Simon Bruce Sotheron, Appellant V. Meagan Anastasia Palmer, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of
E.S.S.,
C.E.I.S.,
Minor Children.
SIMON BRUCE SOTHERON,
Appellant,
and
MEAGAN ANASTASIA PALMER,
Respondent.
Grosse, J. - When substantial evidence supports the trial court's finding
that a parent's coercive and controlling behavior had an adverse impact on the
children's best interests, the court's imposition of restrictions on that parent's
residential time is a proper exercise of discretion.
FACTS
Simon Sotheron met Megan Palmer around 2003. 	Palmer was in her
early twenties when they met and was 12 years younger than Sotheron. 	Palmer
had a six-year-old son, D.P., at the time. 	Around June of 2004, Palmer and D.P.
moved in with Sotheron into a house that Sotheron owned. 	The couple never
married but Sotheron assumed a parental role in D.P.'s life. 	In 2005, Sotheron
and Palmer had a son together, E.S. 	In 2006, they had a daughter, C.S.
The couple separated in October 2007. 	During the separation, Palmer
lived 	in an 	apartment near Sotheron's house and 	the 	two divided parenting
responsibilities and shared the children equally. 	During most of the separation,
Sotheron covered Palmer's living expenses, including those for D.P., with whom
) 	No. 69446-4-1
) 	DIVISION ONE
) 	UNPUBLISHED OPINION o
	r*o 	C.o CD
	era
-r-
—! 	j	
Z~?. 	H", 	*	•Jx* 	ri
~o
"2^cB
r • 	< -"» :- . (
c5
CO 	.; ,-._;
) 	FILED: March 10, 2014 	v..'J :-;

No. 69446-4-1 / 2
he still spent significant time together. 	In June 2009, the couple reconciled and
Palmer moved back into Sotheron's house.
The couple continued to have difficulties and in February 2010, Palmer
moved 	out 	permanently. 	During 	this 	time, 	Palmer 	and 	Sotheron 	began
exchanging the children equally again and Sotheron continued to support them
and Palmer. 	Palmer and the children were completely dependent on Sotheron
financially 	and 	he 	estimated 	that 	he 	paid 	Palmer approximately $4,500 	per
month. 	Sotheron continued to transport the children to and from school because
Palmer had no vehicle.
Disputes between the parties arose about the amount of support Sotheron
was to pay Palmer. 	Sotheron also sought to reconcile with Palmer and began to
show up at her home unannounced, call her repeatedly, and send excessive e-
mails and texts begging her to come back. 	He also began following D.P. and
contacting him outside of the home.
Both Palmer and Sotheron were involved in new relationships during this
time. 	Palmer began dating Robin Tafoya in March 2010. 	Sometime after that,
Sotheron began dating Annie Njuguna, a single mother in her early twenties. 	At
the time of trial, Njuguna was pregnant with Sotheron's child.
At the end of April 2010, Palmer sent Sotheron a text message asking that
he return some of the children's belongings, pay her for child related bills, and
give her a pharmacy card. 	She also asked that he not discuss his negative
opinions of her personal life in front of the children. 	The message further stated
that if he did not address these issues and pay child support by the end of the

No. 69446-4-1 / 3
week, he should not pick up the children, and she would file for full custody
because he has "neglect[ted his] parental responsibilities."
In late May 2010, she sent him a text message stating that she was upset
that he would not pay to have C.S.'s cavities filled or D.P.'s piano tuned, and that
she was going to keep the children indefinitely and file for full custody and child
support if he did not "honor [his] previous commitments" to her and the children.
She again asked for the return of the children's belongings, payment of bills, and
reimbursements for child related expenses. 	She also asked for "[t]he family
vehicle 	or 	a 	replacement," 	and 	for 	him 	to 	discuss 	an 	additional 	property
settlement. 	She further stated that if he refused to address these issues, she
would take him to court and he would likely be ordered to pay the maximum in
child 	and 	spousal 	support and 	give her 	half of his assets. 	Sotheron then
calculated what the maximum amount of child support a court might order and
based on that calculation, deposited $1,500 into Palmer's account on June 30,
2010.
On July 30, 2010, Palmer sent Sotheron a text message stating that he
was to have no contact with the children or her, and that she would no longer
tolerate his "irrational behavior and harassment." 	She told him to stay away from
her friends and family, "especially [D.P.]" 	She stated that if he tried to contact
them, she would file for a no contact order. 	On that same day, Sotheron filed a
petition for a court ordered parenting plan and child support.
On September 1, 2010, Sotheron filed a proposed parenting plan. 	On
September 9, 	2010, 	Palmer filed 	a petition for a protection 	order restricting

