IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
o
In re the Marriage of: No. 68424-8-1 Co
NEHA WAS CHANDOLA, DIVISION ONE
Respondent,
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and ] —In
CTv
MANJUL VARN CHANDOLA, i UNPUBLISHED
Appellant. i FILED: Mav 13. 2013
Cox, J. — Primarily at issue in this appeal is the trial court's discretionary
authority to impose restrictions in the parenting plan between Manjul Varn
Chandola (Varn) and Neha Vyas Chandola (Neha).1 The trial court's findings of
fact are supported by substantial evidence and support the conclusions of law
that restrictions are proper. Moreover, there is no evidence that the trial court
based its decision on an improper basis. Finally, there is no showing of any
denial of either due process or equal protection. We affirm.
Varn and Neha were married in 1998. They lived with Varn's parents in
Arizona until they moved to the Seattle area in 2002. They are both attorneys.
1We adopt the naming conventions of the parties for clarity.
No. 68424-8-1/2
They have one young daughter, P.R.C., who was born in November 2008.
Both sets of her grandparents lived with the family at their house in Kent during
different periods of time and helped care for her.
In February 2011, Neha commenced this dissolution proceeding. Neha
told Varn that P.R.C. complained of vaginal pain and that Neha was concerned
about the possibility of sexual abuse. Varn agreed to Neha's request for a
temporary order requiring supervision during his visits.
A court-appointed parenting evaluator, Dr. Jennifer Wheeler, concluded
that there was insufficient evidence to indicate that Varn engaged in behavior
that would be consistent with sexual abuse. The supervised visitation was lifted
in December 2011, after mediation.
A seven-day bench trial took place in 2012. The central issue at trial was
the residential schedule and requested restrictions in the parenting plan. A
number of witnesses testified, including the parties, family members, friends of
the family, and P.R.C.'s doctor. Two parenting evaluators, one on behalf of each
party, also testified.
Based on the evidence and controlling law, the trial court ordered
restrictions and a residential schedule with three different stages to promote the
best interests of the child. The first stage consists of two visits with Varn every
week with one of those visits being an overnight visit every week. In the second
and third stages, P.R.C.'s time with Varn will increase, if Varn meets certain
conditions.
Varn appeals.
No. 68424-8-1/3
PARENTING PLAN
Varn argues that the trial court's restrictions in the parenting plan were not
supported by the findings. We disagree.
An appellate court will not retry the facts on appeal and will accept the trial
court's findings of fact as verities if they are supported by substantial evidence in
the record.2 "Substantial evidence is that which is sufficient to persuade a fair-
minded person of the truth of the matter asserted."3 This court does not review
the trial court's credibility determinations, nor does it weigh conflicting evidence.4
Decisions concerning the provisions of a parenting plan are reviewed for
abuse of discretion.5 "A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons."6
"A court's 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."7
* In re Marriage of Thomas. 63 Wn. App. 658, 660, 821 P.2d 1227 (1991).
3 In re Marriage of Katare. 175 Wn.2d 23, 35, 283 P.3d 546 (2012), cert-
denied. 133 S. Ct. 889, 184 L Ed. 2d 661 (2013).
4 In re Marriage of Rich. 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
5 In re Marriage of Littlefield. 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).
6 jd, at 46-47.
7 Id. at 47.
No. 68424-8-1/4
This court's review of whether the trial court's conclusions of law flow from
its findings is de novo.8
Adverse Effect on the Child's Best Interest
Varn argues that there were insufficient findings and no substantial
evidence to justify restrictions under RCW 26.09.191 (3)(g). We disagree.
RCW 26.09.191 (3)(g) is a discretionary provision that permits a trial court
to limit the terms of a parenting plan.9 This discretionary authority of the court is
conditioned on the existence of specific factors or conduct that the court
expressly finds adverse to the best interests of the child.10 "Imposing such
restrictions 'require[s] more than the normal... hardships which predictably
result from a dissolution of marriage.'"11
Here, the trial court found that Neha had established by a preponderance
of the evidence that restrictions under RCW 26.09.191 (3)(g) should be included
in the parenting plan. More specifically, the court made the following finding,
which is supported by substantial evidence:
The court finds that the father's parenting history has had an
adverse effect on the child's best interests pursuant to RCW
26.09.191 (3)(g). See Memorandum [Findings on Trial entered this
date and incorporated by reference.1121
8Watson v. Dep't of Labor & Indus.. 133 Wn. App. 903, 909,138 P.3d 177
(2006).
