."
Rainbow was entitled to rely on her personal knowledge of Brasfield's
dangerous capabilities when she was confronted with threats and
demonstrations of force, including her knowledge of the reasons for his present
incarceration and previous felony convictions. Rainbow testified to multiple
incidences in which Brasfield lost his temper and destroyed his own and others'
personal property. Rainbow testified to multiple incidents in which Brasfield
endangered her life and the lives of others after losing his temper. Although
Brasfield often couched his threats in language indicating that he would not
follow through on them, Rainbow's own experiences with Brasfield reasonably
led her to fear otherwise.
Rainbow testified to a continuous fear of imminent harm. That Brasfield
was able to send someone to Rainbow's house in the middle of the night,
immediately after threatening her, demonstrates his capacity to have third parties
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do his bidding. Thus, his incarceration did not negate the danger he posed. The
multiple, serious threats to Rainbow's safety, along with Brasfield's demonstrated
ability to carry out those threats from a remote location, inflicted on Rainbow a
continuous fear for her safety—consistent with the statutory language of
"infliction of fear of imminent physical harm, bodily injury or assault." RCW
26.50.010(1). Although Brasfield disagrees with the trial court's finding that
Rainbow's testimony regarding her fear was credible, we do not reweigh the
evidence on appeal. Substantial evidence supports the trial court's
determination. There was no abuse of discretion.4
B
Brasfield further contends that the trial court erred by concluding that
visitation at the prison, even if supervised by Brasfield's parents, would not be in
Danny's best interests. He asserts that the trial court abused its discretion by
relying on witness testimony that conflicted with the GAL's findings. But the trial
court is free to credit or not credit evidence as it sees fit. There was no error.
The GAL's charge is to investigate the child and the family situation and
make recommendations.
In effect, she acts as a neutral advisor to the court and, in this
sense, is an expert in the status and dynamics of that family who
can offer a commonsense impression to the court. But the court is
also free to ignore the guardian ad litem's recommendations if they
are not supported by other evidence or itfinds other testimony
more convincing.
4The restrictions in the parenting plan entered by the trial court were entered pursuant to
RCW 26.09.191(1), (2), and (3). Because substantial evidence exists supporting the trial court's
findings of domestic violence—and a finding of domestic violence is alone sufficient to impose
RCW 26.09.191 restrictions in a parenting plan—we need not reach the trial court's other bases
for imposing the restrictions.
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Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380 (1997).
The GAL made a number of findings and recommended to the court that
Danny be allowed to visit his father in the prison's visitation room under the
supervision of Brasfield's parents.
The trial court found that visitation at the prison would be contrary to
Danny's best interests. In so concluding, the trial court credited testimony from
several individuals, including Genzale, Rainbow, and Danny's school principal,
Candace Mangum. The trial court also found, after hearing testimony from
Brasfield's parents, that Brasfield's parents were unsuitable supervisors for
Danny.
Contrary to Brasfield's assertions, substantial evidence supports the trial
court's findings, including the grandparents' own testimony. Although the trial
court considered the findings and recommendations of the GAL, the court was
not bound by the GAL's recommendations or evaluation of the facts. Fernando,
87 Wn. App. at 107. While Brasfield may not agree with the trial court's
assessment of the evidence, substantial evidence exists to support these
findings and we will not reweigh the evidence on appeal.
IV
A
Brasfield next argues that the DVPO extension entered by the trial court
must be vacated. This is so, he asserts, because the DVPO "mirrors" the
parenting plan restrictions and the existence ofa DVPO may not be the basis for
the terms of a parenting plan.
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Although it is true that the issuance of a DVPO cannot serve as the basis
for restrictive terms in a parenting plan, In re Marriage of Stewart. 133 Wn. App.
545, 554, 137 P.3d 25 (2006), there is no evidence that the reissued DVPO
herein affected the restrictions imposed in the permanent parenting plan ordered
by the trial court.
The trial court specifically acknowledged, in response to Brasfield's
objection, that a finding of domestic violence could not be predicated on the
existence of the DVPO. Indeed, the renewed DVPO here at issue incorporates
the restrictions found in the parenting plan, not the other way around. This is
unremarkable, given that the motions for modification of the parenting plan and
extension of the DVPO were consolidated for trial. There is no evidence to
support the assertion that the trial court relied on the existence ofthe DVPO to
support its finding ofdomestic violence as a basis for imposing RCW 26.09.191
parenting plan restrictions.
B
Brasfield also contends that the DVPO extension must be vacated
because it exceeds one year in duration. RCW 26.50.060(2) provides, "[i]f a
protection order restrains the respondent from contacting the respondent's minor
children the restraint shall be for a fixed period not to exceed one year."