No. 69446-4-1 / 4
Sotheron's contact with Palmer and the children. 	The court issued a temporary
protection order with a hearing date set for September 23, 2010. 	On September
23, 2010, Palmer failed to appear for the hearing. 	Sotheron appeared and the
court set another hearing date of October 7, 2010.
On October 7, 2010, the court extended the temporary order to November
4, 2010, to allow Palmer to retain counsel for the hearing on that date. 	The court
also authorized Sotheron to have supervised visitation with the children. 	On
November 4, 2010, the court again extended the order to a new court hearing
date that was set for November 18, 2010. 	The court also ordered that Sotheron
have unsupervised visitation, finding no basis for requiring supervised visits at
that time. 	The court further set a residential schedule pending the hearing and
appointed a Guardian Ad Litem (GAL), Pam Edgar. 	On November 18, 2010, the
court granted another continuance at Palmer's request and continued the hearing
to December 7, 2010.
On December 7, 2010, the court ordered a temporary parenting plan that
was 	essentially 	the 	shared 	parenting 	schedule 	Sotheron 	and 	Palmer 	used
previously. 	The 	order 	provided 	that 	any 	restrictions 	on 	contact 	would 	be
reserved 	pending the GAL's investigation. 	The court also entered 	an 	order
dismissing the protection order, finding that "[a] preponderance of the evidence
has not established that there is domestic violence/stalking."
In January 2011, the parties participated in an evaluation with the GAL,
which included interviews with Sotheron and Palmer, and home visits with the
children. 	The GAL also interviewed Sotheron's girlfriend Njuguna. At some point

No. 69446-4-1 / 5
in February 2011, Njuguna contacted the GAL to relay concerns she had about
Sotheron. 	She said that Sotheron had quizzed her about what she might tell the
GAL and that he "pressured her to the point of insanity to abort a[n earlier]
pregnancy." 	She further 	reported that when she became pregnant a second
time, he "kept her up all night badgering her and trying to convince her to have
another abortion, and that she spontaneously miscarried," she believed, as a
result of that pressure.
Njuguna e-mailed the GAL a few more times and on April 18, 2011, she
contacted the GAL to tell her that Sotheron had assaulted her while they were
away in Las Vegas, Nevada together. 	According to Njuguna, she and Sotheron
had a fight in the hotel room over her reading e-mails on his phone without his
permission, there was a struggle over the phone and she called the police.
According to the police report, she said he forced the door closed when she tried
to leave. 	After the police left, she flew back to Seattle by herself. 	On April 21,
2011, she faxed a letter to the district attorney in Nevada requesting dismissal of
the charges.
In 	April 	2011, 	the GAL 	issued 	a 	report 	recommending 	a 	residential
schedule that would have the children reside with Sotheron every other weekend
from Friday to Monday and every Wednesday from after school until Thursday
morning. 	The GAL further recommended that Sotheron seek treatment. 	Palmer
then requested that the temporary parenting plan be revised consistent with this
recommendation.
On July 6, 2011, a commissioner amended the temporary parenting plan