9 Katare. 175 Wn.2d at 36.
10 Id,
11 jd, (alteration in original) (quoting Littlefield. 133 Wn.2d at 55).
12 Clerk's Papers at 80.
No. 68424-8-1/5
The Memorandum Findings on Trial, which the trial court expressly
incorporated into the above, identified the factors and conduct of Varn that
the court found adverse to the best interests of the child:
Prior to separation the father consistently engaged in a
pattern of interaction with [P.R.C] which while loving, caring,
affectionate, enriching in an entertainment sense, and nurturing in
some respects, nonetheless lacked, in concerning degree,
objectivity with respect to her heaithy development. The
father was unwilling or unable to establish boundaries,
routines, schedules, and structure. He discouraged
exploration and independence. Varn may best be described
prior to separation as a doting father but ineffective parent. This is
not an entirely unusual situation but he also actively undermined
the mother's efforts to provide these essential parenting
components resulting in an imbalance that appears to have
had adverse consequences for the child. The court is unable to
conclude that it was the father's design to undermine the mother
but the consequences for the child are the same. It is telling that
subsequent to separation the child's behavior repertoire increased
dramatically .... As more than one lay witness observed since
separation "[P.R.C] is a changed child, more outgoing, interactive .
.,[13]
On appeal, Varn assigns error to five of the trial court's findings regarding
his parenting history. But, he only discusses two of these findings when he
challenges the trial court's determination that he was an "ineffective parent."
Thus, we need only address whether these two findings are supported by
substantial evidence.
First, the trial court found that Varn "discouraged [P.R.C.'s] exploration
and independence." A family friend, Rahul Gupta, testified that it appeared that
Varn did not want P.R.C. to explore and engage with other children and adults.
13
Id. at 92-93 (emphasis added).
No. 68424-8-1/6
A neighbor, Carol Johnston, testified that Varn would hold P.R.C. a lot and would
not let her get down and play. Another family friend, Anjulie Ganti, described
Varn as a "hovering" parent who was "always" holding P.R.C. and not letting her
explore. Gupta also testified that Varn wanted somebody to be in the room with
P.R.C. while she slept, and he refused to use a baby monitor.
Dr. Jennifer Wheeler was the court-appointed parenting evaluator. She
interviewed both parents, the child, and others in preparing her written evaluation
and recommendations to the court. At trial, she testified that Varn's constant
holding of P.R.C. was behavior that appeared to be "more about father's anxiety
about what might happen if he put her down and regulating his own anxiety
versus recognizing what's really best for her in that particular situation." Dr.
Marsha Hedrick, a parenting evaluator that Varn called on his behalf, agreed that
this behavior was problematic in terms of the child's best interests.
This evidence is sufficient to persuade a fair-minded person that Varn
"discouraged [P.R.C.'s] exploration and independence."
Second, the trial court found that Varn was "unwilling or unable to
establish boundaries, routines, schedules, and structure." Dr. Hedrick, who
reviewed Dr. Wheeler's report, testified at trial that Varn appeared to be "overly
permissive in his parenting" regarding P.R.C.'s eating and sleeping.
Neha's mother, Kuldeep , Johnston, and Ganti agreed that Varn did not
set routines or create structure around these activities. For example, they
explained that Varn and his mother would chase P.R.C. around the house
instead of feeding her at a table or in a high chair. Varn testified that he knew
No. 68424-8-1/7
that P.R.C.'s doctor recommended against giving P.R.C. a bottle of milk at night
as she got older, but he would almost never decline P.R.C.'s request for a bottle.
Neha testified that she was not able to implement a bedtime routine for P.R.C.
until September 2010 when Varn and his parents started to leave the house after
dinner.
Dr. Wheeler also testified that Varn was "very controlling" with "certain
things" like car seats and baby monitors, but "[w]hen it came to the schedule,
there was sort of this odd lack of structure and lack of control."
In sum, there is substantial evidence in this record to support the findings
that Varn "discouraged [P.R.C.'s] exploration and independence" and that Varn
was "unwilling or unable to establish boundaries, routines, schedules, and
structure."
Varn argues that his discouragement of P.R.C.'s "exploration and
independence" was not a problem at the time of trial. He points to Dr. Wheeler's
testimony that P.R.C. was playing with the visitation supervisor's son.