Although a one-year limitation applies to initial protection orders, no such
limitation applies to renewals of protection orders issued pursuant to chapter
26.50 RCW. The pertinent statute provides,
If the court grants an order for a fixed time period, the petitioner
may apply for renewal of the order byfiling a petition for renewal at
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No. 74018-1-1/17
any time within the three months before the order expires. . . . The
court shall grant the petition for renewal unless the respondent
proves by a preponderance of the evidence that the respondent will
not resume acts of domestic violence against the petitioner or the
petitioner's children or family or household members when the
order expires. The court may renew the protection order for another
fixed time period or may enter a permanent order as provided in
this section.
RCW 26.50.060(3) (emphasis added). It does not follow that a trial court is
permitted to enter a permanent order upon renewal, but not an order with a five-
year durational period.
The DVPO in question was a renewal. The statute sets no durational
restrictions for renewals. The trial court did not err.
V
Brasfield contends that the consolidation of the parenting plan petition and
the DVPO petition into a single trial resulted in an unconstitutional denial of due
process.
Brasfield did not object to consolidation of the hearings in the trial court.
Nevertheless, he contends that review is appropriate because the trial court's
decision to consolidate the hearings was a manifest error affecting a
constitutional right, excusing his failure to raise the issue at trial.
RAP 2.5(a) provides that "[t]he appellate court may refuse to review any
claim of error which was not raised in the trial court. However, a party may raise
the following claimed errors for the first time in the appellate court: ... (3)
manifest error affecting a constitutional right." There are four steps in analyzing
an alleged constitutional error raised for the first time on appeal:
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"First, the reviewing court must make a cursory determination as to
whether the alleged error in fact suggests a constitutional issue.
Second, the court must determine whether the alleged error is
manifest. Essential to this determination is a plausible showing by
the defendant that the asserted error had practical and identifiable
consequences in the trial of the case. Third, if the court finds the
alleged error to be manifest, then the court must address the merits
of the constitutional issue. Finally, if the court determines that an
error of constitutional import was committed, then, and only then,
the court undertakes a harmless error analysis."
City of Seattle v. Heatlev. 70 Wn. App. 573, 585, 854 P.2d 658 (1993) (quoting
State v. Lynn. 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
In considering whether to issue a DVPO under chapter 26.50 RCW, courts
need not apply the rules of evidence. ER 1101(c)(4). However, under the
Parenting Act, courts must apply the rules of evidence when considering
restrictions in a parenting plan. RCW 26.09.191(6). Further, consolidation of a
hearing on a parenting plan with a hearing on a DVPO is expressly permitted
under RCW 26.50.025. Nevertheless, Brasfield contends that the trial court
relied on hearsay evidence in making its findings offact and, thus, consolidation
of the hearings was a manifest constitutional error that violated his right to due
process.
Essential to a determination of manifest constitutional error, providing the
basis for review under RAP 2.5(a)(3), is a plausible showing by the claimant that
the error had practical and identifiable consequences in the trial of the case.
Heatlev. 70 Wn. App. at 585. It is not sufficient when raising a constitutional
issue for the first time on appeal to merely identify a constitutional issue. "The
appellant must first make a showing how, in the context of the trial, the alleged
error actually 'affected' the defendant's rights. Some reasonable showing of a
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No. 74018-1-1/19
likelihood of actual prejudice is what makes a 'manifest error affecting a
constitutional right.'" Lynn. 67 Wn. App. at 346 (quoting RAP 2.5(a)(3)).
As discussed herein, although the trial court did consider some hearsay
evidence during trial, the admissible evidence credited by the court amply
supports the court's ruling. The consideration of some hearsay evidence did not
change the outcome of the trial and Brasfield has made no showing that the
consolidation of the hearings into a single trial had any practical and identifiable
consequences that affected the outcome. Thus, Brasfield has not shown a
manifest constitutional error that he may object to for the first time on appeal.
But Brasfield's claim has yet another fatal failing. Three distinct factors
must be considered when reviewing a due process claim:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute
procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
In asserting that an unconstitutional denial ofdue process resulted from
the consolidation of the hearings, Brasfield argues only the first of the three
Mathews factors: that Brasfield's interest in the care, custody, and control of
Danny is a fundamental liberty interest. Stanley v. Illinois. 405 U.S. 645, 651, 92
S. Ct. 1208, 31 L. Ed. 2d 551 (1972). However, Brasfield does not even attempt
to establish the remaining two factors, as required by Mathews. Rather, Brasfield
simply asserts that, because the court consolidated the hearings and then
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No. 74018-1-1/20
considered hearsay evidence, a denial of due process has necessarily resulted.
By failing to engage in a suitable analysis of the Mathews factors, Brasfield fails
to establish a due process claim.
VI
Finally, Brasfield requests an award of attorney fees pursuant to either
RCW 26.26.140, which authorizes an award of attorney fees to a prevailing party,
or RCW 26.09.260(13), which authorizes an award of attorney fees when a
motion to modify a parenting plan is found to be brought in bad faith. Because
we affirm the trial court's rulings, Brasfield's claim for relief fails.
Affirmed.
^ih
We concur:
4^,/
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