No. 69446-4-1 / 6
and 	required 	Sotheron 	to 	enroll 	in a 	state certified 	domestic violence 	(DV)
treatment program. 	The amended temporary parenting plan provided that his
residential time would begin once the GAL verified that he began treatment and
specified David Vandegrift as his treatment provider. 	The amended temporary
parenting plan also provided for a new residential schedule allowing Sotheron to
be 	with the 	children 	every 	other weekend 	and 	every 	other Wednesday on
opposing weeks.
The parties proceeded to trial on the final parenting plan. 	Before trial, the
parties 	returned 	to 	the 	GAL 	for 	an 	update 	to 	determine 	whether 	her
recommendations should be modified based on Sotheron's treatment progress
and the children's adjustment. 	The report noted that Vandegrift reported that
Sotheron had not disclosed his arrest for assault in Las Vegas and that Njuguna
had contacted Vandegrift to report that Sotheron had been harassing her to
terminate her current pregnancy and even offered her $25,000 to abort it. 	The
GAL's report recommended that her previous recommendations remain in place,
noting that "Annie[ Njuguna]'s reaching out to Simon's DV treatment provider is
cause for concern," and that Sotheron's behavior demonstrated that he had not
successfully completed treatment:
Simon suggested that since he is in compliance with his treatment
program 	the parenting 	plan 	should 	return 	to a fifty-fifty 	shared
parenting 	plan. 	However, 	it is one thing 	to be in 	compliance,
(attending and participating) and another to demonstrate behavioral
change. The program Simon is in is demonstration based not time
based. Participants "graduate" when they have both acknowledged
and 	demonstrated 	an 	understanding 	on 	the 	impact 	on 	others.
According 	to Mr. 	Vandergrift [sic] 	this has not occurred to the
degree desirable.

No. 69446-4-1 / 7
At trial, Palmer testified that Sotheron parented in a controlling and critical
manner, too 	harshly disciplined the children, and had 	unrealistic expectations
and standards for the children. 	For example, he would require D.P. to make his
bed with military corners at age six and if they were not perfect, he would rip the
sheets off the bed and make him redo it several times again perfectly. 	Palmer
also testified that if D.P. closed the toilet seat loudly, Sotheron would make D.P.
open and close it several times and would make him do it all over again if D.P.
"messed 	up." 	She 	recalled 	that they would 	"be 	in there for 	half 	an 	hour
sometimes with [D.P.] just in tears. . . ." For punishment, Sotheron made D.P. sit
in the middle of the back yard outside in the dark at night, while 	D.P. 	cried.
Palmer also testified that Sotheron often put down D.P. verbally and called him
names.
Palmer further testified that Sotheron was obsessive with the children's
homework, tracking every bit of school work D.P. did at age six. 	She described
an incident when he dumped out D.P.'s desk at school and scolded him for not
being tidy. 	She also testified that Sotheron made D.P. write in cursive before it
was required in school and D.P. would spend hours crying at the table doing his
homework because it was never up to Sotheron's standards.
Palmer 	testified 	that 	Sotheron 	treated 	her 	similarly. 	She 	was 	the
homemaker, raising the children, and tending to all the household tasks, and he
was extremely critical of her efforts. 	According to Palmer, he expected her to
"cater to all of his needs" and would scold her if she failed. 	For example, he
would scold her if she was too exhausted to drive him to work in the morning

No. 69446-4-1 / 8
because she had been up all night with the baby, if she cleaned one bathroom
but not the other, or did half the laundry. 	He also photographed anything he
viewed as imperfections, such as dirty dishes, unfinished laundry, and cigarette
butts she had discarded. 	He even videotaped her drinking wine and smoking
and threatened to show everyone what a terrible mother she was. 	He kept her
on a weekly cash allowance, which he would withhold if he was displeased with
her performance of the household tasks.
Palmer further testified that Sotheron's displeasure would often escalate to
anger that frightened her and at times, prompted her to try to leave. 	During one
incident, in August 2005, she eventually called the police after "hours and hours"
of him following 	her around the 	house and 	badgering her. 	She tried locking
herself in the bathroom but had to come out to comfort the children who were
scared by Sotheron's "storming around the house." 	To keep her from leaving,
Sotheron collected 	her personal belongings and 	locked them 	in the 	garage.
Police arrested Sotheron, but no charges were filed.
Palmer also described another incident when he first 	became physical
with her in front of D.P. She was pregnant with E.S. and during an argument, he
grabbed and shook her, then gave her a push, injuring her lip and causing it to
bleed. 	Sotheron left and as she was trying to call the police, he returned and
apologized. 	She never called the police. 	Palmer also testified about another
incident in 	August 2006, where she 	called 	the police and reported that he
tampered with the home telephone line in an attempt to prevent her from calling
the police. 	He was arrested but no charges were filed.
8