Nevertheless, the trial court was not convinced by his testimony that the "risks
and hazards of his parenting choices going forward" would continue to improve.
Thus, the trial court made a credibility determination, which this court does not
review.14
Varn contends that the professionals who testified at trial thought P.R.C.
had "always been a perfectly happy, healthy child, with normal development." A
fair reading of the entire record, however, shows that Dr. Wheeler,
14 In re Marriage of Rich. 80 Wn. App. at 259.
No. 68424-8-1/8
notwithstanding this observation, believed that parental behavior merited
restrictions. Thus, this argument fails.
Varn argues that Drs. Wheeler and Hedrick did not have "any concerns
about Varn's parenting [that] rose to a level requiring restrictions." This is
inaccurate.
The record reflects that Dr. Hedrick criticized Dr. Wheeler's report for
failing to tie her concerns about Varn to a basis for restrictions. But at trial Dr.
Wheeler testified that while restrictions were not justified based on domestic
violence, sexual abuse, or emotional impairment, she believed that Varn's
"abusive use of conflict" was a different basis for restrictions. Dr. Wheeler
admitted in her testimony that her written report did not "do an adequate job of
connecting the dots between what [her] concerns were and the limitations to the
schedule that [she was] recommending." But her testimony at trial was clear:
My authority for my opinion is that the personality traits that
I've been describing all morning in my opinion, the risk to [P.R.C]
of those traits is ongoing conflict that is essentially emotionally
abusive to her. And I do think that until those traits are better
regulated and [Varn is] able to interact with [P.R.C] in a way that
does not perpetuate this conflict and parent in a way that does not
continue to inflame this conflict, I do think that father is vulnerable
to engaging in abusive use of conflict. That supports generally why
I am limiting his residential schedule relative to what you just
referred to as the normal, typical kind of recommendation.115'
In any event, it is the ultimate responsibility of the court, not the experts, to
determine whether restrictions are required. The court did so here on the basis
15 Report of Proceedings (Jan. 31, 2012) at 305-06.
8
No. 68424-8-1/9
of all the evidence, including the testimony of both parenting evaluators. There
was no error in this respect.
Varn argues that it is common for parents to have different styles of
parenting, and courts must tolerate these different styles. He contends that the
trial court was "imposing [its] own preference regarding parenting style" because
his parenting style did not result in any "demonstrable harm" to P.R.C. This
argument ignores the record.
As discussed previously in this opinion, the findings of fact regarding
Varn's parenting history are supported by substantial evidence. Moreover, the
findings support the conclusion that his parenting had an adverse effect on
P.R.C.'s best interests. Thus, the trial court was properly acting under the
provisions of governing law, not imposing its own parenting style preference.
Varn argues that "[t]o illustrate the concern about imposing restrictions
without a sufficient showing of harm, one could easily make arguments for
restrictions against Neha as readily as Judge Doerty did against Varn." The
premise of this argument is incorrect.
We have already identified the adverse effect that Varn's actions had on
the child. In contrast, there is no showing that restrictions against Neha should
have been imposed. As Drs. Wheeler and Hedrick testified, they did not have
any serious concerns about Neha's parenting that would rise to the level of
requiring restrictions.
Finally, Varn argues that "the due process clause prohibits imposing
restrictions under RCW 26.09.191 without a showing that they are necessary to
No. 68424-8-1/10
avoid an identified harm to the child." He cites Troxel v. Granville16 to support
this assertion.
But as Varn acknowledges, this court has already rejected a similar
argument in In re Marriage of Katare.17 There, this court explained that Troxel
does "not support [the father's] argument that a parenting plan that complies with
the statutory requirements to promote the best interests of the children raises an
issue of constitutional magnitude or violates a parent's constitutional rights."18
Thus, this argument is not persuasive.
As noted above, Varn also assigned error to two other findings of fact.
The first is that Varn "lacked, in concerning degree, objectivity with respect to
[P.R.C.'s] healthy development." The second is that Varn "actively undermined
the mother's efforts to provide these essential parenting components resulting in
an imbalance that appears to have had adverse consequences for the child."
Varn fails to support these assignments of error with any argument or
persuasive authority. Thus, we need not address them.19
Restrictions
Varn argues that the restrictions in the parenting plan were not supported
by the findings. Specifically, he challenges three restrictions in the parenting
16 530 U.S. 57, 120 S. Ct. 2054, 147 L Ed. 2d 49 (2000).
17 125 Wn. App. 813, 105 P.3d 44 (2004).
18 ]d, at 823.
19 See State v. Johnson. 119 Wn.2d 167,171, 829 P.2d 1082 (1992).
10
No. 68424-8-1/11
plan. None of his challenges are meritorious. All of the restrictions are
reasonably calculated to address identified harm to the child.
"A trial court wields broad discretion when fashioning a permanent
parenting plan."20 But this discretion is guided by several provisions of the
Parenting Act of 1987, including RCW 26.09.191, which sets "forth factors which
require or permit limitations upon a parent's involvementwith the child."21 A
primary concern in establishing parenting plans is that parenting arrangements
serve the best interests of the child.22 This court has held that "[a]ny limitations
or restrictions imposed must be reasonably calculated to address the identified
harm."23
The first challenged restriction is the limit on Varn's time with P.R.C,
which is approximately 30 hours a week. Under the court's plan, this visitation
was scheduled to increase in length over three stages if Varn continued to
comply with certain requirements. This time restriction was supported by the trial
court's Memorandum Findings on Trial:
While it is cause for optimism that Varn has agreed to
parenting plan provisions that recognize the importance of
"[P.R.C.'s] set schedule for meal times, bed times, wake up times
etc.", his testimony failed to persuade this court that he appreciated
the down side of his approach before separation or the risks and
hazards of his parenting choices going forward. This assessment
of his testimony is consistent with Dr. Wheeler's concerns about his
20 Katare. 175 Wn.2dat35.
21 ]d, at 36.
22 See RCW 26.09.002.
23 Katare. 125 Wn. App. at 826.
11
No. 68424-8-1/12
difficulties with integrating data inconsistent with his view of reality.
It is therefore necessary to impose such restrictions as may best be
anticipated [to] assure the mother's parenting is not diluted by the
father. Certainly a "fifty/fifty" parenting plan would not accomplish
this.t24]
The time restriction in the residential schedule was a reasonable way to address
Varn's unwillingness or inability to establish boundaries, routines, schedules, and
structure; and help him develop objectivity with respect to P.R.C.'s development.
Varn argues that the evidence shows that he was "the primary parent
during much of P.R.C.'s life," and this fact does not support the time restriction.
But at trial, there was conflicting evidence whether Varn was the primary parent,
and the trial court did not make a finding as to this fact. In any event, such a
finding would not obviate the need for this restriction, given this record.
The second challenged restriction was that P.R.C. sleep in her own room
at Varn's house unless the case manager recommends otherwise. This
restriction was also supported by the trial court's findings which were, in turn,
supported by testimony at trial.
In the Memorandum Findings on Trial, the trial court found that Varn was
"unwilling or unable to establish boundaries, routines, schedules, and structure,"
which included P.R.C.'s sleeping routine. At trial, several witnesses' testimony
supported this finding. They testified that Varn interfered with P.R.C.'s sleeping
schedule by being in the same room as P.R.C. Neha testified that she felt like
P.R.C. was not getting enough sleep because Varn would hold her in the middle
of the night. Neha went on to explain:
24 Clerk's Papers at 93.
12
No. 68424-8-1/13
sometimes children have to be soothed to go back to bed, but he
would just randomly pick her up. At 2 in the morning, he's holding
her.... And I felt that the co-sleeping was more disruptive and it
wasn't healthy for her because she's not sleeping through the
night.1251
She also testified that Varn would show P.R.C. videos on the Internet until 1
a.m., which kept her from sleeping. Ganti's testimony corroborated this
statement.
Several witnesses also testified to other interruptions of P.R.C.'s sleep.
Ganti observed Varn's mom staying in the room while P.R.C. was sleeping. And,
though Ganti offered the family a baby monitor to use while P.R.C. slept, she did
not see the Chandolas use it. Johnston testified that P.R.C. often seemed
"cranky and tired." Dr. Wheeler testified that she would support a restriction that
would require that P.R.C. sleep in her own room if the parent trainer supported
this restriction.
In contrast, Varn testified that P.R.C. had a difficult time sleeping. He
asserts that she would go to sleep around 9 p.m. and then wake up again at 11
p.m., midnight, or 1 a.m. He testified it was his responsibility to help her get back
to sleep, and he would use different noises including music from Internet videos
to help her sleep.