No. 69446-4-1 / 9
Sotheron testified that his relationship with Palmer was always volatile and
that she often escalated their arguments. 	He said she would often hit Sotheron
or grab his keys or wallet and if he tried to drive away, she would throw things at
the car. 	He described an incident when he called the police after Palmer threw a
picture frame at him and it missed and broke a window. 	He testified that she
would 	hit, 	pinch, 	or 	spank 	the 	children 	for 	discipline, 	whereas 	he 	used
discussions and time-outs. 	As for homework, he felt Palmer was too lax about if
and when 	it was completed, while he believed 	it was important to make 	it a
priority and have it done promptly.
Sotheron also presented evidence of a Child Protective Services (CPS)
referral 	against Palmer on December 5, 2010, when the 	police were called
because four-year-old C.S. was found wandering down Jackson Street in her
pajamas at 6:30 a.m. 	The police located the other two children asleep in the
apartment and determined that C.S. had left through the back door of her ground
floor apartment looking for Palmer. 	They woke D.P., who told them his mother
went out for the 	night with friends and provided 	her phone number. 	They
eventually reached Palmer after contacting Robin Tafoya. 	Palmer came home
and explained that she had too much to drink and went to her boyfriend's to
sleep it off. 	A referral was made to CPS, but it was determined that the
"information 	reported 	did 	not 	meet 	the 	sufficiency 	screen 	for 	a 	CPS
investigation."
The GAL testified consistent with her report. 	Vandegrift testified that he
determined 	that 	Sotheron 	met 	the 	criteria 	to 	participate 	in a 	DV treatment

No. 69446-4-1/10
program, noting that while Sotheron had not harmed his victims physically or
sexually, 	his 	behavior 	had 	a 	severe 	emotional, 	psychological, 	and 	financial
impact on Palmer. 	He further testified:
The thing, the issues that I went ahead and identified as severe
level is the chronicity of the verbal violence was consistent, denial
of the 	risk 	for 	noncompliance 	measures 	- 	I noted 	"Denial 	of
responsibility, 	blames 	victims, 	blames 	circumstances, 	justifies
violence, minimization, attempts to withhold information, attempts to
confuse or distort info." The violence risks I identified as obsessing
or dwelling on the victim 	in that 	he 	was 	identifying her 	as the
primary aggressor.
The trial court found that there was no domestic violence in this case to
support a restriction on Sotheron's time with the children under RCW 26.09.191.
But the court did make a finding that his time should be restricted under RCW
26.09.191 (3)(g), 	based 	on 	"a pattern 	of coercive 	behavior without 	physical
violence 	in 	this 	case." 	The 	court 	restricted 	Sotheron's 	time 	to 	alternating
weekends and Wednesday nights with the children. The court also prohibited the
parents from 	removing the 	children out of state without agreement or court
approval for 18 months. 	The 	court rejected 	Sotheron's 	request 	to apply
restrictions to Palmer's residential time under RCW 26.09.191 (3)(f), based on her
withholding of the children for a protracted period without good cause.
The 	court 	ordered 	a 	final 	parenting 	plan 	that 	included 	the 	above
restrictions. 	The 	parenting plan did not require Sotheron 	to continue DV
treatment unless he wished to do so, but did indicate that "the father needs
continuing treatment of some form, which should be determined by the father."
Sotheron moved for reconsideration of the final parenting plan order, which was
denied. 	Sotheron appeals.
10