Given the conflicting testimony of the parties regarding P.R.C.'s sleeping
schedule and the testimony of Dr. Wheeler that supported this restriction, the trial
court was well within its discretion to require P.R.C. sleep in her own room. This
restriction is reasonably related to the identified harm to the child.
25 Report of Proceedings (Feb. 1, 2012) at 411 -12.
13
No. 68424-8-1/14
Varn argues that precluding P.R.C. from sleeping in his room would
actually cause more harm to P.R.C. because she has never slept in her own
room. But as noted above, this requirement is based on Dr. Wheeler's trial
testimony and conditioned on the case manager's recommendation. Moreover, it
could be altered depending on the case manager's observations of P.R.C.'s
progress. Thus, Varn's argument is not persuasive.
The third challenged restriction limited Varn from having his parents
present for more than 20 percent of his time with P.R.C. during stages one and
two of the residential schedule. Again, this restriction was supported by the trial
court's findings:
Varn's opportunities to parent and to learn from the
opportunities must in large part be without the presence of his
parents. The court recognizes that there are several cultural
aspects to the history of the marriage and these may or may not
include the paternal grandparents approach and influence. Or it
may be due to Varn being an only child, or likely a combination of
both. Whatever the antecedents of the extended family dynamic
the so called "team" approach at this time needs to stop. Therefore
Varn's residential time must exclude his parents with occasional
exceptions which may include [P.R.C] visiting her grandparents in
Tucson consistent with the other provisions of the plan.[2 ]
The trial court's findings appear to provide two reasons for the restriction on the
involvement of Varn's parents: (1) provide Varn with opportunities to parent, and
(2) improve the "family dynamic."
As discussed above, the trial court found that Varn was "unwilling or
unable to establish boundaries, routines, schedules, and structure," but he was
willing to work on following P.R.C.'s "set schedule for meal times, bed times,
26 Clerk's Papers at 93-94.
14
No. 68424-8-1/15
wake up times, etc" Ensuring that Varn mostly spends time with P.R.C. alone
was a reasonable way to ensure that Varn establishes "boundaries, routines,
schedules, and structure" for P.R.C. while still allowing the grandparents to be
involved in P.R.C.'s life.
Moreover, Drs. Wheeler and Hedrick both testified that they were
concerned about the family dynamic. As noted above, Dr. Wheeler reported that
"[P.R.C] became increasingly aligned with the father and paternal grandparents
and relatively less aligned with the mother and maternal grandparents," which
she described as harmful to P.R.C. Dr. Hedrick testified that the data in Dr.
Wheeler's report made her "suspicious that these in-laws and this father had
made it very difficult for this mother to have a reasonable relationship with the
child."
Johnston, a neighbor, and , Neha's mother, testified that Varn and his
parents seemed to encourage P.R.C. to choose Varn over Neha.
Again, restricting the amount of time Varn's parents can spend with Varn
and P.R.C. was a reasonable way for the court to change and improve the family
dynamic that had developed.
Varn argues that Dr. Wheeler did not identify any problem with P.R.C.'s
relationship with Varn's parents and recommended that Varn and Neha support
this relationship. While Dr. Wheeler noted in her report that P.R.C.'s relationship
with her grandparents should be supported by her parents, as discussed above,
she also explained that the family dynamic that had developed with Varn and his
parents was harmful to P.R.C. Thus, this argument is not persuasive.
15
No. 68424-8-1/16
Varn argues that any effort to undermine Neha and P.R.C.'s relationship is
no longer a problem because Neha and Varn live separately. Again, this view is
contrary to Dr. Wheeler's recommendation. Thus, this argument fails.
Varn points out that Neha did not request the grandparent restriction.
That is irrelevant. The trial court's duty is to determine whether the child's best
interests require the imposition of restrictions irrespective of whether a party asks
for such restrictions.27 The trial court did so in this case.
In sum, these challenged restrictions were supported by the trial court's
findings and were reasonably calculated to address Varn's parenting history,
which had an adverse effect on P.R.C.'s best interests. The trial court did not
abuse its discretion in imposing these restrictions on Varn in the parenting plan.
UNPROVEN SEXUAL ABUSE ACCUSATIONS
Varn argues that the trial court failed to consider the distorting effects of
the unproven sexual abuse accusations. There is no support in the record for
this argument.