No. 69446-4-1 /11
ANALYSIS
I. 	RCW 26.09.191 (3)(f) Restrictions: Withholding Access to Child
Sotheron contends that the trial court erred by failing to restrict Palmer's
residential time under RCW 26.09.191 (3)(f), which permits the court to "preclude
or limit any provisions of the parenting plan" if "[a] parent has withheld from the
other parent access to the child for a protracted period without good 	cause."
Sotheron contends that Palmer withheld the children from him because he would
not comply with her demands for money, which does not constitute good cause.
We review a trial court's ruling on provisions in a parenting plan for an
abuse 	of discretion.1 	We will 	uphold 	the trial 	court's findings 	if substantial
evidence exists in the record to support it.2 	"So long as substantial evidence
supports the finding, 	it does not matter that other evidence may contradict it.
This is because credibility determinations are left to the trier of fact and are not
subject to review."3
The 	trial 	court 	denied 	Sotheron's 	request 	to 	impose 	restrictions 	on
Palmer's residential time under RCW 26.09.191 (3)(f) for withholding the children,
finding:
The mother did withhold the children after July 30th. 	The petition
was filed July 30th. From the evidence of the emails, some of the
reasons were money promised for support, money being sought,
the holding of possessions of the children. 	Other reasons were
harassment and, from her testimony, the concern she had with the
father following [D.P.], who is not a part of this proceeding. 	An
order 	of 	temporary 	protection 	was 	sought 	and 	granted 	on
1 In re Marriage of Littlefield. 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).
2 Burrill v. Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
3 Burrill, 113 Wn. App. at 868 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794
P.2d 850 (1990)).
11

No. 69446-4-1/12
September 9th. 	There was [sic] a number of continuances and the
father was finally granted some residential time on October 7th by
the court. The protection order was ultimately dismissed. 	There
was 	subsequently 	a 	report 	from 	the 	guardian 	ad 	litem
recommending that the court find a domestic violence restriction.
The court concludes in term of this issue that there was a
withholding. Some of the reasons were for good cause: the reasons
of harassment, 	domestic 	violence, the following 	of [D.P.] Some
were not for good 	cause: 	the seeking of funds, 	the seeking of
monies that had not been agreed. 	Whether or not there was a
protracted 	period, 	the 	period 	under 	the 	mother's 	control 	was
relatively short, from September 30th until the court was issuing the
orders. 	So 	based 	upon 	these 	facts, 	the 	court 	does 	not find
sufficient evidence to support the finding by a preponderance.
The trial court's finding is supported by substantial evidence. 	The July 30,
2010 text references the harassment and following of D.P.:
You are to have no contact with my children or myself in anyway. 	I
will not tolerate your irrational behavior and harassment anymore.
If you choose to disregard my request I will immedietly [sic] file a no
contact order. 	No calls, emails, text messages, mail, stay away
from my friends and family. And especially stay away from [D.P.]
Palmer also testified to such facts as follows:
The 	last straw for 	me was when 	he 	had 	started following 	and
confronting D.P. 	He was terrified. And that's when I called Simon
and I said, "This is it. You can't show up at our place unannounced.
I need you to stop calling excessively late at night and texting and
emailing and you have got to stop following us around." I said, "If
you don't, I'll have to file a restraining order." 	And he refused. 	He
said, "You're not going to tell me what to do, and I have every right
to 	see [D.P.] 	and 	I have every right to 	contact you and try to
communicate with you." 	And I said, "Actually you don't. 	Not like
that. 	If it's with 	regards 	to 	the 	children, 	yes." 	As 	far 	as 	us
discussing the relationship and that's the stuff he wanted to talk
about and control issue, I said, "Absolutely not."
Additionally, 	Palmer testified to Sotheron's following of D.P. and its negative
effect on D.P. 	While Sotheron seems to suggest that evidence relating to D.P. is
not relevant because he is not a party to the proceeding, it was in fact relevant to
12