If sexual abuse accusations are proven, the trial court is "required to
restrict [a parent's] residential time and to eliminate the mandatory alternative
dispute resolution and mutual decision-making provisions of the parenting
plan."28 But if the sexual abuse accusations are unproven, the trial court still has
discretion under RCW 26.09.191 (3)(d) to place restrictions or limitations on a
27 See Katare. 175 Wn.2d at 35-36.
28 Watson. 132 Wn. App. at 232 (citing RCW 26.09.191 (1)(b), (2)(a)(ii)).
16
No. 68424-8-1/17
parent if the evidence supports a finding that the parent's "involvement or
conduct" has an adverse effect on the child's best interests.29
There is nothing in this record to show that the restrictions here were
imposed based on sexual abuse. Rather, they were imposed based on other
documented harm to the child's best interests.
Varn primarily relies on In re the Marriage of Watson30 to support his
argument. There, Division Two concluded that "the trial court exceeded its
authority and abused its discretion in limiting [a father's] visitation after finding
that the sexual abuse allegations were unprove[n]."31 In that case, the mother
obtained a protection order against the father alleging that the father had sexually
abused their daughter after a final parenting plan was in place.32 At first the
father had no contact with his daughter and then he had two hours of
professionally supervised visits for over two years.33 After finding that the
allegations were unproven, the court did not reinstate the parent's original
parenting plan but added more restrictions on the father's visitation under RCW
26.09.191 {3){6).M
29 Id,
30 132Wn. App. 222>, 130 P.3d 915 (2006)
31 Watson. 132Wn. App. at 225.
32 Id, at 226.
33 id.
34 Id. at 228.
17
No. 68424-8-1/18
Division Two acknowledged that the mother did not ask for restrictions
under RCW 26.09.191, and thus, the issue was not properly before the court.35
But, Division Two concluded that substantial evidence did not support the trial
court's decision to restrict visitation under RCW 26.09.191 (3)(d):
The court found that conflict between the parents escalated
following the entry of the parenting plan, but there are no findings
indicating that [the father] caused the conflict. The court also found
that [the daughter] had a subjective perception of sexual abuse and
visitation anxiety but not that [the father] caused it.
On the contrary, the evidence shows only that [the father] did
the "most parenting he could" under the restrictive conditions
available to him. In the absence of substantial evidence
establishing a nexus between [the father's] "involvement or
conduct" and the impairment of his emotional ties with [the
daughter], the trial court erred in imposing visitation restrictions
under RCW 26.09.191 (3)(d).[36]
Division Two explained that the sole basis for the requested restriction was the
sexual abuse allegations, and most of the litigation focused on whether the
sexual abuse actually occurred.37 The record in thatcase did not support the
finding that emotional ties between the father and daughter were absent or
impaired, which was required for a restriction under RCW 26.09.191 (3)(d).38
In contrast to Watson, here, the trial did not base any part of its decision
on whether Neha's accusations or concerns about sexual abuse were proven.
Instead, the trial court imposed restrictions on the basis that Varn's "parenting
35 id, at 233.
36 id, at 234.
37 id, at 232-33.
38 Id. at 233-34.
18
No. 68424-8-1/19
history has had an adverse effect on the child's best interest," which fell under
the catch-all provision of RCW 26.09.191 (3)(g). Unlike Watson, the trial court
expressly found that Varn was an "ineffective parent" for a variety of reasons
unrelated to sexual abuse. As discussed above, the trial court's findings are
supported by substantial evidence, which in turn support the restrictions and
limitations.
Varn argues that the effect of the accusations was that he had nearly one
year of supervised visitation with P.R.C. leading up to the trial. He contends that
the supervised visitations impacted Dr. Wheeler's observation of Varn, and they
did not allow him the opportunity to show the improvements he was making. He
argues that the trial court should have "disregarded Varn's marginalized status
during the temporary orders ... [and] looked instead to the situation that existed
prior to Neha's accusations." But the trial court's findings demonstrate that it did
just that. The trial court looked at the family situation before the temporary order
and supervised visitation were in place, and it still found that restrictions were
necessary.
Varn also contends that the trial court improperly credited all of P.R.C.'s
improvement to Neha's parenting and did not consider that her improvements
could be developmental. There simply is no support in the record for this
assertion. There is no need to further address this argument.