No. 69446-4-1/13
her withholding of the children, which included D.P., and the undisputed evidence
established that he had a significant relationship to the other children and that
Sotheron acted as a parent to him.
The other texts also refer to Sotheron's negativity toward Palmer in front of
the 	children 	as "tremendously" affecting the children, 	his neglect of parental
responsibilities other than those that were financial, and her inability to transport
the children without use of the vehicle that was within his control. 	Thus, while
Sotheron is correct that, as the trial court recognized, there may have also been
improper reasons for withholding the children, the trial court's finding that there
were other reasons sufficient to establish good cause is supported by the record.
And the statute is clear that imposition of restrictions for withholding children is
not mandated, as Sotheron seems to suggest, but is discretionary with the court.4
Sotheron fails to show that the trial court abused its discretion by declining to
impose restrictions on this basis when there were some legitimate reasons for
the withholding.
II. 	RCW26.09.191(3)(g) Restrictions: Coercive and Controlling Behavior
Sotheron contends that the trial court erred by imposing restrictions on his
residential time under RCW 26.09.191 (3)(g) based on a finding that his pattern of
coercive and controlling behavior had an adverse impact on the children's best
interests. We disagree.
RCW 26.09.191 (3)(g) provides:
(3) A parent's involvement or conduct may have an adverse
4 RCW 26.09.191 (3)(f) (providing that the court "may" preclude or limit any
provisions of the parenting plan, if any of the listed factors exist).
13

No. 69446-4-1 /14
effect on the child's best interests, and the court may preclude or
limit any provisions of the parenting plan, 	if any of the following
factors exist:
(g) Such other factors or conduct as the court expressly finds
adverse to the best interests of the child.
As noted above, we review the trial court's decision to impose restrictions on this
basis for an abuse of discretion.
Here, the trial court found:
The court finds that father's time with the children should be
restricted pursuant to RCW 26.09.191 (3)(g)(such other factors or
conduct as the court expressly finds adverse to the best interest of
the child). Specifically, the court finds there is a pattern of coercive
behavior 	without physical 	violence 	in this 	case 	and 	finds 	the
following 	factors that are 	adverse 	to the 	best 	interests of the
children:
1. 	There 	is 	a 	history 	of 	domestic 	violence 	arrests 	and
charges without convictions. 	There is the August 5 incident where
the mother wanted to leave and the father did not want her to leave
with the child, and he started collecting her possessions, the purse,
phone, and keys. 	When police were called and wanted a car seat
given, the father did not want police to allow her to take that car
seat. There was the 	[Aujgust 6 incident - 	the father was upset
about financial charges and he admits he pulled the phone cord.
This was six weeks 	after the 	incident where the allegations 	of
physical force were made. There was the October7 incident where
the investigation of the mother moving out was made and she
testified that he would not let her leave.
2. 	Court relies on opinions of the experts.
A. 	GAL Pam Edgar
Ms. Edgar found a pattern of coercive behavior, financial control,
some isolation, relentless pursuant [sic] in arguments, attempts by
father to prevent mother from leaving, attempts to prevent mother
from calling for aid. 	Court finds the GAL report credible. Although
the GAL's use of the term "visits" is disturbing, it is not sufficient in
itself to show bias. 	The 	GAL spoke to a 	number of collateral
resources and the court finds her report thorough and reliable.
B. 	Iren Arden. Ph.D.
Dr. Arden testified that the father was rigid, controlling of house and
could not find a worker up to his standard and has perfectionist
traits.
14

No. 69446-4-1/15
C. 	David Vandegrift, DV treatment provider
Mr. 	Vandegrift concluded 	that the emotional, 	psychological and
financial damage to mother was severe.
The court's findings also referred to Njuguna's testimony:
It was clear by her demeanor that she did not want to testify and
exhibited fear on the stand. Ms. Njuguna is young, single and is
pregnant 	with 	petitioner's 	child 	who 	offered 	her 	$25,000 	to
terminate the pregnancy.
Most compelling to the court is it appears that while this case was
pending, 	father 	is 	reenacting 	the 	pattern 	that 	he 	had 	with the
mother in this case. This includes his arrest in Nevada for domestic
violence and father's contradictory testimony about Njuguna's cell
phone, which he ends up taking with him. Ms. Njuguna reported to
the 	GAL how 	it makes 	her feel 	crazy to 	bring 	up 	statements
petitioner made.
Father did not report this 	DV arrest in Nevada to his treatment
provider.
Father replaces Ms. 	Njuguna's phone giving 	him access to her
phone information.
Father told process server that Ms Njuguna did not live at his house
and he had never heard of her. 	The testimony was clear that she
had lived there at least at some point in time and he was supporting
her to some degree. Additionally, she was calling the GAL and Mr.
Vandegrift for assistance.
All of the above factors affect parenting.
The court also considered Palmer's testimony about D.P.:
Court also 	considers 	compelling testimony 	of mother, 	Meagan
Palmer, 	regarding 	Petitioner's treatment of her son 	[D.P.] This
included testimony that Simon Sotheron 	was 	involved 	in 	every
aspect 	of their lives 	and 	with 	her son 	[D.P.] 	it 	escalated 	to
something that became a problem. With [D.P.] it was taken to a
[sic] the level of obsession - 	Petitioner would dump out [D.P.'s]
desk at school, with his handwriting petitioner made [D.P.] write
cursive before it was required and made him write every letter, if
one wrong, he would erase it and make [D.P.] write it over and over
constantly. This type of behavior was a major source of our conflict
between the parents. Petitioner would make [D.P.] make the bed
with military corners and close the toilet seat over and over if [D.P.]
closed it too hard. 	Mother testified that [D.P.] had no space, he
was walking on egg shells, the punishment was too severe.
As detailed above, the record supports the trial court's findings. 	While Sotheron
15