Finally, Varn argues that RCW 26.09.002 provides that "the best interests
of the child is ordinarily served when the existing pattern of interaction between a
parent and child is altered" as little as possible. This is a correct statement of the
19
No. 68424-8-1/20
law. But that statute does not overcome the requirements of RCW
26.09.191 (3)(g), which control here.
CULTURAL CONSIDERATIONS
Varn argues that the trial court's restrictions regarding co-sleeping and his
parents' involvement denied his right to substantive due process and equal
protection because the court failed to consider the family's Asian Indian culture.
These arguments have no merit.
The Fourteenth Amendment of the United States Constitution protects the
freedom of "'intimate association,'" which is derived from substantive due process
concepts.39 The United States Supreme Court has recognized thatthe right to
"'intimate association'" protects "'the choices to enter into and maintain certain
intimate human relationships [that] must be secured against undue intrusion by
the State.'"40 These "intimate human relationships" include "the raising and
educating of one's children"41 and "cohabitation with one's relatives."42
Additionally, RCW 26.09.184(3) provides that a "court may consider the
cultural heritage and religious beliefs of a child" when establishing a permanent
parenting plan. "Moreover, parenting plans are individualized decisions that
39 City of Bremerton v. Widell. 146 Wn.2d 561, 575, 51 P.3d 733 (2002)
(quoting Roberts v. United States Javcees. 468 U.S. 609, 618,104 S. Ct. 3244,
82 L Ed. 2d 462 (1984)).
40 id, at 576 (quoting Roberts. 468 U.S. at 617-18).
41 id, (citing Pierce v. Society of the Sisters of the Holy Names of Jesus
and Mary. 268 U.S. 510, 45 S. Ct. 571, 69 L Ed. 1070 (1925)).
42 id, (citing Moore v. City of E. Cleveland. 431 U.S. 494, 97 S. Ct. 1932,
52 L Ed. 2d 531 (1977)).
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depend upon a wide variety of factors, including 'culture, family history, the
emotional stability of the parents and children, finances, and any of the other
factors that could bear upon the best interests of the child.'"43
As discussed above, the trial court restricted P.R.C. from sleeping in the
same room as Varn and limited the involvement of Varn's parents. Before
imposing these restrictions, the trial court appeared to take the family's culture
into consideration in establishing the parenting plan. In the Memorandum
Findings on Trial, the trial court recognized that "there are several cultural
aspects to the history of the marriage and these may or may not include the
paternal grandparents approach and influence." The trial court also heard
testimony from Varn and Neha that it was customary in Indian culture for parents
to sleep with their children and to have grandparents live with them and help
provide care.
The trial court did not completely prohibit the paternal grandparents'
involvement or co-sleeping with Neha and thus appears to have considered
these cultural norms. Instead, the trial court put restrictions on Varn because it
found that his approach to these two practices were adverse to P.R.C.'s best
interests. As discussed earlier, a parenting plan that complies with the statutory
requirements to promote the best interests of the child does not raise an issue of
constitutional magnitude or violate a parent's constitutional rights. 44
43 In re the Parentage of Jannot. 149Wn.2d 123,127, 65 P.3d 664 (2003)
(emphasis added) (quoting In re the Parentage of Jannot. 110 Wn. App. 16, 19-
20, 37 P.3d 1265 (2002)).
44 See Katare. 125 Wn. App. at 823.
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Varn also argues that the "trial court's rulings on these issues amounted to
national origin discrimination," which violated Varn's right to equal protection. But
Varn fails to cite any authority to support this assertion or provide any other
argument beyond this statement. Thus, we need not address this argument.45
ATTORNEY FEES
Varn requests an award of attorney fees and costs. Neha did not request
fees. We conclude Varn is not entitled to an award of fees or costs.
RCW 26.09.140 provides for fees on appeal in a dissolution matter.
"Upon any appeal, the appellate court may, in its discretion, order a party to pay
for the cost to the other party of maintaining the appeal and attorneys' fees in
addition to statutory costs."46
We have considered the respective financial declarations that both parties
filed and conclude an award of fees is not warranted.
We affirm the parenting plan.
£z?(,J.
WE CONCUR:
<,/A^-/f,Cd stS/AA-fAQe* I
45 See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828
P.2d 549 (1992).
46 RCW 26.09.140.
22