No. 69446-4-1 /16
contends that many of the facts were disputed, we cannot disturb the court's
findings.
Nor does Sotheron show that the trial court abused 	its discretion 	by
imposing 	the 	restrictions 	based 	on 	these 	findings. 	"By 	its 	terms, 	RCW
26.09.191(3) obligates a trial court to consider whether '[a] parent's involvement
or conduct may have an adverse effect on the child[ren]'s best interests.' ... 	To
make this determination, the court must engage in a form of risk assessment."5
Palmer's 	testimony 	established 	that 	Sotheron's 	controlling 	and 	coercive
parenting tactics had negative effects on D.P., which was relevant to assessing
the possibility of future harm of such behavior to the other children.6 Additionally,
the GAL testified to the adverse effects of Sotheron's unlimited involvement with
the children:
I felt 	that 	there 	was 	more 	likely than 	not 	evidence 	of 	.191
restrictions, 	both 	in terms 	of his 	ability to 	provide 	a 	safe 	and
conflict-free and non-abusive household, as well as concerns about
his overall inflexibility and the implications for parenting.
And so that tendency to be 	rule bound 	and 	inflexible becomes
really difficult as kids get older and they try to assert autonomy. The
other thing about it is it tends to be performance and task based so
that 	kids 	in those 	environments feel 	that affection 	and 	love 	is
conditioned 	on 	doing things 	right, 	not 	making mistakes, 	being
perfect, 	having 	high 	performance. 	So 	kids 	become 	anxious
because 	they're 	stressed 	by that, 	and 	at 	times, 	they 	become
resistant and act out.
Accordingly, that Sotheron's coercive and controlling behavior was adverse to
5 Katare v. Katare, 	175 Wn.2d 	23, 	39, 	283 	P.3d 	546 (2012) 	(alterations 	in
original).
6 See Katare, 175 Wn.2d at 39 ("deciding whether to impose restrictions based
on a threat of future harm necessarily involves consideration of the parties' past
actions").
16

No. 69446-4-1/17
the children's best interests was a reasonable conclusion based on the evidence.
Sotheron 	fails 	to 	show 	the 	trial 	court 	abused 	its 	discretion 	by 	imposing
restrictions on this basis.
III. Restrictions on Travel
Sotheron challenges the 	restriction in the parenting plan prohibiting the
parents from 	removing the 	children out of state without agreement or court
approval for 18 months. 	The parenting plan initially required court approval or
agreement of the parties to remove the children out of state. 	Sotheron, who is
Australian, 	asked the court to clarify that provision to allow him to travel to
Australia with the children to visit his parents who would soon be celebrating their
50th anniversary. 	Palmer opposed this request, contending that she had "trust
issues" with Sotheron. As her attorney explained:
Australia is almost a full day of travel. 	It's a 21-plus hour flight, and
these are a five- and a seven-year-old child. 	And that in and of
itself. 	The kids are not in a position to advocate for themselves in
any way, shape, or form if things became uncomfortable for them or
they weren't feeling safe, they have no cognitive and physical ability
to reach out for help. So it's the duration, the youth of the children.
The court then decided to just limit the restriction to 18 months, explaining:
Given the age of the children, given the high conflict nature of this
action. And after that, there can be other arrangements. 	But I don't
think there's a sufficient showing. 	After that, I'm hoping that after
time, the amount of conflict lessens, the children will 	be older,
they'll have more ability to raise any concerns that they have, so I'm
going to limit 3.13 for the next 18 months.
Sotheron fails to show that the trial court abused its discretion. 	While there was
no threat of abduction, there was already a basis for restricting his residential
time and the court simply extended this to travel with the children. 	Additionally,
17

No. 69446-4-1/18
the restriction was temporary and reasonably calculated to address the identified
harm.7 	Indeed, as the parties acknowledged at oral argument, the 18-month
restriction period is either at or near expiration, which will render the issue moot.
IV. Mother's Level of Involvement with the Children
Sotheron next contends that the trial court improperly considered Palmer's
level and extent of involvement with the children while the parenting plan action
was pending because she was only able to do so after withholding the children
and seeking temporary protection orders and parenting plans that restricted his
time.8 	But as Palmer correctly notes, the involvement to which the court referred
was throughout the children's lives, not just during the pendency of the parentage
action:
There's no disagreement that the mother was the stay-at-home
parent. 	She took greater responsibility for the daily needs of the
children. 	There's no disagreement that the father was involved with
the children, particularly regarding homework and school. Each of
them 	has 	a 	stable, 	loving relationship 	with the 	children. 	The
mother's relationship the court would find is stronger at this point
due to the level and extent of her involvement.
The record supports this finding. 	Sotheron's argument is therefore without basis.
V. 	Hearsay Statements
Finally, Sotheron challenges the admissibility of the GAL's updated report
because it contained mostly hearsay statements, citing a recent United States
Supreme Court case holding that the confrontation clause prohibited an expert
from testifying to hearsay statements in a criminal case.9 	But as Palmer correctly
7 See Katare v. Katare, 125 Wn. App. 813, 826, 105 P.3d 44 (2004).
8 See In re Marriage of Watson, 132 Wn. App. 222, 234, 130 P.3d 915 (2006).
9 Williams v. Illinois, 	U.S. 	, 132 S. Ct. 2221, 183 L Ed. 2d 89 (2012).
18

No. 69446-4-1/19
notes and Sotheron acknowledges, the confrontation clause does not apply in
civil cases. 	Rather, the law permits the court's consideration of such hearsay in
Title 26 proceedings. As provided by RCW 26.09.220:
(1)(a) The court may order an investigation and report concerning
parenting arrangements for the child, or may appoint a guardian ad
litem pursuant to RCW 26.12.175, or both
(2) 	In 	preparing 	the 	report 	concerning 	a 	child, 	the
investigation or 	person 	appointed 	under 	subsection 	(1) of this
section may consult any person who may have information about
the child and the potential parenting or custodian arrangements....
If the requirements of subsection (3) of this section are fulfilled, the
report by the investigator or person appointed under subsection (1)
of this section may be received in evidence at the hearing.10
And as the court held in In re Guardianship of Stamm v. Crowley:
In performing his or her duties under the statute, a GAL is required
to 	consult 	with 	those 	knowledgeable 	about 	the 	allegedly
incapacitated person. 	The statute thus contemplates that hearsay
will be a basis for the GAL's opinions. 	And in order to evaluate the
GAL's opinions, the fact finder needs to know the basis for them.
We therefore hold the trial court has discretion under ER 702
to permit a GAL to testify to his or her opinions if the court is
persuaded the testimony will be of assistance, and may permit the
GAL to statethe basis for those opinions, including hearsay.11
We affirm.
WE CONCUR:
&Vl/W 	1CX
10 	Subsection 	(3) 	addresses 	procedures 	for 	report 	submission. 	RCW
26.09.220(3).
11 121 Wn. App. 830, 837, 91 P.3d 126 (2004).
19